By way of follow up to last month’s article regarding Ontario’s new Rules of Civil Procedure, this article will examine a few of the amendments not discussed in last month’s edition. The new rules seek to reduce litigation costs, simplify procedures and make the system more affordable for Ontarians.
One of the major changes to the rules is the modification of Rule 20 regarding summary motions. Under the former rule, judges were forced to accept the evidence submitted at face value, i.e., when hearing motions for summary judgment, the rule required judges to assume that everything they heard was truthful. Judges were prohibited from weighing credibility or drawing inferences; their sole task was to determine whether the defending party had any reasonable chance of success. Once their decision was made, they either dismissed the matter or allowed it to proceed to a full-fledged trial.
Under this new rule, however, judges are able to hold mini-trials where they can weigh evidence, evaluate credibility, draw inferences from the evidence and ultimately, grant judgment. The purpose of this rule seeks to increase the number of matters that can be dismissed at the outset in order to avoid the heavy costs and delays of long and expensive trials. Further, to encourage parties to settle their claims via summary motions, the Government amended rule 20.06, by removing the presumption that unsuccessful moving parties pay the defending party’s costs on a substantial indemnity basis. Prior to this amendment, unsuccessful moving parties paid nearly 75% of the defending party’s costs, which, unquestionably, deterred parties from bringing these matters forward.
Another problem under the old system was that every discovery was treated similarly. Thus, during examinations, the rights afforded to a litigant for a $100,000 claim were by and large no different than the rights afforded to a litigant for a one million dollar claim. Under the new rules, judges must now consider the notion of proportionality and can limit questions or demands for production depending on the amount in dispute and complexity of the issues. Rule 29.2.03 allows the court to make the following considerations:
- The time and expense to answer a question or produce a document;
- Whether answering the question or producing the document would interfere with progress of the specific action; and/or
- Whether the information is readily available from another source.
It is the Government’s belief that changing the former "one-size fits all" approach will lead to quicker and more efficient procedures. Likewise, amendment 31.03(4) states that before allowing multiple individuals to be examined, the court must first be satisfied these answers could not have been obtained from only one person.
A third change that seeks to limit time and costs can be found in the amendments relating to pre-trial procedures. Under the new rules, parties must attend pre-trial conferences (previously only mandatory in some court locations), and participate either in person or via telephone or video conference. To promote settlement during these meetings, each party must have authority to settle or, prior to the conference, arrange to have a person with authority to settle waiting by the phone.
Perhaps the most notable difference regarding these changes is the ability for pre-trial judges to now preside as the actual judges of the trial (should the matter proceed), provided each party consents. While many litigants may decline this option (based on genuine fears of prejudice), choosing this option will expedite the trial considering the knowledge and experience each pre-trial judge will have already obtained.
It remains to be seen whether the impact of these rules will have the intended effect. It is notable, however, that the Government of Ontario took these measures to improve our system and make it more accessible.