Recent Changes to the Rules of Civil Procedure: How do they Affect You?
August 22, 2013 | By: Oatley Vigmond
On January 1, 2010 numerous changes were enacted to the Rules of Civil Procedure (the “Rules”) that govern civil litigation in Ontario. This paper will summarize the highlights of the recent changes to the Rules with a focus on changes which will affect the day to day life of an Ontario personal injury litigation law clerk.
SERVICE OF MATERIALS
One important change is the change to the timelines for service of motion and application materials.
As of January 1, 2010 Rule 37 provides that all motion materials relied on by the moving party must be served and filed 7 days before the return of the motion. This includes the Notice of Motion, Affidavits, Facta, and Undertaking and Refusals Charts.
Previously the moving party was required to serve his or her Notice of Motion 4 days before the return of the motion and file that Notice of Motion with the Court 3 days before the return date. In addition, under the old Rules all of the moving party’s supporting Affidavits, Undertakings and Refusals Charts and Facta only had to be served and filed 2 days before the return of the motion.
The timeline for serving and filing materials on behalf of the responding party to a motion have also changed. All of the motion materials relied upon by the responding party must now be served at least 4 days prior to the return date of the motion. Previously the responding party’s materials had to be served and filed 2 days prior to the motion.
Notices of Application must still be served on Respondents inside Ontario a minimum of 10 days before the return date of the application1. However the entire Application Record and Factum must now be filed with the Court 7 days before the application is argued. This was previously 4 days. In addition, a Respondent’s Application Record and Factum must now be served and filed 4 days before the application is heard instead of the previous 2 days.
Confirmation of Motion or Application
Before January 1, 2010 motions or applications needed to be confirmed with the Court office where the motion is to be heard prior to 2:00 p.m. 2 days before the motion or application was heard. Motions or Applications must now be confirmed prior to 2:00 p.m. 3 days before the return date.
The manner of calculating time in the Rules has also changed. Previously Rule 3.01 provided that any period of days in the Rules of 6 days or less did not include holidays or weekends. The new Rules provide that any period of days in the rules of 7 days or less does not include holidays or weekends2. If there is a reference to time of more than 7 days in the new Rules weekends and holidays are included. The effect of these two changes means that if you have a motion returnable on Tuesday February 23, 2010 all of the moving party’s motion materials must be served and filed with the Court by Friday February 12, 2010. The responding party’s materials must be served and filed with the Court by Wednesday February 17, 2010 and the motion must be confirmed prior to 2:00 p.m. on Thursday February 18, 2010.
Rule 53.03 has been amended to provide that if an expert is going to be called at trial by a party then the report from that expert shall set out the following:
The expert’s contact information;
The expert’s area of expertise and qualifications;
The instructions provided by counsel to the expert;
The nature of opinion sought and how it relates to each issue in the proceeding;
The expert’s opinion respecting each issue; and,
The reasons for the opinion including the factual assumptions, research by the expert that lead to the opinion and a list of every document relied upon by the expert.
Expert reports must now be served at least 90 days before the Pre-Trial Conference. Previously expert reports needed to be served at least 90 days before trial.
Responding expert reports must now be served at least 60 days before the Pre-Trial Conference.
Supplementary reports can still be served at least 30 days before trial.
The parties are now also required, within 60 days of an action being set down for trial, to agree on a schedule for service of expert reports. In practice, it is likely that most counsel will agree simply to be governed by the timelines set out in the Rules for delivery of expert reports.
DUTY OF EXPERTS
Rule 4.1.01 has been added to the Rules of Civil Procedure. This Rule provides that it is the duty of every expert to provide opinion evidence that is fair, objective and nonpartisan. Opinion evidence that is within the expert’s area of expertise may be provided and such additional assistance as the Court may require. The experts who are providing reports must now sign a Form 53. This Form must be attached to any report. A Form 53 is an acknowledgement of the experts’ duty. A precedent copy of this form is attached as Appendix “A” to this paper. The form sets out that the duty of the expert to the Court prevails over any obligation owed by the expert to the party by whom he or she was engaged.
Previously a Pre-Trial Conference was held at the discretion of the parties and/or the Court. Now Pre-Trial Conferences are mandatory. Rule 50.02 has been amended to provide that within 180 days of an action being set down for trial the parties must agree to a Pre-Trial Conference date failing which the Registrar will schedule one and give notice to the parties.
Previously parties were not required to attend at Pre-Trial Conference. However the new Rule 50.05 provides that lawyers and the parties must attend a Pre-Trial Conference personally unless undue expense or travel time would prevent personal attendance by the parties. In that situation, a party whose approval for settlement is required must arrange to be available by telephone throughout the Pre-Trial Conference.
Previously the information contained within the Pre-Trial Conference Brief was dealt with by practice direction in each particular region. Now Rule 50.04 provides that a Pre-Trial Conference Brief must be filed 5 days before the conference which is to contain concise statements, without argument, regarding:
The nature of the proceeding;
Issues and positions of the parties ;
Names of witnesses to be called at trial;
Expected length of time to give evidence; and,
Steps to be completed before the action is ready for trial and expected length of time required.
If the action is not settled at Pre-Trial Conference Rule 50.07 sets out that the Pre-Trial Judge shall complete a Pre-Trial Conference Report which sets out what steps are needed to be completed before the action is ready for trial and the expected time to complete those steps and the anticipated length of trial.
Each lawyer shall certify on the Pre-Trial Conference Report that he or she understands the contents of the report and acknowledges the obligation to be ready to proceed to trial on the date fixed.
ACTION NOT ON TRIAL LIST
Previously in matters which were brought under the ordinary procedure the matter would not be dismissed without a Status Hearing having taken place. Under the new Rules 48.15 and action will be dismissed if more than 180 days has passed since the Statement of Claim was issued and if no Notice of Intent to Defend or Statement of Defence has been filed3 and the matter has not been set down for trial.
Plaintiffs’ counsel will have to be particularly diligent to ensure that this Rule is followed. A party still has 6 months from the issuing of the claim to serve it. However, under the new Rule if the party waits 6 months to serve its claim its action may well be dismissed as abandoned. If there is no Notice of Intent to Defend or Statement of Defence filed and the 180 day deadline approaches a Plaintiff’s remedy will be to note the Defendant who has been served but not responded in default and to request a trial of the damages aspect of the lawsuit.
There is a transition Rule in place which applies to the above. If the action was commenced prior to January 1, 2010 then this section applies as if the action was commenced on the date that the next step in the lawsuit is taken. If no step is taken before January 1, 2012 then the action is deemed to be dismissed as abandoned on January 1, 2012.
Previously if an action was not placed on a trial list within 2 years of the Statement of Defence being filed the action will be dismissed in 90 days unless it is set down for trial or a timetable is filed with the Court. Under the old Rules parties had to attend at a Status Hearing to arrange for a timetable for the steps that needed to be taken in order to place the lawsuit on a trial list. Under the new Rule 48.14(1) a timetable may be agreed to by all parties on consent and filed with the Court without attendance at a Status Hearing being necessary. The timetable must include:
Steps to be completed before the action is to be set down;
Dates by which those steps will be completed ;
A date within 1 year before which the action will be set down; and
A draft Order establishing the timetable.
Rule 48.14(10) sets out that the Status Hearing shall be in writing if the timetable is filed with the Court 7 days in advance of the scheduled Status Hearing.
CHANGES TO THE RULES OF DISCOVERY
Previously a party could examine an adverse party for discovery for as long as they could come up with relevant questions. Under the new Rule 31.05.1 no party shall conduct an oral examination for discovery which exceeds a total of 7 hours of examination regardless of the number of parties or other persons examined except with the consent of the parties or leave of the Court. If a party requires more than 7 hours of examination for discovery the remedy is to get the opposing party to consent to a longer examination for discovery or to bring a motion to the Court for an Order extending the amount of time for examination for discovery. If a motion is brought for leave, the Court will consider the factors such as the money at issue, the complexity of fact and law in the case, the financial position of the parties, the conduct of the parties, and proportionality.
The old test for production of documents as an undertaking was that a document had to bear a semblance of relevance to any matter at issue in the action. The new test is whether a document is relevant to any matter in issue in the action. This new test is intended to be narrower and to prevent fishing expeditions in which documents of marginal relevance are produced as part of the lawsuit discovery process.
The new Rule 29.1 sets out that the parties must agree to a discovery plan at the earlier of 60 days after the close of pleadings or before attempting to obtain evidence as part of the lawsuit. The discovery plan must set out in writing:
The scope of the matters in issue;
The dates for serving Affidavit of Documents ;
The timing, costs and manner of productions;
The dates for examination for discovery;
Which persons are going to be examined; and
The timing and length of discovery.
The parties have a duty to update this Discovery Plan as the matter proceeds and if they fail to do so it may be taken into consideration by the Court during any subsequent discovery related motion. A failure to update the plan may have an impact on a party’s abilities to claim costs of any discovery related motion.
The new Rule 29.2 sets out that every issue in discovery must pass a proportionality test. The Court must now consider time, expense, prejudice, undue interference with progress of the action and excessive volumes of requests when taking into consideration a motion brought under Rules 30, 31, 34, 35.
SIMPLIFIED PROCEDURE AND SMALL CLAIMS
The Small Claims Court jurisdiction has been increased from a maximum limit of $10,000 to a maximum amount of $25,000.
The Rule 76 simplified procedure jurisdiction has been raised from $50,000 to $100,000. Before January 1, 2010 in simplified procedure no examination for discovery was possible. Now each party has 2 hours of oral discovery as part of a simplified procedure action. Previously Rule 76 had its own summary judgment rule, now summary judgment motions will be brought under the new Rule 20.04.
Rule 1.04 has been amended to set out that proportionality will be incorporated into every test and decision that the Court makes.
Rule 1.08(3) has provided that the Court can order on its own telephone and video conferences. Previously the parties had to make a motion to the Court before a video or telephone conference could be convened.
Rule 6.1 provides that with the consent of the parties the Court may bifurcate the action and order separate hearings on one or more issues including on liability and on damages.
Rule 13.1.02 had been amended so that a motion to change venue may be brought and heard in the County to which the transfer is sought. Previously these motions had to be brought in the County in which the action was commenced4.
Rule 20 has been amended to make a motion for Summary Judgment somewhat easier to obtain. Previously a party had to convince a Court that there was no genuine issue for trial with respect to a claim or defence. Now the new test is no genuine issue requiring a trial. This wording has not yet been interpreted by the Courts.
Previously a Judge hearing a motion could not weigh evidence, evaluate credibility or draw inferences from evidence. The new Rule 20.04(2.1) allows the Court to do that on a summary judgment motion.
A Judge hearing a summary judgment motion may now order that oral evidence be presented by one or more parties with or without time limits. Previously only affidavit evidence was permitted on a summary judgment motion. Under the new Rule 20.05 when the summary judgment is refused the Judge hearing the motion may provide a direction and terms including imposing a timetable on parties for the steps remaining in the action.
At trial any facts specified by the Judge who heard the refused summary judgment motion shall be deemed to be established unless the trial Judge orders otherwise to prevent injustice.
Previously a party who brought a summary judgment motion and lost was facing a near automatic substantial indemnity costs award. Under the new Rules the Motions Judge has the power to award substantial indemnity based costs if the party bringing the motion has acted unreasonably or in bad faith. There is no longer a presumption of a substantial indemnity costs against the moving party if the summary judgment motion fails.
Many of these rule changes are subject to interpretation by the Court. The full effect of the changes on personal injury litigation in Ontario will only become clear with the passage of time. Certainly the most pressing and important change for personal injury law clerks will be to ensure that all documents are filed on time for motions or applications and to ensure that actions are served and moved along promptly so that they are not subject to dismissal by the Registrar. It will also be important to ensure that discovery plans are filed and updated regularly and that all expert reports received comply with the new Rules.
Respondents outside Ontario must be served 20 days before the return date of the Application.
Holiday is defined in Rule 1.03 to include: any Saturday or Sunday, New Yearï¿½s Day, Family Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day and any special holiday proclaimed by the Governor General or Lieutenant Governor
or no motion has been brought to contest the jurisdiction of the Court to hear the action
Other miscellaneous changes are described in Appendix B. Appendix B is intended as a quick reference guide only and is not exhaustive.