When commencing a lawsuit in Ontario, litigation fees may appear intimidating to the party initiating the claim. Rule 76 of the Rules of Civil Procedure outlines the Simplified Procedure process that makes litigation more cost-effective by restricting or eliminating specific civil procedures.[1]
If your claim is for $200,000 or less then the Rules mandate that you follow Simplified Procedure unless you fall in one of the following categories:
- the action is under the Class Proceedings Act, 1992;
- the action is under the Construction Act, except trust claims;
- the action is assigned for case management under Rule 77.05; or
- the action for which a jury notice is delivered in accordance with subrule 76.02.1(2).[2]
If your claim is not significantly quantified at an amount greater than $200,000, it may be prudent to assess whether it would be more cost-effective to bring your lawsuit within the Simplified Procedure jurisdiction. In order to do so, you will have to limit your claim to $200,000. Although abandoning a portion of your claim may feel counter-intuitive, you may benefit from the restricted and eliminated procedures required by Rule 76.
When commencing an action pursuant to Rule 76, the statement of claim or notice of action must indicate that the action is being brought under Rule 76.[3]
Similar to the ordinary rules, you have to submit an affidavit of documents at the close of pleadings.[4] However, Simplified Procedure requires the additional requirement of having to list of names and addresses of persons who might reasonably be expected to have knowledge of the matters at issue.[5] If you do not provide this information in your affidavit of documents, then you may not call that person as a witness at trial unless the court orders otherwise.[6]
Unlike under the ordinary Rules of Civil Procedure, written examination for discovery is prohibited in Simplified Procedure.[7] Examinations for discovery must take place orally. However, each party is only entitled to conduct up to a total of three hours of examination, regardless of the number of parties or other persons to be examined.[8] It is important to note that Rule 76 does not enable a party to consent to or request a longer examination for discovery.
Although Rule 76 does not address mediations, the ordinary rules mandate mediation for most civil actions in Toronto, Windsor, and Ottawa.[9] Unless Rule 76 explicitly forbids a rule, the ordinary rules will apply. Therefore, most civil Simplified Procedure claims in Toronto, Windsor, and Ottawa require the parties to attend a mediation.
In order to set a matter down for trial, a party must serve a notice of readiness for a pre-trial conference.[10] As part of the notice of readiness, the party that sets the action down for trial must certify that the parties did have a settlement discussion among the parties.[11] After the filing of a notice of readiness, a pre-trial will be scheduled for the parties.
At least 30 days before the scheduled pre-trial conference, the parties must agree to a proposed trial management plan that contains the following:
- a list of every witness; and
- a division of the allotted time for the following
- each party’s opening statement
- presentation of evidence in chief by affidavit
- cross-examination of deponent
- re-examination of any deponents who are cross-examined; and
- oral argument.[12]
At the pre-trial conference, the judge or case management master will do the following:
- fix the number of witnesses, or other expert witnesses, whose evidence each party may call at trial;
- fix dates for the delivery of any witness affidavits;
- fix a date for trial;
- review and approve the parties’ proposed trial management plan; and
- make any other order as the judge considers appropriate.[13]
Following the pre-trial conference, the registrar will place the action on the appropriate trial list.[14] When an action is placed on the trial list, the parties are deemed ready for trial.[15]
While trials under the ordinary rules can last weeks, the time allocation for a Simplified Procedure trial is limited to a total of five days.[16] This limitation creates a more cost-effective approach to litigation.
Notably, under the ordinary rules, trials can either be tried by jury or judge alone, whereas Simplified Procedure trials where no jury notice was delivered before January 1, 2020, must be tried by judge alone. [17] This limitation may potentially expedite the litigation process as the presiding judge is likely to already be knowledgeable of the applicable law. However, this restriction may also create a lack of public involvement and oversight.
At trial, the examination in chief of all the parties will be adduced by way of affidavit evidence and by reading in any part of the adverse party’s discovery.[18] In lieu of live oral testimony, an affidavit is submitted on behalf of each witness which would consist of the corresponding witness’s written sworn evidence. Each party who is adverse in interest may then cross-examine the deponent of any affidavit.[19] By replacing the examination in chief with affidavits, the court time required for trials is reduced. Similar to ordinary rules, a party may then re-examine a deponent that was cross-examined on their affidavit.[20]
The act of reading in part of the adverse party’s discovery refers to the practice of reading in the relevant questions and answers from the party’s discovery verbatim in order for said information to form part of the trial record. The questions and answers from the adverse party’s discovery do not need to be put to the corresponding witness at trial as the deponent’s answers were given under oath during their examinations for discovery.
At the conclusion of the trial, the presiding judge will grant judgement.[21] Although you may be eager to receive judgement, this timeframe may affect the judge’s ability to digest all the information from the trial.
Under ordinary rules, there is no pre-determined limit on the recovery of costs and disbursements. However, there are several factors that may impact the amount that a party may be able to recover such as Rule 49 offers.[22] Other considerations may include inter alia, the principle of indemnity, the amount claimed and the amount recovered, the apportionment of liability and the complexity of the proceeding.[23]
Unlike ordinary rules, in Simplified Procedure, no party may recover costs exceeding $50,000 or disbursements exceeding $25,000.[24] This restriction should be considered when determining whether you should retain an expert and/or abandon a portion of your claim to bring it within the Simplified Procedure jurisdiction.
The application of Rule 76 is designed to make litigation more cost-effective. If you have a case valued at or near $200,000, as a litigant it makes sense to proceed with a trial under the Simplified Rules as you have the advantage of having early disclosure of witnesses, shorter examinations for discovery, time limited trials, trials by judge alone, trials without examinations in chief, and limitations on costs awarded.
[1] Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] Ibid at Rule 76.02(1).
[3] Ibid at Rule 76.02(4).
[4] Ibid at Rule 76.03(1).
[5] Ibid at Rule 76.03(2).
[6] Ibid at Rule 76.03(3).
[7] Ibid at Rule 76.04(1).
[8] Ibid at Rule 76.04(2).
[9] Ibid at Rule 24.1.04(1).
[10] Ibid at Rule 76.09(1).
[11] Ibid at Rule 76.09(2).
[12] Ibid at Rule 76.10(2).
[13] Ibid at Rule 76.10 (5).
[14] Ibid at Rule 48.05(1).
[15] Ibid at Rule 48.07.
[16] Ibid at Rule 76.10(5).
[17] Ibid at Rule 76.14.
[18] Ibid at Rule 76.12(1).
[19] Ibid.
[20] Ibid at Rule 76.12(1).
[21] Ibid at Rule 76.12(4).
[22] Ibid at Rule 49.10.
[23] Ibid at Rule 57.01(1).
[24] Ibid at Rule 76.12.1.