RULES OF CIVIL PROCEDURE AMENDMENTS BULLETIN

Transcription

1 RULES OF CIVIL PROCEDURE AMENDMENTS BULLETIN July 2009 SUMMARY [The information below is provided as a service by Shillingtons LLP and is not intended to be legal advice. Those seeking additional information on the issues above or any other matter should contact a member of the firm at (519) ] Effective January 1, 2010, with no transition period, the most significant changes ever made to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (Rules), will be in full force and effect. These changes will have a dramatic impact on the way that litigation is conducted in the province of Ontario. Some of the most significant changes are discussed within this bulletin. The key mantra with respect to these changes, as outlined by those responsible for making them, is proportionality. The thought behind the changes was to make the legal system more accessible and affordable, and to ensure that legal fees and time expended on a particular case were proportionate to the complexity, value and time invested in the particular matter. Some of the most significant changes to certain Rules are discussed below. It should be stressed that this is by no means an exhaustive list, and an in-depth review of the Rules in their entirety is highly recommended. RULE 3.04: TIMETABLES This is a new rule which allows parties, by written agreement, to amend a timetable established or amended by a judge or case management master, unless the order prohibits the amendment. However, this agreement shall not amend the date of setting down for trial or restoring an action to a trial list. Failure to comply with a timetable can lead to a stay, dismissal, striking of defence or any other order. A request for sanctions can be brought on a motion.

2 2 RULE 4.1: DUTY OF EXPERT Rule 4.1 is a new rule with an associated Form 53, which requires any expert witness to acknowledge their duty as outlined in Rule 4.1 to provide an opinion that is fair, objective and non-partisan, to provide opinion evidence related only to matters within the expert s area of expertise, and to provide the court with additional assistance that the court may reasonably require to determine the matter in issue. This obligation owed by the expert is above their obligation to any party by which that expert was retained. Form 53 must be attached to any report signed by the expert. It outlines that the expert has reviewed and acknowledged these obligations under Rule 4.1. This change is as a result of concern over the expert bias and the use of hired guns. The provision requires the lawyer to specifically review the role of an expert witness with that witness and confirm that the expert witness understands their role. The language incorporated was taken from similar rules in the United Kingdom and Australia. RULE 20: SUMMARY DISPOSITION When reviewing the Rules with respect to summary judgement, it was determined that the Rule 20 was not working, was not significantly flexible, and had a significant cost deterrent as a result of the substantial indemnity costs presumption against the party bringing the motion. Changes include a slight rewording of the test from no genuine issue for trial to no genuine issue requiring a trial. The judges are now permitted to consider evidence submitted by the parties and weigh the evidence, evaluate the credibility of deponents and draw any reasonable inferences from the evidence. The judge also has the power to conduct a mini trial for the purposes of exercising any of the aforementioned powers and request oral evidence with or without time limits. The trial can be ordered to proceed expeditiously. The cost deterrent has been removed, and replaced with discretion for the court to award substantial indemnity costs against either party if the party acted unreasonably by making or responding to the motion, or if the party acted in bad faith for purpose of delay. RULE 24.1: MANDATORY MEDIATION This rule applies to actions governed by this rule before January 1, 2010, or commenced after January 1, 2010 in Ottawa, Toronto and Essex County. A list of exceptions is included. One change is that mediation shall take place within 180 days after the first defence is filed, as compared with previous 90 day timeframe. Mediation may be postponed to a later date on consent if the consent it filed. Before setting the matter down for trial, a party must file the mediation report. The mediation coordinator can assign a mediator if certain conditions are not met and a mediation session shall be within 90 days of assignment of

3 3 mediator unless the court orders otherwise. The insured person is not required to attend, but a representative of the insurer is required to attend. RULES : DISCOVERY The changes to discovery procedure are perhaps the most extensive of all the changes to the Rules. Rule 29.1 is an entirely new rule which makes discovery plans mandatory for all forms of discovery. The discovery plan is a form that is to be agreed between counsel, in writing, filed 60 days following the close of pleadings, before obtaining any evidence on discovery. Specific details must be incorporated, and consequences can follow if the discovery plan is not followed. The specific contents of the discovery plan are as follows: The intended scope of documentary discovery under Rule 30.02, taking into account relevance, costs, and the importance and complexity of the issues in the particular case. Dates for service of each party s affidavit of documents. Information respecting the timing, costs and manner of the production and documents by the parties and any other person. The names of persons intended to be produced for oral examination for discovery under Rule 31, and information respecting the timing and length of the examination. Any other information intended to result in the expeditious and cost effective completion of the discovery process in the manner that is proportionate to the importance and complexity of the action. There is a positive duty to update the discovery plan. There are potential consequences for failing to agree on a discovery plan. The Rules with respect to the discovery plan are expected to require more coordination and collaboration between counsel, as well as forcing counsel to review and know their case prior to examinations for discovery. The second major change is to the scope of discovery. Although courts had generally interpreted the scope of discovery as being broader than relevance at trial, and used a semblance of relevancy test, the new rules replace the phrase relating to any matter in issue with the phrase relevant to any matter in issue, seemingly defining the scope of discovery as relevant. Rule outlines the decision making process with respect to whether a party or person must answer a question or produce a document, which includes the time required for a

4 4 party to answer or to produce the document, expenses associated, undue prejudice, undue interference with the orderly progress of an action, information or documents readily available to the party requesting it and excessive volume of documents. Fishing expeditions are going to be eliminated, and the proportionality concept, prevalent throughout the Rules, will be important. Finally, time limits for examinations for discovery have been added. Oral discovery must not exceed a total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with the consent of the parties or with leave or the court. Specific guidelines are included for the court to consider when deciding whether to grant leave to extend time for discovery, mainly: the amount of money at issue, the complexity of the issue as a factor of law, the amount of time that ought reasonably to be required in the action for all examinations, the financial position of each party, the conduct of any party, a party s denial or refusal to admit anything that should be have been admitted, and anything in the interest of justice. One option may be to serve a request to admit prior to examinations for discovery in an effort to narrow what is truly in dispute, so that discovery can be planned accordingly. RULE 50: PRE-TRIAL CONFERENCE The entire rule has been revoked and replaced, although many of the subsections do remain the same. The overall thought prior to changes was to make pre-trials more meaningful, as concern regarding the merit of pre-trials had been an ongoing issue. Material must now be filed at least five days prior to the pre-trial. Counsel must request that the presiding Justice accept any late documentation. Rule notes that unless a judge orders otherwise, parties shall participate by personal attendance or teleconference/video conference if undue travel or time or expense is required. The decision maker with authority to settle must be available to contact during the pre-trial conference. This is expected to be a significant change, as personal attendance is expected to allow the judge to communicate more personally with the parties, allow the parties to see the procedure firsthand, and perhaps facilitate settlement. With respect to fixed trial dates, the presiding judge must complete a pre-trial report, which includes the steps needed to be completed before the action is ready for trial and the time required to complete it. This report is placed with the trial record. With written consent of the parties, a judge who conducts a pre-trial conference can also try the action. Judges can also make an orders for costs at a pre-trial. Failure to comply with the Rules may prompt a cost order.

5 5 RULE 53.03: EVIDENCE AT TRIAL - EXPERT WITNESSES Significant changes have been made to the deadline for filing expert reports. Expert reports must now be filed not less than 90 days before the pre-trial, as opposed to 90 days before trial. A responding report must similarly be served 60 days before the pre-trial, as opposed to the previous 60 days before the trial. Furthermore, within 60 days following an action being set down for trial, parties must agree to a schedule setting out dates for the service of expert reports, unless the court orders otherwise. These changes were incorporated to avoid trial adjournments related to late service of expert reports and to promote more meaningful pre-trial conferences and early settlement. This may result in pre-trial dates being set closer to the date for trial. Interestingly, the rules for supplementary expert reports are unchanged, and must be served on every other party not less than 30 days prior to commencement of trial. Despite the above, Rule 53.08(1), which requires that the court shall grant leave to permit late delivery of reports, was not changed, and thus it is possible that courts will still continue to accept late service of expert reports as before. A further change has been made to what an expert report is required to include. According to Rule 53.03(2.1), an expert report shall contain the following information: The expert s name, address and area of expertise. The expert s qualifications in employment and educational experience in his or her area of expertise. The instructions provided to the expert in relation to the proceeding. The nature of the opinion being sought on each issue and the proceeding to which the opinion relates. The expert s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert s own opinion within that range. The expert s reason for his/her opinion including: Description of the factual assumptions on which the opinion is based; and A description of any research conducted by the expert that led him or her to form the opinion and a list of every document, if any relied on by the expert informing the opinion.

6 6 An acknowledgement of the expert s duty which is signed by the expert (the aforementioned Form 53). New changes highlighted included specific factual assumptions underlying the expert reports now being required to be specified and the importance of specifically understanding the case prior to requesting a formal expert opinion. RULE 76: SIMPLIFIED PROCEDURE The most significant change for this rule is the increase in the monetary limit from $50, to $100, It should also be noted that the Small Claims Court limit has been increased from $10, to $25, As the appeal route to the Court of Appeal remains at $50,000.00, and is as yet unchanged in accordance with the new Rules, it is possible that Simplified Procedure cases could be headed to the Court of Appeal, although this provision may be changed in the future. A new change incorporated examinations for discovery for Simplified Procedure cases. Examinations for discovery are limited to two hours, regardless of the number of parties. With respect to motions, the motion form must be served and submitted to the court before the motion is brought, as contrasted with the previous rule where the moving party must serve a motion form and submit it at court before the motion is heard. There is now no different procedure for summary judgement in Simplified Procedure. With respect to setting the action down for trial, the Plaintiff must set the action down for trial within 180 days after the first Statement of Defence or Notice of Intent to Defend is filed, as contrasted with the previous 90 day period. The former rule requiring the attendance of parties and/or those with authority to attend or be accessible for pre-trial is revoked; however, new changes to the pretrial regime as previously discussed would take precedence. With respect to a summary trial, ten minutes of chief, cross and re-examination on affidavits have all been incorporated. RULE 77: CIVIL CASE MANAGEMENT This applies to case managed actions and applications in Ottawa, Toronto and Essex County. A judge or case management master is given a wide variety of powers under Rule 77.04, but under Rule 77.05, a proceeding can be assigned for case management on consent, on the initiative of a regional senior judge, or at the request of a party on a motion. All steps can be heard and conducted by a particular judge and all motions would be made to the same judge.

7 7 CONCLUSION It is important to note that this is not the full list of all Rules changed, as many of the timelines and timeframes have also been slightly altered. As noted above, a full review of all changes to the Rules is highly recommended.