November 20, 2019
On October 23rd, 2019, the Ontario government announced new changes that will be made to Rule 76 (Simplified Procedure) under the Rules of Civil Procedure as well as changes to the monetary value of claims that can be brought in Small Claims Court. The purpose of these changes is to expedite court proceedings and to provide better access to justice.
Changes Made to Small Claims Court Procedures
Originally, a claimant could sue for money or return of personal property at the Small Claims Court as long as the claim was for $25,000 or less, not including interest and costs. As of January 1st, 2020, the monetary limit for bringing a claim will be raised to $35,000 or less, not including interest and costs. As such, claimants who had a claim for $35,000 and were otherwise required to proceed through Simplified Procedure can now proceed through Small Claims, greatly reducing their fees since costs at Small Claims are capped at 15%.
Claims that were filed under Simplified Procedure for $35,000 or less before January 1st, 2020 will not automatically transfer to Small Claims Court. Parties can either agree to opt in or they can bring a motion before the Courts.
Changes Made to Rule 76 – Simplified Procedure
There have been a number of changes that will be made to Rule 76 on January 1st, 2020. All these changes aim to accomplish the goals of expediting matters that would otherwise be held up due to a back log of cases and reducing costs of civil processes. The most significant changes are as follows.
Monetary Limit of Claims increased from $100,000 to $200,000
Previously, claims could only be brought under Simplified Procedure if they were seeking $100,000 or less. However, as of January 1st, 2020, the monetary limit increases to $200,000 or less.
Restrictions on Costs and Disbursements
Under the new rules, no party is allowed to recover more than $50,000 in costs, or recover more than $25,000 in disbursements, excluding HST in Simplified Procedure. However, this rule does not apply if the action was commenced before January 1st, 2020.
No Jury Trials
Jury trials will no longer be available under Simplified Procedure for claims of $200,000 or less, with a few notable exceptions. If the action involves a claim for relief arising from slander; libel; malicious arrest; malicious prosecution; or false imprisonment a jury trial will be allowed for claims less than $200,000. However, the claim will nevertheless be moved to ordinary procedure at the Superior Court of Justice. If the jury notice is struck, the proceeding will continue under Simplified Procedure.
New Time Limits for Pre-Trial and Trial Proceedings:
During examinations for discovery, parties conducting the examinations will be limited to three (3) hours of examinations as opposed to only two (2).
Instead of receiving notice forty-five (45) days prior to a date that the registrar had scheduled a pre-trial conference, parties will now be required to schedule a pre-trial conference within 180 days after an action is set down for trial.
Parties are also required to agree to a proposed trial management plan at least thirty (30) days prior to the pre-trial conference, which must include a list of every witness whose evidence will be adduced, and an outline of how much time each party will take to examine witnesses, and to present opening statements and oral argument.
Parties are required to file at least five (5) days prior to the pre-trial conference: the proposed trial management plan, a copy of the party’s affidavit of documents and copies of the documents relied on for the party’s claim or defence, a copy of any expert affidavit (which must now append the expert’s report for the purpose of introducing it as evidence).
The new rules also require that the following materials must be delivered at least five (5) days prior to the pre-trial conference: a statement, not exceeding three pages, setting out the issues and the party’s position with respect to them, and a trial management checklist.
Lastly, the entire trial cannot exceed five (5) days.
With respect to the pre-trial conference, the new rules require that the pre-trial conference judge or case management master shall: fix the number of witnesses (except expert witnesses) whose evidence each party may adduce at trial; fix dates for the delivery or any witness affidavits; fix a date for trial, and approve the parties’ proposed trial management plan.
Removal of Summary Trials as a Mode of Trial
Summary trials are no longer a mode of trial available under Simplified Procedure. Prior to the new changes to Rule 76, trials could proceed as either a summary trial or an ordinary trial. Summary trials had time limits on the proceedings (such as how long the plaintiff was allowed to examine the deponent of any affidavit served by the plaintiff), and as such were a faster and more expedient way to resolve the matter.
Trials Cannot be Longer than Five Days
Trials cannot exceed five (5) days and will contain the following procedure: opening statement, adducing evidence (by affidavit), cross-examination by adverse party, re-examination by party who adduced the evidence, adducing reply evidence, and oral argument.
Consequences of the Amendments to Rule 76 and Small Claims Court Monetary Limit
Parties intending to proceed under Simplified Procedure after January 1st, 2020 should keep a few things in mind: the restriction of trials to a maximum of five (5) days, the restriction on recovery of costs and disbursements, the elimination of summary trials, and the removal of jury trials.
If a party is intending to adduce extensive evidence, including calling numerous expert witnesses, who must now adduce their evidence via affidavits, and is likely going to incur significant legal fees, it may be beneficial for that party to proceed under the ordinary procedure rather than pursue a claim under Simplified Procedure. Similarly, a party who knows that the claim is complicated and the proceedings will require more than five (5) trial dates, should reconsider pursuing a claim under Simplified Procedure.
Finally, it should be noted that if a party has a claim that would entitle them to an award greater than $35,000, they can still bring the claim at Small Claims Court, as long as they decrease the award they are seeking to $35,000 or less.
Authored by Tanya Sambi Articling Student