In navigating a new civil litigation regime, lawyers in Ontario will have to change the way they prepare for court, says a Mississauga commercial litigator.
The new year brings with it major reforms to the province’s civil justice system, including an expansion of the mandate for simplified procedure and limitations on discovery.
“Hopefully, this will make lawyers turn their heads to these things before the 11th hour,” says Sophie Petrillo, a lawyer with Pallett Valo LLP.
“It forces lawyers to do their homework in advance. We’ve all sat in court while lawyers went through documents one by one. And clients can’t afford that.”
The long-awaited amendments, which also raise the monetary limit for Small Claims Court, follow a set of recommendations that former Ontario associate chief justice Coulter Osborne made to the province more than two years ago.
“The civil justice reforms will increase the overall effectiveness of the system so that Ontarians have the access to justice they need and deserve,” Attorney General Chris Bentley, who was not available to comment, said in a release. “These reforms will be good for our economy, businesses, and individuals.”
Until now, the process of discovery could be needlessly protracted, Petrillo says. “It can take weeks and weeks and weeks. A lot of time, it’s duplication.”
As of Jan. 1, however, oral examinations for discovery will be limited to seven hours per party.
In addition, a more stringent test of relevance will apply to discovery with a key change in phrasing from “relating to any matter in issue” to “relevant to any matter in issue.”
The principle of proportionality, which weighs the costs against the amount of the claim, must also now be considered on all motions related to discovery.
And all parties must agree to a discovery plan outlining examinations and documents within 60 days of the close of pleadings.
The changes will require lawyers to examine their cases earlier rather than on the eve of trial, ultimately saving clients money on legal fees, Petrillo says.
“Discovery is expensive. It’s one of the biggest ones.”
A second major area targeted by the province is the application of simplified procedure, which eliminates certain legal steps to usher smaller claims through the system more quickly and cheaply.
The limit for simplified procedure matters has now increased from $50,000 to $100,000.
However, as claims approach six figures, simplified procedure matters may warrant oral examinations for discovery, Petrillo says.
As such, the civil rules will now allow for a period of discovery of two hours per party.
In addition, summary judgments will now be available in simplified procedure matters, giving judges greater authority to dispose of unmeritorious cases.
In all civil matters, the summary judgment test can now be applied more widely.
“A judge may now weigh evidence, evaluate credibility, and draw inferences from the evidence and can order oral evidence [mini-trial] with or without time limits,” a provincial document said.
As well, when a trial is necessary, the court will now be able to impose deadlines and limitations.
Some of the biggest changes, however, will be seen in Small Claims Court.
The province is increasing the monetary jurisdiction for Small Claims Court from $10,000 to $25,000, in accordance with other provinces and with Osborne’s recommendations.
However, some lawyers are concerned the province is allocating no new funding to support an increased caseload.
“There’s going to be a ridiculous increase in the amount of files they’re going to be handling,” Petrillo says, adding that the looming changes pose a “potential disaster.”
As a principle, Petrillo welcomes a greater role for small claims courts.
Until now, parties with potential claims in the $10,000 to $25,000 range faced deterrents to pursuing lawsuits due to the prohibitive legal costs relative to the amount in dispute.
Claims of that magnitude often make little sense to lawyers, she adds.
“I think a lot of lawyers are unable to help clients with small files,” Petrillo says, adding that even with simplified procedure rules, smaller claims were untenable.
“You still have to go through all the necessary steps.”
When approached by clients with such claims, she advised them to wait until this month when they could pursue the matter in Small Claims Court as long as there was no limitation deadline to consider.
She suspects many other lawyers gave similar advice, raising the prospect of a sudden surge in matters filed in Small Claims Court.
The court’s heightened jurisdiction will prompt many others to opt for litigation, including credit managers who may now decide to pursue unpaid accounts in court rather than write off the loss, Petrillo says. “It is going to be big.”
But without new judges, court staff or facilities, small claims courts may be swamped by the surge, she notes.
“What’s the point of making Small Claims Court more accessible to people if they have to wait three years to get before a judge?”
In that time, she says a defendant could disappear or dissipate assets.
Such a significant change in jurisdiction requires investment, she argues. “Otherwise, people will be languishing in the court system.”
In an e-mailed response from the Ministry of the Attorney General, a spokesperson said the reforms should not generate any new costs.
“Other provinces that have increased the Small Claims Court limit have done so with little cost,” the ministry said.