Rule 76 of the Rules of Civil Procedure was introduced to impose a mandatory simplified process for actions of comparatively modest monetary value, which exceed the jurisdiction of Small Claims Court. Initially, the monetary limit was $25,000. As the monetary jurisdiction of the Small Claims Court increased over time to $10,000 and then to $25,000, the monetary limits of the simplified procedure were similarly increased to $50,000 and then to the current limit of $100,000.
Since the Supreme Court of Canada’s ruling in R. v. Jordan, the Superior Court has struggled to abide by mandated timelines so that those accused of criminal offences would not have their cases stayed as a result of unacceptable delay. By the estimates of many, our current Superior Court Civil Jury lists are comprised mostly of soft tissue/chronic pain and similar motor vehicle accident injury claims. While in theory, such claims would be ideally suited to a simplified process, the Rules of Civil Procedure set out in Rule 76, in practice, have not been utilized. The reasons are multiple.
The most significant factors include the ability of either party to file a Jury Notice, the unrestricted length of the trial presentation, including numbers of experts, and costs. Once a jury is involved, even a relatively straightforward motor vehicle injury case needs three to four weeks to complete. Affidavit evidence is not utilized to replace evidence in chief and experts’ reports are not filed. Make the simplified rules meaningful. If we want to decrease the backlog in our courts, free up scarce and valuable judicial and court resources, and, at the same time, actually enhance the public’s access to justice. Giving real meaning to the simplified procedure can accomplish all three.
First, get rid of juries. Citizens of our province are being taken advantage of when they are asked to perform their important and sacred roles as jurors by being asked to adjudicate over a modest soft tissue injury claim, as opposed to a trial for a murder, or, say, a paraplegic injury. Is it any wonder that jurors angered by this abuse take it out on all trial participants to the greater prejudice of plaintiffs? To affect this change, s. 108 of the Courts of Justice Act should be amended to exclude Rule 76 actions from being tried by a jury, as is currently the case with Small Claims Court actions.
Jury trials have become overly complex and lengthy, in part because of the legislative requirements in motor vehicle accident cases to establish threshold injuries. Nevertheless, with a concerted effort and equal rules applying to both sides, fairness can be achieved without all of the current and elaborate forensic mechanisms of the current trial process. One week should be enough to try any case where the monetary value has a set limit. That limit should increase to at least $200,000 and be indexed, given that the current deductible applied to motor vehicle accident claims is approaching $40,000 and is indexed.
Evidence in chief should be filed by affidavit with witnesses presented for cross-examination and re-examination. It is suggested that each party be at liberty to use their share of the allotted time in any manner they see fit and that limits on examination or cross-examination of any one witness is inappropriate. If a party wishes to use half its time cross-examining one witness, so be it.
The number of expert witnesses for each side would be restricted to three, barring truly exceptional circumstances. Costs would be restricted to a maximum of $50,000 and disbursements to $25,000. Cost sanctions will continue to apply, such that any judgment awarded within the simplified procedure limits, where the process has not been used, will result in the plaintiff not recovering costs, unless the court finds it was reasonable for the plaintiff to have commenced or continued the action under the ordinary procedure.
Great effort has been made by certain members of the judiciary, Rules Committee, Bench and Bar Committees and organizations such as the Ontario Trial Lawyers Association to make these proposed changes a reality. In a rare and encouraging effort of co-operation, both the plaintiff’s bar, the defence bar and the insurance industry have given some form of support to these changes in our system. It is now up to the provincial Ministry of the Attorney General and our new provincial government to consider these proposals that are being put before it. Early indications suggest that these proposals are being received in a favourable manner. Should our new government proceed with these new changes, it will be a victory for all stakeholders.
Given our massive provincial deficit and the strains on our judicial and court resources brought about by the Jordan decision and our growing population, it is unreasonable to expect that more dollars and more resources will be allocated as the sole solution to our current access-to-justice challenges. As the Supreme Court of Canada declared in the Hryniak decision, we can no longer expect the full forensic mechanisms of a trial to adjudicate every civil dispute. It would be unreasonable to expect all of the processes, procedures and safeguards for all cases, even those of comparatively modest value. If enacted, these proposed changes will bring about real and lasting benefit by helping to address delays and enhancing access to justice for many. It will provide fair and timely adjudication, the costs of which are proportionate to the matters at issue. Bring them on.
Ronald Bohm is senior litigation counsel at SBMB Law and a dual certified specialist in civil litigation and health law. He is also president of the Ontario Trial Lawyers Association.