New civil rules unveiled

The province has unveiled a sweeping set of new civil court rules that could significantly alter the landscape for Ontario lawyers.

The centrepiece of the new rules is a hike in the monetary limit for cases handled in Small Claims Court to $25,000 from $10,000. All of the 25 new civil rules, announced last week by Attorney General Chris Bentley in a press conference at the Law Society of Upper Canada, come into effect Jan. 1, 2010.

“More time for the cases that need it, less time for the cases that don’t - that’s the whole point of the initiative,” said Bentley at the press conference, which was attended by key players in the justice system.

“We want a system of justice that works for all the people and the businesses of the province of Ontario,” said Bentley. “We want a system of justice that moves at the speed of commerce.

We want a system of justice to which everybody has access, regardless of who you are, what your connections are, and how much money you’ve got in your pocket, and that’s what today is all about.”

Former associate chief justice Coulter Osborne was one of the prominent figures at the announcement. The AG’s moves are largely in response to Osborne’s November 2007 Civil Justice Reform Project report, along with province-wide consultations.

Osborne’s summary of findings included 81 recommendations for change in 18 areas, from appeals to technology. “By acting on my recommendations, the attorney general is reducing cost and delay for individuals and businesses who use our civil courts,” remarked Osborne.

“The reforms reflect the need for proportionality in our civil justice, which means that straightforward, lower-value cases should not take as long or cost as much as large, complex cases.”

Other key changes announced last week by Bentley include an increase in the monetary limit for simplified procedure to $100,000 from $50,000, a one-day limit on most pretrial examinations for discovery, mandatory advance timelines for information sharing between parties, and the application of a “proportionality” principle that requires the time and money dedicated to a case be in line with what’s at stake.

Lee Akazaki, chairman of the Ontario Bar Association’s civil justice section, tells Law Times that the association is “very encouraged” by the new rules, which he said largely reflect OBA recommendations.

But while Bentley emphasized during his announcement that more resources for the justice system doesn’t always mean a better system, Akazaki says, “More is quite often better in terms of providing the human resources to support all of the great work that is being proposed.”

Specifically, Akazaki suggested the AG must better utilize technology to improve the system.
“You can order a pizza online in Ontario, you can order opera tickets online, but if a lawyer wants to find out when and where a hearing is going to take place, you have to either phone in, leave a message, and then get somebody from the court to return your call,” he said.

“Hopefully we’re moving towards a system where . . . there’s an improvement in the technological interface between the practising bar and the judiciary.”

The monetary increase to Small Claims Court matters was last adjusted in 2001, with an increase to $10,000 from $6,000.

The new simplified procedure guidelines include a new provision giving parties two hours of pretrial oral discovery, according to a ministry press release. The ministry said that measure will prompt quicker settlement talks.

Changes to summary judgement rules include a measure giving judges the discretion to determine if a motion was wrongly introduced and impose costs only where necessary. Previously, the party that introduced and was denied a summary judgement motion was required to pay the opposing side’s costs for dealing with the motion, a rule the ministry said discouraged attempts for summary judgement.

The changes to discovery rules include a requirement for parties to come to terms on a discovery plan that “sets out the scope, how documents will be produced, and when pretrial examination for discoveries will take place,” said the ministry. That rule aims to cut down on problems by pushing parties to come to terms early in a matter so issues are handled promptly and proportionately, said the ministry.

Parties also will face a cap of seven hours of pretrial examination for discovery. However, the court can order otherwise on individual cases, and that limit can be expanded with the opposing side’s consent.
Expert witnesses will have to provide a written acknowledgement that they must offer the court “fair, objective, and non-partisan” opinions, said the ministry.

The new regulations also will see the elimination of case management, with the exception of matters in Toronto, Ottawa, and Windsor. “Parties now have greater responsibility for managing actions and moving them quickly to trial or other resolution,” said the ministry.

Timelines for mandatory med-iation sessions, which will still apply only in Toronto, Ottawa, and Windsor, will be extended; a measure the ministry said will facilitate more time for “productive and meaningful mediation.”

The ministry hopes to encourage settlement and the narrowing of trial issues by mandating pretrial conferences. The new rules also will force parties to file a detailed conference brief, parties and their lawyers must appear at conferences, and courts will be empowered to order a timetable for moving forward when matters aren’t settled at the conference, said the ministry.

Finally, deadlines for serving and filing motion and application materials will be moved up to give both sides more time to get ready, said the ministry. That new rule also aims to aid trial scheduling.

Bentley said the ministry will wait until 2010 to put the rules into effect in order to prepare for issues that may arise - such as a need for  more court resources - when they come into force, and to give the courts and lawyers time to prepare.

Comments released by the ministry from key members of the justice community indicate widespread support for the new civil rules.

“We have a standing obligation to ensure that the legal system, as a cornerstone of democracy, remains strong, vibrant, accessible, and relevant,” said Chief Justice of Ontario Warren Winkler. “Implementing the recommendations of the Osborne report is a step in the right direction.”

County and District Law Presidents’ Association chairman Randall Bocock said, “The attorney general was able to build consensus among our organization and other groups on these important reforms.”

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