Better simplified procedure needed in civil courts

Parties’ right to a jury trial is standing in the way of an effective simplified procedure in civil courts, according to the president of the Ontario Trial Lawyers Association.

Better simplified procedure needed in civil courts
Ron Bohm says ‘jurors need evidence presented orally, talked through and explained.’

Parties’ right to a jury trial is standing in the way of an effective simplified procedure in civil courts, according to the president of the Ontario Trial Lawyers Association.

Following a wide-ranging consultation on reforms, Ontario’s Civil Rules Committee reportedly recommended doing away with jury trials for actions commenced under Rule 76 of the province’s Rules of Civil Procedure, which governs the simplified procedure.

The move would require legislative amendments to enact, but without them, says OTLA president Ron Bohm, the rest of the committee’s proposals, which include strict time limits on trials and a plan to conduct examinations in chief by way of affidavit, could be dead in the water.

“If you have a jury, it’s hard to see how any of the other simplified rules kick in,” says Bohm, a partner with Richmond Hill, Ont. firm Blackburn Lawyers.

“As lay people, you can’t expect jurors to behave like judges and get what they need by reading affidavits. They need evidence presented orally, talked through and explained.” 

But Bohm and his predominantly plaintiff-side membership face a fight from the insurance industry and the lawyers who act for them on the opposite side of the bar in their quest to eliminate civil jury trials under the simplified rules. 

Laura Emmett, president of Canadian Defence Lawyers, says she doesn’t see the need for widescale reform of the simplified procedure.

“I would say that it’s working well overall,” she says, while admitting that the length of trials has become an issue for the courts, exacerbated by judicial shortages and the Supreme Court of Canada’s decision in R. v. Jordan, which imposed strict deadlines on criminal cases heard in Superior Court. 

“Unfortunately, that puts a bigger burden on civil cases, which take somewhat of a back seat to criminal and family law matters,” Emmett says. “But I’m not sure getting rid of the civil jury trial is the best way to resolve that problem.

“The right to a trial by jury is a basic and closely held right in Canada that we should not interfere with lightly,” she adds. 

In a submission to the Civil Rules Committee, the CDL suggested there was some merit to the idea that the attempt to restrict jury trials under Rule 76 could be the thin end of the wedge “in a co-ordinated attack of the civil jury system in the Superior Court.”

The group pointed to the decision and public reaction in the 2016 case of Mandel v. Fakhim to illustrate its concern “about the polarization of the civil litigation (injury) bar and the need to work together to ensure public confidence in an effective justice system.”

Ontario Superior Court Justice Frederick Myers used his ruling in the case to comment that “jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers” after a jury awarded a man just $3,000 in damages for physical and emotional injuries for which he had sought $1.2 million.

“Unfounded comments from lobbyists and from the bench diminish confidence in our system and contribute to the polarization of the litigation bar — something we should all strive to guard against,” the CDL submission reads.

But Bohm says public faith in the entire civil jury system could be put even further at risk if panels continue to be required in cases where the amount in dispute falls under the limit for simplified actions, even if the threshold is raised as planned by the rules committee from to $200,000 from $100,000.

“People are rightfully angry when they find out they’re being asked to give up a few weeks of their lives to adjudicate a claim for $75,000. I certainly would be,” he says.

“For that amount of disruption, you would expect to be hearing a murder, armed robbery or other serious case.

“In my view, it’s an abuse of a really sacred role,” Bohm adds.

Other jurisdictions, including Quebec and the United Kingdom, have eliminated juries altogether in motor vehicle cases, but Bohm notes that Ontario has its own precedent for the removal of the jury option in civil cases.

“I don’t think anyone expects a jury in Small Claims Court or would say that the quality of justice is compromised as a result. I don’t see why it would be different for matters slightly beyond its monetary jurisdiction, which is now up to $25,000,” he says.

Rule 76 has a relatively short history in Ontario, and it underwent its most recent transformation in 2010, following recommendations by former Associate Chief Justice Coulter Osborne in his Civil Justice Reform Project.

At that time, the monetary jurisdiction of the simplified procedure was raised to $100,000 from $50,000, a two-hour limit was placed on oral examinations for discovery and summary judgment was eliminated. 

“If the intent was to provide a simplified procedure that increases access to justice, controls costs and limits the use of valuable resources for cases of modest value, then it has failed miserably,” says Bohm.

Miles Obradovich, a Toronto litigator with almost four decades of experience, welcomes the rules committee’s plan to double the monetary jurisdiction covered by the simplified procedure to $200,000 from $100,000. 

“There are some cases that are now over the limit that would fit nicely into that procedure in terms of the burden of legal work that has to be done to bring a case to trial,” he says.

“In today’s world, it’s not a particularly huge amount of money, and I suspect the amount could even go higher to allow cases to get ready for trial in a shorter timeframe and improve access to justice.”

Albert Wallrap, a senior litigation associate with Dutton Brock LLP, views the 2010 changes as a disappointment in practice.

However, he isn’t convinced a higher monetary limit will make a huge difference, pointing out that the complexity of a case does not always rise in proportion to the value of the claim.

“Some cases are inherently complex, and it gets difficult to keep things moving in the simplified procedure,” he says.

“Because there are no case management masters or judges involved, it’s left to counsel to move things along, but things tend to get set aside and the whole process slows down.

“A bit more case management involvement from the court could be helpful for more complex cases, regardless of the amount,” Wallrap adds.

In addition, he says, the simplified procedure would benefit from a stricter application of the cost consequences baked into the process.

Under Rule 76.13, plaintiffs who launch an action under the normal procedure but are awarded an amount within the jurisdiction of the simplified procedure are supposed to be barred from recovering costs unless they can show the choice to proceed under the regular procedure was a reasonable one.  

“I’m not sure courts have gone that far,” Wallrap says. “But if they start imposing those costs consequences, people will be more inclined to use the simplified procedure, and it will help to reduce the backlog.”

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