applying the revitalized rules of civil procedure...

Applying the Revitalized Rules of

Civil Procedure: Addressing your

Timing and Process Challenges Presented by:

BARBARA O’GORMAN

416-868-3234

bogorman@thomsonrogers.com

The Advanced Forum for Litigation Law Clerks Wednesday, August 10, 2011 | TORONTO

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AGENDA Overview New Rules Rule 3.01 – Computation of Time Rule 20 – Motion for Summary Judgment Rule 24.1 – Mandatory Mediation Rule 30 to 31 – Examinations for Discovery Rules 34 to 37 – Motions & Applications

Question Period

Rule 50 – Pre-Trial Conference Rule 53 – Expert Reports Rule 76 – Simplified Procedure

Comment

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OVERVIEW

On January 1, 2010, the Rules were changed in a number of significant ways. These changes apply to both existing lawsuits prior to January 1, 2010, and to lawsuits started after January 1, 2010. The changes are the most extensive amendments in the last 25 years to the way that lawsuits are conducted in Ontario.

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WHY DO WE HAVE THE NEW RULES?

Civil Justice Reform Project

Honourable Coulter A. Osborne, Q.C., November 2007

Link to entire Report: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/

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KEY CHANGES

For the purposes of this summit, I have outlined below some of the key changes to the Rules, followed by a comment regarding these changes. The changes offer some hope for injured victims who are frequently frustrated by the cost and delay of a lawsuit. Comments provided are a guideline only, and the statutory provisions listed must be consulted.

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NEW RULES Rule 3.01 Rule 20 Rule 24.1 Rule 29.1 Rule 30-31 Rules 34-37 Rules 50 Rule 53 Rule 76

Computation of Time Motion for Summary Judgment Mandatory Mediation Discovery Plans Examinations for Discovery Motions & Applications Pre-Trial Conference Experts Reports Simplified Procedure

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CHANGES TO SERVICE TIMES

3.01(1)(b)

Where 7 days or less,

holidays are not counted.

Question.

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DEFINITIONS

1.03(1)

“Holiday” MEANS,

• Any Saturday, or Sunday

• New Year’s Day

• Family Day

• Good Friday

• Easter Monday

• Victoria Day

• Canada Day

• Civic Holiday

• Labour Day

• Thanksgiving Day

• Remembrance Day

• Christmas Day

• Boxing Day, and

• Any special holiday proclaimed by the Governor General or the Lieutenant Governor.

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MOTION FOR SUMMARY JUDGMENT RULE 20

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20.04(2.1) & (2.2) newly added

Highlights - Allows a party a chance to obtain judgment in an “unmeritorius action” without the time and expense of a full-fledged trial.

Powers – Motions judge has the ability to weigh the evidence, evaluate creditability, draw inferences and compel testimony by way of oral evidence (mini-trial).

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CHANGES TO RULE 20 CONT’D

20.05

20.06

Powers much more broad and designed to have appropriate cases tried expeditiously: setting time limits for delivery of documents; bringing of motions and filing of material facts not in dispute; establishment of a Discovery Plan; time limits on examinations; ordering evidence by Affidavit; ordering experts to meet; delivery of opening statements; payment into Court; security for costs.

Cost Sanctions for Improper use of Rule – the Court may fix costs on a substantial indemnity basis if a party acted unreasonably or acted in bad faith for the purpose of delay.

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MANDATORY MEDIATION RULE 24.1

24.1.04 (1) 1., 2.

24.1.04 (2) (c), (d), (e), (f), (2.1)

24.1.09(1)

Applies to actions governed by the Rule PRIOR to January 1, 2010, and still applies to Toronto, Ottawa, and Essex County.

Old exceptions still apply, plus, Toronto actions on the Commercial List, Rule 64 (Mortgage) Actions, actions under the Construction Lien Act and Bankruptcy and Insolvency Act, and Class Actions that have been certified.

Mediation must take place within 180 days of defence being filed.

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MANDATORY MEDIATION RULE 24.1 CONT’D

24.1.09(2.1) newly added

24.1.09(5)

Transition – for actions governed by the rule immediately before January 1, 2010, 180 days begins to run on January 1, 2010.

Before setting action down one of the parties must file Form 24.1A or a mediator’s report that matter has concluded.

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MANDATORY MEDIATION RULE 24.1 CONT’D

24.1.09(6) & 24.1.09(6.1)

24.1.09(7.1) new added

24.1.11(1.1)

Mediation coordinator to assign mediator if not done by the parties within 180 days of first defence fling.

Mediation to be held 90 days after appointment of mediator.

Representative of insurer shall attend; insured (your client) no longer required to attend.

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THIRD PARTY CLAIM

29.14

newly added

Third and subsequent party claims are given the same file number as the main action, followed by a suffix letter.

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SCOPE OF THE DISCOVERY PROCESS

RULE 29.1.01

1. Limit on the length of E/D – Each Party 7 hours – unless parties consent to longer E/D or Court Order.

2. Proportionality – imported into the rules regarding documentary productions & E/D & provides authority for the court to limit questions & documentary productions where the cost of responding to such demands is out of proportion to the amount in dispute in the litigation.

3. Scope of E/D changed to a narrower standard being “relevant to any matter in issue”. Need to show actual relevance & not “semblance of relevance” test.

These 3 changes provides a more common-sense approach to E/D, reinforces the opportunity not to abuse the system to overly broad E/D and documentary production demands.

Simplified Rules will now change from NO E/D to each party having up to 2 hours of E/D.

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NEWLY ADDED DISCOVERY PLAN RULE 29.1

29.1.03(1)

29.1.03(2)

Discovery Plan must be agreed to by the parties where a party intends to have a discovery by way of documents, oral or written examination, inspection of property, or medical examination.

Plan may be agreed to on the earlier of 60 days from the close of pleadings, and attempting to obtain evidence.

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NEWLY ADDED DISCOVERY PLAN RULE 29.1 Cont’d

29.1.03(3) Plan shall be in writing and include intended scope of documentary discovery (taking into account relevance, cost, and importance and complexity of the issues); dates for service of affidavits of documents; timing, costs, and manner of production of documents; names of persons to be produced for oral examination; timing and length of oral examinations.

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NEWLY ADDED DISCOVERY PLAN RULE 29.1 Cont’d

29.1.03(4)

29.1.04

29.1.05

PRINCIPLES RE ELECTRONIC DISCOVERY – Parties shall have regard to The Sedona Principles Addressing Electronic Discovery.

DUTY TO UPDATE PLAN – Plan must be updated when information changes.

FAILURE TO AGREE TO PLAN – On any motion regarding discovery, a court may refuse to grant relief if this rule has not been complied with.

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DOCUMENTARY DISCOVERY RULE 30

30.02

30.03(1)

Required to disclose every document that is relevant to any matter in issue.

REVOKED – THERE IS NO LONGER A DEADLINE FOR SERVING AN AFFIDAVIT OF DOCUMENTS , BUT A DEADLINE MUST BE SPECIFIED IN THE DISCOVERY PLAN.

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CHANGES TO RULES 31-37

MOTIONS & APPLICATIONS

31- 37 relied on by the moving party must be

served and filed 7 days before the return of

the motion (includes Notice of Motion,

Affidavits, Facta, & Undertaking &

Refusal Charts)

Responding party at least 4 days prior to

the return date of the motion

Confirmation of Motion or Application –

by 2:00 p.m. 3 days before the return date

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Question

If you were asked to have a motion returnable on Wednesday, August 10, 2011 - when do you file the materials with the Court _____________and – (date)____________ is when are all of the moving party’s motion materials are served and filed with the Court and - the motion must be confirmed prior to 2:00 p.m. on _________________.

Note: 3.01(1)(b)

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July 2011

Sun Mon Tue Wed Thurs

Fri Sat

1 2

3 4 5 6 7 8 9

10 11 12 13 14 15 16

17 18 19 20 21 22 23

24 25 26 27 28 29 30

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August 2011

Sun Mon Tue Wed Thurs Fri Sat

1 2 3 4 5 6

7 8 9 10 11 12 13

14 15 16 17 18 19 20

21 22 23 24 25 26 27

28 29 30 31

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The Impact of the New

Requirements for Pre-trial:

Documents Required, Timelines,

Expert Reports, and Attendance

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Rule 50 – PRE-TRIAL CONFERENCE Entire Rule Revoked and Replaced. Many subsections remain essentially the same.

New Rules

50.01

50.02

PURPOSE – settle without a hearing and to obtain court orders and directions to assist in the most expeditious and least expensive disposition.

PRE-TRIAL CONFERENCES FOR ACTIONS - Parties must schedule a Pre-Trial Conference within 180 days of action being set down for trial; otherwise, the registrar will do so and give notice to the parties.

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Cont’d Pre-Trial Changes

50.04

50.05

MATERIALS TO BE FILED - Serve and file Pre-Trial Conference Brief at least 5 days in advance: nature of action, issues, party’s position, names of witnesses, length of time

ATTENDANCE - Lawyers must attend, parties participate either in person or under Rule 1.08 (telephone/video conference), party must be able to give instructions or obtain instructions.

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Cont’d Pre-Trial Changes

50.06

50.07

50.08(1)

MATTERS TO BE CONSIDERED – Number of witnesses (including experts), and dates for service of experts’ reports.

POWERS - if not settled, judge may establish a timetable, order a case conference (Rule 77 matters), make any other order.

Requirement – if date for trial is fixed, judge completes Pre-Trial Conference Report.

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THE EXPERT’S REPORT

53.03 (1)

53.03 (2)

Serve expert’s report 90 days BEFORE Pre-trial Conference.

Serve expert’s responding report 60 days BEFORE Pre-trial Conference.

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THE EXPERT’S REPORT Cont’d

53.03 (2.1) newly added

1. The expert’s name, address and area of

expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

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THE EXPERT’S REPORT Cont’d

53.02 (2.1)

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reason for his or her opinion, including, any description of the factual assumptions on which the opinion is based.

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THE EXPERT’S REPORT Cont’d

53.02 (2.1)

7. A description of any research conducted by the expert that led him o her to form the opinion.

8. A list of every document, if any, relied on by the expert in forming the opinion.

9. A signed Form 53 – acknowledgement of expert’s duty (see new Rule 4.1.01).

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DUTY OF EXPERT

4.1.01 (1)

4.1.01 (2)

To provide evidence in a fair, objective, non-partisan opinion, evidence related only to matters within areas of expertise, and provides additional assistance as the Court requires.

This duty prevails over any other obligation.

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THE EXPERT’S REPORT Cont’d

According to The Honourable Mr. Justice Osborne (2007), “an expressly prescribed duty to provide the court with a true and complete professional opinion will, at minimum, cause experts to pause and consider the content of their reports and the extent to which their opinions may have been subjected to subtle or overt pressures. Matched with a certification requirement in the expert’s report, it will reinforce that expert evidence of issues. At the end of the day, such a reform cannot hurt the process and will hopefully help limit the extent of expert bias” (p. 76).

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SIMPLIFIED RULES

76.02 (1), 76.13 (2); 76.13 (7) & 76.13 (8)

78.04 (new)

76/09 (1) (new)

$100,000 or less exclusive of interest and costs. If claim falls under this monetary limit, Simplified Procedure is mandatory.

No party shall in conducting an oral examination for discovery, exceed 2 hours regardless of the number of parties or other persons to be examined.

The plaintiff shall, within 180 days after the first Statement of Defence or Notice of Intent is filed, set the action down for trial.

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COMMENT

The complete changes to the Rules are more extensive and detailed than the summary of the key changes noted here.

However, even the changes noted above have the potential to make lawsuits more manageable for litigants suffering from catastrophic injuries and disability.

Will the changes to the Rules of Civil Procedure be successful in improving efficiency of litigation proceedings and reducing litigation costs?

Only time will tell.

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NOW YOU ARE ALL EXPERTS ON THE NEW RULES!