January 1, 2020 will usher in a new era in Ontario litigation practice. On October 23, 2019, the Ontario Government amended the Rules of Civil Procedure so that cases involving damages of $200,000 or less must be brought under Rule 76, which mandates and provides for a Simplified Procedure. These changes will be effective January 1, 2020 and include the following:
- Juries will no longer hear cases for claims brought under the Simplified Procedure – these cases will proceed by Judge alone (with exceptions for defamation, malicious arrest/prosecution, and false imprisonment);
- Costs will be capped at $50,000 and Disbursements will be capped at $25,000;
- Discoveries will be limited to a total of 3 hours;
- The parties will have to agree to a Trial Management Plan in advance of trial; and
- Trials will be no more than 5 days in length and will involve significantly less oral evidence than under the current rule (significant documentary evidence will be filed, and evidence in chief will be admitted by way of affidavit).
While lawyers are not exactly known for being open to innovation, these changes should be embraced by the personal injury bar. For too long, the costs associated with lengthy jury trials heard under the regular procedure have been a barrier to access to justice. Juries can be unsympathetic to injury victims particularly in cases that result in multi-week trials for chronic pain claims, when the jury has no idea about the threshold, the deductible, or even the fact that the defendant is represented by a large insurance company who will pay the claim! Who can blame jurors for being frustrated by the process, which is overly complicated and cumbersome, for cases that fall within this monetary range?
This juror frustration has most definitely benefited insurers at the expense of injury victims. Indeed, as Justice Myers observed in Mandel v. Fakhim, 2016 ONSC 6538, “…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…”.
The changes to Rule 76 and the expansion of Simplified Procedure to cases involving $200,000 or less is a welcome development and will enable greater access to justice for injury victims. As with anything, the devil is in the details, and we will have to wait and see how the changes are implemented in practice.