Significant changes to the Superior Court Simplified Procedure came into effect on January 1, 2020. Budget Bill 2019 amended section 108 of the Courts of Justice Act to eliminate trials by jury under the Simplified Procedure. Regulatory changes filed October 23, 2019 unveiled significant further changes to the Simplified Procedure as prescribed by Rule 76 of Ontario’s Rules of Civil Procedure. Both the amendments to the Courts of Justice Act and to Rule 76 took effect on January 1, 2020.
With the elimination of juries, increased monetary jurisdiction of $200,000, streamlined processes, and cap on costs and disbursements, more actions commenced in Superior Court will proceed by Simplified Procedure. This article highlights some key changes, and practice management tips to help lawyers navigate the new terrain.
The Simplified Procedure regime features several key changes effective January 1, 2020, including:
A new $200,000 claim limit
The monetary jurisdiction has doubled from $100,000 to $200,000 exclusive of interest. With the Small Claims Court limit increasing to $35,000, the Simplified Procedure can be used for claims between $35,000 and $200,000.
Cap on costs and disbursements
Subrule 76.12.1(1) states that except as provided under subrule 76.13 (regarding costs consequences) or an Act, no party may recover costs exceeding $50,000 or disbursements exceeding $25,000, exclusive of HST. However, costs are still in the jurisdiction and at the discretion of the trial judge.
Under subrule 76.12.1(2), the limits on costs do not apply to actions commenced before January 1, 2020.
Increased time for oral discovery
Each party will have up to three hours for examination for discovery, up from the 2-hour limit.
Trials are capped at 5 days
To facilitate the timely resolution of claims, trials are limited to five days. The trial judge has no discretion to extend the duration of the trial.
No jury trials
Actions proceeding by Simplified Procedure will no longer have jury trials.
Where a claim under the Simplified Procedure involves a claim for slander, libel, malicious arrest, malicious prosecution or false imprisonment, a party can serve a jury notice, with a notice (Form 76A) stating that the action and any related proceedings are continued as an ordinary action (See new subrule 76.02.1).
An action assigned to case management may not continue under Rule 76 (subrule 76.02(5)(d)).
For cases where a jury notice was served before January 1, 2020, the action can proceed with a jury under the Simplified Procedure (See new Rule 76.14).
No summary trials
The Rule 76 “summary trial” procedure is revoked. As of January 1, 2020, all Simplified Procedure trials will follow the new path to trial and trial process as described below.
The new path to trial and trial process
The new Rule 76 Simplified Procedure path to trial features several new elements, including:
Use of experts
An expert report served must be appended to the expert’s affidavit, in which the expert adopts the report for the purpose of giving it as evidence in the action.
A party intending to call expert evidence must still also comply with Rule 53.03 which governs the timing of the delivery of expert reports before a pre-trial conference and the content of the expert report.
Pre-trial conference scheduling is now the responsibility of the parties
The parties are now responsible for scheduling the pre-trial conference. The registrar previously served notice of a pre-trial schedule. As of January 1, 2020, the parties must now schedule the pre-trial conference under Rule 50.02.
Under Rule 50.02, the parties must schedule a date for the parties to attend a pre-trial conference within 180 days after the action is set down for trial at a time acceptable to all parties, unless the court orders otherwise. (If the parties fail to do so, the registrar will schedule a pre-trial conference, subject to any previous order.)
New required proposed trial management plan, with trials not to exceed 5 days
The parties must agree to a proposed trial management plan at least 30 days before a pre-trial conference. It should include:
- A list of every witness, including expert witnesses; and
- A detailed time allocation setting out the time for each party for their opening statements, evidence in chief by affidavit (under Rule 31.11), cross-examination, re-examination and oral argument.
- The time allocation “shall” not exceed five days.
The pre-trial conference
There are new documents required to be filed five days before the pre-trial conference including a proposed trial management plan, any expert affidavit, other than a supplementary expert affidavit, and a statement not exceeding three pages setting out the issues and party’s position.
The pre-trial conference judge or case management master will either review and approve or amend the proposed trial management plan. However, the new rule expressly states that any changes are “subject to the requirement that the duration of the trial not exceed five days” (Subrule 76.10(5)).
A case management master or pre-trial conference judge will set the number of witnesses each party may call, fix dates for the delivery of any witness affidavits including expert affidavits, and fix the date for trial (subject to the direction of the regional senior judge).
New trial procedure
New subrule 76.12(1) sets out the new procedure governing the conduct of a trial proceeding under the Simplified Procedure. The trial process is now mandated, and counsel headed to trial should familiarize themselves with the requirements.
A trial judge may vary a time in a trial management plan except the duration of trial exceeding five days.
