Legal principles and procedures often evolve with the times and changes to civil litigation procedure in Ontario are no different. This is usually to meet the needs and morals of the society it serves. In November 2020, the Attorney General of Ontario announced some significant changes to the rules of civil procedure.
These changes (effective from January 2021) have largely been a result of the Covid-19 pandemic as well as attempts to make access to courts and the justice system more accessible to all.
Below, we take a look at all the recent changes to the civil litigation procedure in Ontario. First, we’ll cover the integration and use of technology in the courtroom and its procedures. Then, we take a look at changes that work to promote greater access to justice for the public as well as the general changes to the court rules.
The Increase In The Use Of Technology
Technology in some way or form plays a role in everyone’s lives. But, when the world had orders to stay home during the pandemic, we all started to see the real advantages.
Where telephone conferences or video conference calls were once a means to stay in contact with friends and family, it soon became a way to keep the legal system going.
The justice system has also come to rely more and more on the use of electronic documents. These include electronic court orders, summons, and affidavits signed with an electronic signature.
So, it’s clear that all court procedures from the small claims court to the superior court have seen an increase in the use of technology and it is here to stay. Below we take a look at some of these changes.
Use Of Video Conference Hearings
Telephone or video conference calls started as a means to keep court processes going during the initial stages of the pandemic.
Now, however, holding a virtual hearing has become the norm thanks to the amended Rule 1.08. So much so, that a party who refuses a video conference hearing based on unreasonable objections could face an adverse costs order. This shows a clear intention on part of the Ontario government and court to move online.
But, video conferences are not only to assist the court with trials. Parties can deal with all pre-trial procedures to obtain further information and determine timelines over telephone or video conference.
This not only makes it easier to deal with time-sensitive issues but also relieves the burden on court staff. This is because parties deal with pre-trial conference dates and details before the time. In some cases, personal attendance may not even be necessary.
Rule 1.08 will also apply to mandatory mediation and oral examinations relating to discovery. However, this will not apply to matters on appeal. This rule will also not apply to a case conference that is held over a telephone conference unless the Ontario court determines otherwise.
Further, telephone and video conference calls will help with significantly reducing legal fees. Attorneys will no longer have to travel to and from the court which means clients save on charges of time and fuel.
Email Becomes The Gold Standard
Emails have changed the way and pace that legal professionals are able to communicate. Now, parties can negotiate and settle matters more efficiently. Email has also assisted with the serving and receiving of court documents.
Now, the new rule of civil procedure in Ontario courts has changed significantly. Namely, Rule 16 will provide the service of court documents on parties in an electronic format (without consent or court order) and that this service constitutes personal service. The ability to serve parties personally via email is a huge step for the legal profession.
This simplified procedure means that when a party is served personally via email it is no longer necessary to produce a certificate of service. In other words, receipt of an email or proof of its delivery constitutes proper service.
This new rule, however, does not apply to all processes. For example, originating processes and originating documents, such as statements of the claim, still need to be served personally. In other words, the party to the litigation must receive a hard copy of the document in their hand. Parties are served personally either at their primary residence or place of employment.
This amended rule further lessens the load on court staff. Now, they are able to send certified court documents such as a court order via email. This is a significant time and cost saver. Plus, this new method of electronic service significantly reduces the need for paper documents.
Gone are the days where counsel may have to wait weeks to receive a trial bundle or an issued court order from a court/lawyer’s office just up the road! Instead, they can receive them efficiently via email.
Email is also useful to discuss other matters like allocation of trial dates and pre-trial dates – with the parties’ consent.
Faxing Systems Are Long Gone
Say goodbye to fax numbers! The rules of civil procedure in both the small claims court and the superior court have seen the decline of the fax. While the new rules do provide that faxes can still constitute a method of service, as part of the simplified procedure movement this should be a last resort.
Other than the Ontario rules referencing faxes as a method of service, the new rules delete every other reference to faxing documents.
So, it is no longer required to list the fax numbers of the lawyer or self-represented party on the back sheet of court documents. Instead, lawyers or the self-represented party need only insert their email addresses.
This small change could save a law firm a significant amount of money each month. Now, attorneys will no longer be incurring expenses related to maintaining fax numbers and subscriptions to digital faxing services.
Virtual Commissioning Of Affidavits Is Here To Stay
One of the greatest additions to the new rules is the addition of electronic signatures and virtual commissioning. Now, commissioning of affidavits no longer requires the parties to be in person. This rule previously limited parties who were out of the country, self-isolating, or unable to travel due to health or financial issues.
The new rules acknowledge that the authentication process can be achieved even without the Commissioner of Oaths and the Deponent being physically present in the same place. As a result, the Commissioner for Taking Affidavits Act has been amended accordingly.
This addition to the rules of civil procedure will be a great time and money saver. Now, a deponent will no longer have to waste these costs traveling to a commissioner. Further, it will be possible for a party seeking to start or respond to a legal process to do so even if they are not in the same place as a commissioner.
Electronic commissioning will significantly assist the court system as well as any law firm that urgently needs to comply with time limits. Further, these affidavits can be filed electronically at Ontario court using email.
Change To Rules Of Civil Procedure That Promote Access To Justice
Numerous people require the services of a lawyer or the court on a daily basis. However, many people turn away from the courts as they feel intimidated by the costs and the complex system. Now, the changes to certain court procedures by the Attorney General of Ontario have made the justice system far more accessible.
Simplified Claims Process
If your potential claim is worth $200,000.00 or less then you must bring your claim under the simplified procedure process. The simplified procedure is a streamlined and less costly process for resolving certain civil cases in the Superior Court of Justice.
Small Claims Court Process
If your potential claim is worth $35,000.00 or less you must bring your claim in Small Claims Court which is a part of the Superior Court of Justice. The procedure in small claims court is simple and usually very quick.
The monetary jurisdiction of the Small Claims Court has increased from $25,000 to $35,000, not including interest and costs. The change in the monetary limit means that more claims fall under this lower court.
This will assist parties in bringing their matters to court as the costs are far lower in the Small Claims Court which does not require legal representation. Plus, the small claims court follows simplified procedure rules which are streamlined and easy for members of the public to follow.
A further amendment in the small claims court relates to final orders and appeals. Now, only final orders for claims of $3,500 (excluding costs) may appeal to the Divisional Court. The previous monetary limit was $2,500.
Limits To Costs And Disbursements
One of the main reasons so many people don’t seek legal advice when needed is because of the costs associated with brining a claim. As a result, part of the simplified procedure process and the small claims court process is a limitation on legal costs and disbursement awards to the wining party.
In other words, the court will only grant an order for payment of a limited amount of costs and disbursements after a party wins their case. If your claim is under the Simplified Claims Procedures, the limit for legal costs that can be awarded to a winning party is now capped at $50,000 while the limit for disbursements is $25,000 exclusive of HST.
If your claim is brought in small claims, court the costs awarded to the wining party are usually capped at 15% of the damage award and only limited disbursements are recoverable. Costs are always in the discretion of the trial judge, and will typically significantly be lower then the limit.
This amendment to the rules encourages lawyers handling Simplified Claims and Small Claims Court matters to carefully manage their resources so as to not make their bills too expensive. For example, try and limit travel costs, or engage with experts only if absolutely necessary as you may not be able to recover these costs even if you win at trial.
Changes To Time Limits
There has been a small change to time limits for the the conduct of examinations for discovery. Parties now have 3 hours instead of 2 hours as part of the simplified procedure. This change, although small, will hopefully encourage parties to settle by allocating more time for the parties to exchange information prior to the trial date.
Pre-trials are an essential process to deal with all outstanding trial-related matters in advance. Usually, parties participate in a pre-trial conference on a date that the court specifies or one that is agreed between the parties.
Parties then meet at a pre-trial conference to iron out any outstanding issues relating to the discovery of documents, witnesses, and any other matters.
The simplified procedure rules have set a 180-day time limit within which parties are to schedule a pre-trial conference. Further, the rules set out that parties set a trial management plan in place where parties set out witnesses and discovery information.
This amendment is a great initiative to help speed up the process and prevent constant back and forth between the parties.
Trial Procedure Changes
Trial procedures have also seen some changes under the simplified procedure process. Firstly, jury trials are no longer held in simplified matters. As a result, trials will proceed with one presiding officer known as the judge. However, jury trials will still be conducted if the jury notice was filed and served before 1 January 2020.
The rules now also prohibit ordinary trials. All trials under the simplified procedure have a 5-day summary trial limitation.
As a result, amended trial procedures will allow parties the opportunity to make both an opening statement and closing arguments. The rules also see the elimination of certain limitations for oral examination As well as any restrictions relating to direct examination. Previously, there were only 10 minutes allocated to a direct examination.
Final Thoughts on Changes to Civil Litigation Procedure in Ontario
It’s clear that the court system in Ontario limited access to justice and used outdated methods of procedure. Now, with all the amendments, justice is not only more accessible, but also more affordable.
Even though there is still a long way to go before the court system is completely digital and modernized, the proposed method as it stands can make a huge difference.
Access to justice also means dealing with matters in a timely manner. The amended rules have therefore created simplified procedures that are far more streamlined and efficient.
If you are looking for specific legal advice, get in touch with us as Fosters Law. Our team of insurance litigation and personal injury lawyers can provide expert legal advice and services to help you with your case.