On January 1, 2010, a number of changes to the Rules of Civil Procedure will come into effect that are expected to have a significant impact on civil litigation. By reducing the cost of litigation, access to justice will increase. The important changes are briefly summarized below.

Increase in the upper limit for Small Claims Court and Simplified Procedure lawsuits.

The advantage of bringing a claim in either Small Claims Court or under the Simplified Procedure in Superior Court is that costs are significantly lower given that certain procedural steps that are otherwise required in Superior Court are omitted. Currently, in order to bring a claim in Small Claims Court, the damages are restricted to $10,000. In order to bring a claim under the Simplified Procedure, damages are restricted to between $10,000 and $50,000. As of January 1, 2010, the upper limits on the damages have been increased. For Small Claims Court, the limit is increased to $25,000; and the limit for the Simplified Procedure is increased to $100,000.

Therefore, potential litigants with claims between $50,000 and $100,000 will now have access to the streamlined process and the corresponding reduction in legal costs.

Reducing the Scope of the Oral and Documentary Discovery Process

The most significant change that will come into force on January 1, 2010 is that the scope of both oral and documentary discoveries will be narrowed.

Currently, in cases where damages exceed $50,000, there is no limit on the length of examinations for discovery. Effective January 1, however, each party will now be limited to a total of seven hours for examination for discovery unless the parties consent to additional discovery or the Court orders otherwise.

Currently, in cases brought under the Simplified Procedure, there are no oral examinations. As such, the parties’ respective understanding of the case often remains limited even up to the eve of trial. Effective January 1, however, each party will be permitted up to two hours for examination for discovery in advance of the trial.

Currently, the Court has no power to place any limits on the discovery process regardless of the amounts in dispute in the case. However, a requirement of “proportionality” will be introduced on January 1 regarding document production and oral discovery. The Court will have the authority to limit questions and document production where the costs associated with responding to the questions and production request are out of proportion to the amount of money in dispute in the case.

Under the current system, oral and documentary discoveries are an expensive step in the litigation process. The above changes that will come into force on January 1 will reduce the costs of litigation by reducing long and overly broad discoveries.

Summary Judgment

Under the current system, a party seeking a quick resolution to an action has the option of bringing a motion for Summary Judgment, which, in essence, is a request for judgment without a trial. Judges hearing summary judgment motions must accept the evidence of the responding party unless the evidence is incapable of being true. Further, the test that the moving party must satisfy to obtain summary judgment is that it must show that there is no genuine issue for trial and that the responding party’s case lacks any possible chance of success. If the moving party is not able to satisfy this onerous test, it is liable to pay the costs of the responding party. This has been seen as a major disincentive to parties with limited funds, who are generally unwilling to risk losing such a motion, even if they have a strong case.

With the new changes coming into effective on January 1, the costs disincentive has been partially addressed. Under the new Rules, the motion Judge will have discretion to determine whether the motion was brought properly (i.e. it was reasonable on the facts of the case to bring such a motion) and what costs, if any, should be payable.

Further, Judges hearing summary judgment motions will be permitted to make assessments of credibility and weigh the evidence in determining whether summary judgment should or should not be granted. Judges can also conduct a “mini-trial” involving oral evidence.

Under the new system, it is expected that summary judgment motions will be brought more often and this will allow parties who seek final judgment in actions where the opposing party’s cases lack merit to obtain a quicker resolution coupled with reduced legal costs.

If you have any questions relating to the aforementioned changes, please do not hesitate to contact us.

Nav Bhandal
Litigation Group
Tel: 905.276.0408
E-mail: nbhandal@kmblaw.com

The comments in this newsletter are of a general nature and are not designed to replace professional advice in specific situations. If you would like extra copies of this newsletter, or you know of anyone who would be interested in joining our mailing list, please contact Cheryl Woolcott at (905) 276-9111.