2010: A Rules Odyssey

There are big changes coming to the Rules of Civil
Procedure starting January 1, 2010.  The
Rules govern the process of litigation before the Ontario Superior Court of
Justice.  Sorting out what the changes
will mean in practice, and how the new regulations will be interpreted and
applied, will be an adventure.  Some of
the more significant changes include:

Proportionality

-Proportionality is formally introduced as a principle
with the changes.  For example, Courts
are specifically directed to make orders and give directions that are
proportionate to the importance and complexity of the issues and to the amount
involved in the proceeding.

Discovery
Process

– Each party may only conduct 7 hours of
examinations, absent consent or a Court Order otherwise;

– Proportionality and the cost of responding to
demands is a formally recognized factor;

– The scope of discovery will be narrowed to
relevance (from “semblance of relevance”);

– Parties must agree on a Discovery Plan at the
outset of a case and keep it up to date; and,

– E-Discovery must be formally considered as
part of the Discovery Plan.

Simplified
Procedure

– All cases up to $100,000 will be required to follow
this procedure (rather than $50,000);

– Examinations for Discovery are being introduced but
will be capped at 2 hours; and,

– Cross-examination on Affidavits will be limited to
10 minutes.

Summary
Judgment

– Judges will assess credibility and weigh evidence
(neither are a part of present process);

–
Judges may require a “mini-trial” involving oral evidence

(with or without time limits);

– Costs consequences for the unsuccessful will be less
harsh, normally only partial indemnity costs will be awarded rather than
substantial indemnity costs; and,

– Where summary judgment is refused, a Court may make
wide ranging procedural directions, for example, from requiring meetings of
expert witnesses to produce joint statements summarizing their agreements and
disagreements, to setting time limits for particular witnesses at trial.

Timelines
and Other Changes

– Expert’s reports and responding reports will be due
90 and 60 days prior to the Pre-Trial Conference and must contain certain
specific information set out in a new Rule;

– Motions must be brought on a minimum of 7 days
notice (instead of the current 4 days);

– Separate hearings for different issues may take
place in one action, including liability and damages;

– Status Notices and Status Hearing Notices must be
provided by lawyers to their clients; and,

– Parties themselves (or representatives with full
authority) must attend all Pre-Trial Conferences with their lawyers, unless the
presiding judge orders otherwise.

There will be strategic opportunities and risks to be
balanced as these changes come into force and begin to be interpreted by our
Courts.  The job of outstanding counsel,
as always, will be to make the Rules work for their client.