Background
The civil justice system has been in need of reform. In early April, there was a release of Phase 2 of the Consultation Paper pertaining to the Civil Rules of Procedure (the “Rules”). The paper came as a surprise to many people, as the changes being proposed are going to drastically affect the way parties handle claims. The drive behind the changes is to make the legal justice system more accessible, cost-effective and expeditious. The civil justice system has been described as being complex for litigants that more time is spent fighting the process, rather than focusing on the actual dispute. As a result, the proposed changes to the Rules were intended to deal with the issues and make civil court proceedings more efficient, affordable, and accessible. It is important to understand what the Rules aim to achieve, as it will be imperative in how they will be interpreted and applied by the Court.
The Proposed Changes
Pre-Litigation Protocols
One of the ways to make the civil justice system accessible and expeditious is by implementing pre-litigation protocols. Parties will be required to exchange information and specific relevant documents early in an effort to resolve their disputes before starting Court proceedings. There is recognition that it may be difficult to meaningfully participate in settlement discussions before the expiration of the limitation period. For that reason, there is a recommendation to increase the basic limitation period for civil actions from two to three years.
Procedural
i. Service
One of the benefits of the proposed Rules is how personal service is handled. There is recognition that effecting personal service can be costly and time sensitive. The new Rules would allow service by email as an alternative to personal service. It would also require parties to confirm acceptance of service whenever a claim comes to their attention in any manner. Parties who breach their service-related duties can be liable to pay costs. The Rules will also allow service of a claim on a lawyer who has been communicating with the claimant regarding the subject of the litigation.
ii. Default Proceedings
Setting aside default judgments will become more onerous. Claimants will need to personally serve Defendants with a Notice of Default. Defendants will then have 14 days to serve and file a request that the Notice of Default be set aside. This would trigger a Directions Conference to address the issue (more on that below).
If the Notice of Default is set aside, the claimant can be entitled to a costs award. The Court can then set a date for delivering the Statement of Defence.
The Litigation
i. One Standard Claim
If the parties are unsuccessful in resolving their dispute, Plaintiffs will be able to use one standard online form that will be easy for them to use. There will be no choice between applications or actions.
ii. Up-front Evidence Model
A. No Examinations for Discovery
Examinations for Discovery will be completely eliminated under the up-front evidence model. There will be an emphasis on documentary disclosure, as opposed to oral examinations of parties. There will be no opportunity to meet or examine the Plaintiff or Defendant before trial.
B. Reliance on Documentary Disclosure
The up-front evidence model focuses on documentary disclosure early on. Parties will first produce documents in their possession when the pleadings are served.
Once pleadings are closed, parties will have to provide primary disclosure. This will consist of sworn witness statements, Affidavits of Documents, and a proposed timetable for the exchange of expert reports.
There will also be opportunities for supplementary disclosure if parties are unhappy with the extent of the disclosure they have received to date. Limited written interrogatories will be allowed if they will provide an additional means to understand the other side’s case. The questions will need to be answered, unless they are considered scandalous, call for disproportionate disclosure or seek privileged information.
C. Limited Expert Evidence
With respect to expert evidence, claimants must identify proposed experts at the outset. There will be a maximum of one expert per party per issue. All expert reports must be served well in advance of the trial management conference. In specific types of disputes (e.g., property valuation or medical causation), the parties may be required to jointly retain a single expert, whose evidence will serve as the primary basis for resolution unless compelling reasons are demonstrated to do otherwise. There is also a proposal to include concurrent expert evidence, allowing experts to testify simultaneously in a moderated discussion, responding to questions from the judge, counsel and each other.
iii. Directions Conference
Once the claim is issued, a case conference will be scheduled to take place one year from when the claim is commenced. Should there be any issue with the pleadings or jurisdiction, the Defendant can trigger a Directions Conference. A Directions Conference would occur within one year of when the claim was issued. However, if there is no need for a Directions Conference, the parties would proceed with the remaining pleadings, exchange of Affidavits and documents.
The Directions Conference can take place if a party requests that the matter proceed by way of a paper-based summary hearing process or if a party seeks any form of interlocutory relief that relates to more than scheduling.
There is also the introduction of the “paper record+ process” that would have two types of proceedings:
A. Presumptive Summary Proceedings
For numerous claims, particularly those initiated under statutory frameworks or where disputes predominantly involve legal issues, a “Summary Hearing” model has been suggested. These hearings would:
- Proceed entirely with a paper record (witness statements, expert reports, documents),
- Be presumptively used in all matters unless parties seek an exemption at the Directions Conference
- Allow judges discretion to call for limited oral submissions or evidence if clarity is needed.
B. Non-Presumptive Summary Proceeding
In more complex or fact-heavy cases, summary hearings would remain available by motion. However, all requests for summary proceedings must be screened at a Directions Conference, where the Court will assess their appropriateness based on the record and legal issues at stake. The Directions Conference Judge will then decide if the matter will be determined using this process.
iv. Scheduling Conference
If there is no need for a motion or a Directions Conference, the parties will attend the Scheduling Conference one year following the issuance of the claim.
The Scheduling Conference will be a brief Court appearance exclusively dealing with scheduling issues. A firm deadline for expert disclosure will be established either at the one year Scheduling Conference or the Directions conference. Failure to comply will trigger exclusionary sanctions and costs.
The purpose of the Scheduling Conference is to ensure the proceeding is on track. At that point, the Court will set dates for a mandatory mediation. Parties are required to exchange detailed mediation briefs 30 days prior to the scheduled session.
Trial management conferences would also be scheduled at the scheduling conference. Trial Management Conferences are meant to finalize the scope of trial, address any pre-trial disputes, confirm trial readiness, and ensure compliance with earlier procedural orders. They would occur at least 90 days before trial. Parties may attend an early Scheduling Conference if they anticipate having issues completing the up-front evidence exchange within one year or be ready for trial in two years. This would occur in cases where the damages cannot be fully materialized in time. The Court can place the case on an inactive list for up to one year.
v. Dispositive Hearing/Trial
A dispositive hearing or a trial will then take place within two years from the issuance of the claim. During the Scheduling Conference, parties will receive a presumptive dispositive hearing date — that is, a trial or summary hearing — and these dates will be safeguarded against adjournment except in truly exceptional circumstances.
Takeaways
If they come into effect, the new Rules will drastically change how the insurance industry is practiced.
- There will be a requirement to invest time and money once a file is open in order to comply with the up-front evidence model. Even if a claim does not have merit, there will be a need to spend a considerable amount of time and money investigating the matter and preparing the file for a dispositive hearing or trial. There will also be a need to resolve issues, such as coverage disputes, quickly.
- Identifying witnesses early on and obtaining witness statements will be onerous. As it currently stands, it can take months to obtain documents from third parties. The police and Crown will also not release their files when there are matters before the Court. This will lead to parties not identifying their witnesses in time for when the witness statements should be delivered.
- Eliminating oral examinations for discovery is going to be a difficult adjustment. Examinations for Discovery enable the examining party to know the case he or she has to meet, as well as obtain admissions necessary to weaken an opposing party’s case. It allows examining parties to avoid surprises at trial, as well as eliminate and narrow down issues. Most importantly, oral Examinations for Discovery allow the examining party to see how the opposing party would present at trial and be able to assess credibility accordingly.
- The speed at which cases will move will be problematic in specific practice areas. For instance, in a personal injury claim where the Plaintiff is significantly injured, insurers may be in a position where they settle a claim at the 2 year mark for a large amount without being able to see how the individual recovers. Many medical experts are unable to comment on prognosis before two years. Similarly, in cases dealing with minors, there will not be an opportunity to assess how the impairments manifest themselves in educational or workplace settings.
- The mandatory timeline of proceedings will likely lead to professional indemnity claims for lawyers. There is a higher chance of missing limitation periods and missing deadlines when there are many to comply with. Lawyers unable to build their case in time for the scheduling conference may face professional negligence claims.
- There is also a high chance that we see more cases going to trial. This will require a significant amount of time to prepare and will be costly. On the other hand, the trials will be shorter and the issues in dispute will be narrow.
- The new Rules would remove the barrier to entry by making it easy to start a claim. By having a simple form for all parties to use to commence a claim, there is a higher chance of seeing more self-represented parties. Unfortunately, this may also lead to claims that would never have entered the civil system in the first place.
