Effective January 1, 2020 significant amendments to Ontario’s Rules of Civil Procedure (the “Rules”) came into effect. Among the most noteworthy amendments are the changes to the Simplified Procedure outlined under Rule 76.
Formerly the Simplified Procedure, which is a more streamlined and cost-effective litigation process, was previously mandatory for claims under $100,000. The amendments to the Rules have now made the Simplified Procedure mandatory for claims up to $200,000. As a result, for those practising in employment law, where the damages at stake are frequently under this threshold, it will be important for counsel and their clients to have a good understanding of these changes, as they will impact strategic considerations in terms of counsel’s approach to a particular case.
While it is beyond the scope of this post to outline all the changes, some of the noteworthy highlights, at least from this writer’s perspective, are the following:
- Simplified Procedure cases cannot proceed by way of a jury trial, except in limited circumstances, which will not apply in most employment law cases;
- The trial of the action must be completed in a total of five days;
- Evidence in chief will need to be adduced by way of affidavit;
- Examinations for discovery will be limited to three hours of examination, rather than the previously prescribed two hours;
- Counsel will be required to prepare a Trial Management Plan, subject to approval by the Pre-Trial Judge, outlining a list of witnesses and the time to be allocated to all aspects of the trial, including opening statements, evidence in chief, cross-examination, re-examination and oral argument; and
- Costs awards will be limited to $50,000 in fees, and $25,000 in disbursements, exclusive of HST.
As an employment lawyer, I believe that in most straightforward wrongful dismissal cases, these amendments will be an effective way of further streamlining the litigation process, and reducing the overall cost of litigation for all parties involved. However, in more complex cases, where, for example, issues of discrimination, workplace accommodation, etc. are interwoven in an action for wrongful dismissal, I am somewhat skeptical of the court’s ability to correctly decide such cases, where the bulk of the evidence is to be adduced by way of affidavit. I also query, whether, as a result of these changes, we will actually see fewer Simplified Procedure actions as some counsel may be more inclined to inflate claims, to ensure the value exceeds the Simplified Procedure threshold, thereby allowing them access to the more fulsome trial procedure available for regular actions.
Disclaimer: As always, this post does not constitute legal advice and we would encourage you to seek professional legal advice from one of our knowledgeable lawyers before making any decisions with respect to your own case.