The new Rule 76 and strategy in personal injury cases

The beginning of 2020 saw several changes to Rule 76 of the Rules of Civil Procedure that are of particular import to personal injury cases. Among other things, jury trials are no longer available under the Ontario Superior Court of Justice’s simplified procedure for claims of $200,000 or less, and there will be a five-day limit to any trials resulting from actions commenced under the rule. There are exceptions to this change for cases of slander, libel, malicious arrest or prosecution, and false imprisonment, but not for personal injury.

In one sense, the changes may present an advantage for personal injury plaintiffs, to whom Ontario juries – unlike, perhaps, in the United States – have not always been sympathetic (large awards to personal injury plaintiffs results in increased insurance premiums for everyone, after all, including jury members), since bringing a case under the simplified procedure now eliminates any chance of a defendant insurance company insisting on a jury trial. In another sense, however, this change gives rise to some strategic challenges. The simplified procedure caps damages at $200,000 and costs at $50,000, which means that the plaintiff must weigh at the outset the advantage of avoiding a jury trial with the possibility that the claim maybe able to recover more than $200,000 under the ordinary procedure. In addition, plaintiff’s counsel must carefully assess whether the matter will absorb significantly more time than would be covered by $50,000.

The new Rule 76 does provide some built-in cost-saving measures, such as limiting trials to a maximum of five days. Oral discovery has also always been limited, with the maximum length increasing from two hours to three under the new rule. Pre-trial conferences must now be scheduled 180 days after the action is set down for trial, and the parties must come to an agreement on a trial management plan at least 30 days prior to the pre-trial conference.

That being said, pre-trial materials are significantly more onerous under the changes to the rule, with a requirement to file all documents relied upon five days prior to the pre-trial. This was likely intended as a means of increasing the efficiency of the action overall and ensuring that parties are prepared to go to trial sooner. On the positive side, it may have the consequence of prompting an earlier settlement. Whereas parties have traditionally settled on the eve of trial once their lawyers are fully prepared for battle, the new rule aspires to push the preparation, and therefore the settlement, up to the pre-trial stage. Presumably, if parties settle on the eve of pre-trial rather than the eve of trial, the pressures on the court’s trial dockets will be considerably reduced.

The new Rule 76 may well prove to be a game-changer when it comes to strategy for personal injury counsel. This is especially true for smaller cases, where plaintiff’s counsel would like to avoid a jury.

Direct: (416) 342-5531

Email: jbrodski@pacelawfirm.com

Ask an Expert: Legal advice on what businesses can do to survive the crisis

Join legal experts and learn how to best respond to and manage the many challenges that threaten your business in these unprecedented times.

About this Event

Please join our panel of leading legal experts and learn how to best respond to and manage the many challenges that threaten your business daily in these unprecedented times.

Our panel will cut to the chase on the most valuable “need to know” information and provide you with invaluable takeaways that will help you get through this as best as possible, given your situation.

They will address questions and issues such as:

  • Where and how to start to restructure a business to prevent painful legal actions and shutdowns?
  • How to deal with expensive employment issues such as downsizing?
  • How can my business collect from others who owe us money?
  • How do I protect my personal assets?
  • What government assistance programs can I use?
  • What legal actions might arise and how best do I deal with them?

We are taking questions in advance that can be submitted when you register. For more information, please contact edo@simcoe.ca.

Don Jack, one of Canada’s leading business litigators will moderate and pose your most pressing questions to Pavle Masic and Jason Dutrizac of DS Avocats who work closely with clients on proactive solutions to prevent and/or mitigate insolvency and bankruptcy and to avail every legal option available to them.

Andrew Camman of Polishuk, Camman and Steel and David Law of Law at Work, are two senior leading employment and labour lawyers who will share their “in the trenches” advice on how to take full advantage of short term subsidies such as CEWS, how to make the tough decisions about downsizing and what your legal obligations and rights are.

Details for joining the meeting will be sent in advance of the event.

This session is part of the ‘Ask an Expert’ series presented in partnership with the Small Business Centre of Barrie, Simcoe County and Orillia, South Georgian Bay Small Business Enterprise Centre, Orillia Area Community Development Corporation, Nottawasaga Futures, North Simcoe Community Futures Development Corporation and the Centre for Business and Economic Development.

Courts requiring hearings to proceed by video conference

Before the COVID-19 pandemic and societal shutdown, it was quite rare for a court to hear a matter by video conference, and even rarer for a judge to order that a matter be heard that way. This is in spite of the fact that the Rules of Civil Procedure have explicitly permitted proceedings to be conducted this way for over two decades.

But as with so many other things, this has now changed, and the courts have suggested that the change may well be a permanent one. In Arconti v. Smith, J2020 ONSC 2782, Justice Myers had the following to say at paragraph 19 regarding a plaintiff that did not wish to have to examine a defendant over video conference:

“In my view, the simplest answer to this issue is, ‘It’s 2020’. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”

This position was upheld in Miller v. FSD Pharma, Inc., 2020 ONSC 3291, which required a high-stakes motion to proceed via video conference during the shutdown. Plaintiff’s counsel argued that it would be preferable to wait until the entire legal team could be assembled as lead counsel is often assisted by other lawyers who sit nearby. The court found, however, that the legal community has had sufficient time to adapt to the new circumstances, and that as the future of in-person gatherings remains unpredictable, the motion cannot be put off indefinitely.

The Federal Court of Australia has also weighed in on this issue. In Capic v Ford Motor Company of Australia Limited, [2020] FCA 486, the judge explicitly suggested a way to address the problem of the legal team not being physically present in the same room, noting that “in the hearing last month to which I have already referred senior and junior counsel who were isolated from each other communicated with one another and independently of me using WhatsApp”.

It is in any case fairly clear that, lawyers will be expected to examine witnesses and conduct court proceedings by video conference for the time being, and may well have to permanently accept this new way of doing things.

Email: jbrodski@pacelawfirm.com

Direct: (416) 342-5531