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.

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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.


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Daycare centre opening presents a potential litigation problem for owners

The Ontario government has permitted daycare centres to reopen as of June 12, but requires strict adherence to safety rules in order to manage the risk of transmitting COVID-19.

Among other things, the rules require that daycare groups be limited to 10 people or fewer, which must include both children and staff. This is far below the usual capacity of many daycare centres in the province.

While some parents are opting to hold off putting their children back in daycare until Ontario’s COVID-19 numbers are lower, some daycare centres are sure to encounter more demand for spots than they are permitted to offer. The owners of these centres must somehow decide who will get a spot at the daycare and who will not.

Of course, discrimination is prohibited in the context of the Ontario Human Rights Code. Beyond that, however, the concept of favouritism is infrequently litigated. Suppose, for example, that a restaurant owner were to select a customer from the middle of a line outside the restaurant, as opposed to the person at the front of the line, just because the owner had a preference for the person in the middle. This would anger the others in the line, but it is far from clear that it is illegal.

The example of the restaurant owner is preference shown in a frivolous context in which nothing more than a meal at a restaurant is at stake. The decision of who should be given a spot in a daycare centre, on the other hand, may well have far-reaching consequences for the parents of the children requiring the service. It could determine which of them may return to work now, and which may lose their jobs altogether if a work opportunity is presented now that will not be presented later.

The decision in Glasgow v. Deputy Minister of Public Works and Government Services Canada et al., 2008 PSST 7, may provide some guidance as to how courts will view the matter of preference. While it is an administrative decision of the Public Service Staffing Tribunal and therefore only directly applicable to those governed by Canada’s Public Service Employment Act, it has the following to say at para. 41 about the use of “personal favouritism” in deciding appointments:

“Undue personal interests, such as a personal relationship between the person selecting and the appointee should never be the reason for appointing a person. Similarly, the selection of a person as a personal favour, or to gain personal favour with someone else, would be another example of personal favouritism.”

This suggests that the owners of daycare centres may come under legal scrutiny for granting a spot in a centre to one family over another simply because of a personal relationship with that family. While daycare centres are most often private businesses, in the context of the COVID-19 shutdown and gradual reopening, they perform an important public function. The provincial government has left daycare centre owners the important task of determining who gets a spot. There is some precedent for private entities being impressed with public law liabilities in the event that government delegates to them authority over what are arguably public functions. Unbeknownst to the owners, their task may well be fraught with liability.

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