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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