In the course of this Review I heard many different views on the simplified procedure established in rule 76. In assessing these issues, I think further context would be helpful.
In 1996, the Civil Rules Committee established simplified procedure rule 76 for cases claiming $25,000 or less, as a four-year pilot project. At the time, there were concerns that lawyers and their clients were discouraged from pursuing smaller yet meritorious claims because of the disproportionately high cost of litigating them. The Ontario Civil Justice Review 14 and the Canadian Bar Association's (CBA) Systems of Civil Justice Task Force Report both recommended that a simplified procedure be established for claims of relatively modest amounts. 15 The CBA noted that simplified procedures were particularly suitable for simple contract cases (e.g. for services, employment, bills of exchange, cheques, promissory notes and acknowledgement of debt). 16
In 2000, the Simplified Rules Subcommittee of the Civil Rules Committee evaluated the pilot project and concluded that rule 76 worked well, resulted in more cost-effective litigation without compromising procedural fairness, and promoted the expeditious resolution of disputes and more economical use of judicial time.
Rule 76 is now a permanent feature of the Rules of Civil Procedure. Its use is mandatory for claims valued at $50,000 or less. A plaintiff may commence an action under rule 76 for a claim over $50,000 and the claim will continue under that rule unless the defendant objects in the statement of defence.
Concerns about the rule 76 processes were mainly practical. Four issues emerged:
- Should the monetary limit of the simplified procedure be raised?
- Should time-limited discovery be permitted in simplified procedure cases?
- Should the summary trial procedure be abolished or changed? And
- Should appeals from interlocutory orders be prohibited or restricted in simplified procedure cases?
Monetary Limit of the Simplified Procedure
In my view, the simplified procedure monetary limit should be raised. At Toronto consultations, there was considerable support for a substantial boost – some advocated to $250,000. Out-of-Toronto opinion favoured a more modest change. However, there was a general degree of support for some increase. Most of those consulted, in and out of Toronto, support an increase to $100,000 and this is what I recommend. I considered whether any increase should be calibrated geographically, i.e., higher in Toronto and lower elsewhere. In the end, I rejected that approach, which would encourage venue shopping and fragment the province for little useful purpose.
The streamlined rule 76 procedures, I believe, ought to be applicable to more cases. The rule offers significant cost- and time-saving mechanisms, such as the ability to bring motions without filing full motion records and affidavits, a relaxed summary judgment test and early disclosure of documents and witness names. Furthermore, it seems inevitable that if the Small Claims Court jurisdiction is increased, as I have recommended, the monetary limit for the simplified procedure should also be increased in recognition of the same proportionality principle that drives the increase in the Small Claims Court's monetary jurisdiction.
The primary concern with an increase to the monetary limit of rule 76 is that more complex cases, such as personal injury, will be subject to it. While this may occur, I do not see it as a sufficient reason to maintain the current limit. With the introduction of time-limited discovery, discussed below, the key differences between the simplified procedure and the ordinary procedure are primarily access to the time- and cost-saving processes that rule 76 offers. I do not see how complex cases will be prejudiced under rule 76 or why they should not equally share its benefits.
Currently, simplified procedure cases at the $50,000 limit comprise approximately 25% of actions commenced in the Superior Court of Justice (approximately 14,037 actions). 17 In 2005-06, 6,022 Superior Court cases were commenced seeking damages between $50,001 and $100,000. A straight-line calculation, without factoring in a reduction of cases from an increase in the Small Claims Court monetary jurisdiction, would result in an estimated 20,059 cases being subject to rule 76 (36% of all Superior Court actions). An increase in the Small Claims Court's monetary jurisdiction to $25,000 is estimated to result in a reduction in claims commenced in the Superior Court by roughly 6,555. My admittedly rough estimate is that about 6,000 additional cases would be subject to the simplified procedure and the Small Claims Court rules upon increases of the monetary jurisdictions to $100,000 and $25,000, respectively.
I have considered whether an increase to the monetary limit of the simplified procedure ought to be staged. An incremental increase would permit an evaluation of the effectiveness of the simplified procedure at an initial monetary increase prior to any further change. However, in the extensive consultations we have had, significant support was expressed for increasing the limit to $100,000 immediately so long as some oral discovery is permitted. A staged increase is more appropriate for the Small Claims Court. In the Small Claims Court, the volume of additional cases upon any increase may need to be carefully monitored on resource availability and planning grounds. An increase in the monetary limit of the simplified procedure does not raise the same concerns. Actions would simply move from the ordinary procedure stream in the Superior Court of Justice to the simplified procedure stream, to be heard in the same court by the same pool of judges. In fact, moving more cases to the simplified procedure stream should help relieve already strained Superior Court judicial resources, since in simplified procedure cases interlocutory proceedings are typically fewer and less complex and trials tend to be shorter.
I wish to make two final observations. First, if the monetary limit of the simplified procedure rule 76 is increased, some consideration should be given to setting a cap in cases of multiple plaintiffs. Currently, subrule 76.02(2) provides that if there are two or more plaintiffs, the simplified procedure applies if each of the plaintiffs' claims, considered separately, is within the monetary limit. Thus, if there are two plaintiffs in the same action, each with a claim valued at $50,000, that action must be commenced under the simplified procedure even though the plaintiffs' aggregated claims total $100,000. This may be the proper approach even if the monetary limit is increased. However, the Civil Rules Committee may wish to consider whether an increase in the complexity and significance of cases that may come with an increase in the monetary limit also justifies a reconsideration of the effect of subrule 76.02(2).
Second, I note that amendments to s. 19 of the Courts of Justice Act enacted by s. 3 of Schedule A to the Access to Justice Act will, as of October 1, 2007, effectively increase the appellate jurisdiction of the Divisional Court to matters involving a final order of a judge for a single or periodic payments of not more than $50,000. This change means that the Divisional Court will generally have jurisdiction over appeals of cases subject to the simplified procedure. If the monetary limit of the simplified procedure increases further, it may be appropriate to similarly amend the appellate jurisdiction of the Divisional Court in the Courts of Justice Act. Or it may make sense to allow the court's monetary appellate jurisdiction to be fixed and amended by regulation, rather than statute, to more easily accommodate future increases to the simplified procedure monetary limit.
Discovery in Simplified Procedure Cases
The prohibition on examinations for discovery was a key concern for many consulted. Judges and lawyers said that the absence of pre-trial discovery resulted in discoveries being conducted at trial and delayed meaningful settlement discussions. They noted that the problem is particularly acute where credibility is in issue. Some lawyers said that they feel that they are going to trial “blind.” This concern was said to be especially relevant in personal injury litigation.
In approaching the discovery issue as related to simplified procedure cases, it makes considerable sense not to ignore the fact that most simplified procedure cases settle now. 18 Adding discovery to the process will impose that cost on all simplified procedure cases, including those that would have settled in the ordinary course of events. However, I think discovery will be a more important issue if the simplified procedure monetary limit is increased, as I think it should be.
Some jurisdictions that have a form of simplified procedure permit limited discovery – e.g., up to six hours in Alberta and two hours in British Columbia, per party. These discovery time limits can be expanded on consent or by order. Prince Edward Island, New Brunswick and Saskatchewan permit no oral discovery.
In dealing with the discovery issue, I have assumed that my recommendation to increase the simplified procedure monetary limit to $100,000 is accepted. This, in my view, strengthens the case for time-limited discoveries in simplified procedure cases. I also recognize that in the real world counsel in many simplified procedure cases are now having short discoveries on consent.
I believe time-limited discoveries should be allowed in simplified procedure cases where the cost is in balance with the amounts or issues at stake. I do not think that discovery will be necessary in all cases. Counsel should be able to identify those cases where discovery would be a waste of time and money. I think, in particular, of debt collection cases where on a case-by-case assessment discovery may accomplish nothing beyond increasing costs.
Summary Trials in the Simplified Procedure
Lawyers and judges had divergent views on the summary trial procedure, although relatively few lawyers had any experience using it. Several said that the procedure for summary trials was still unfamiliar to many, and that the cost of preparing affidavits for summary trials can actually make them more expensive than traditional trials.
Some suggested that parties and counsel simply do not like summary trials because the process does not accommodate, at least to the usual degree, the ability of parties and witnesses to tell their story first hand. The concern expressed was that the first time the trial judge hears from witnesses is when they are being cross-examined. It was also suggested that reliance primarily on affidavit evidence is unfair, as evidence is submitted to the court in advance of the trial, before its credibility has been tested.
On the other hand, some cited the advantages of being able to carefully set out in writing the witnesses' evidence in chief, noting that some witnesses simply do not perform well on the stand. There were a handful of lawyers who liked the summary trial process and thought that it could work well for certain cases.
In several jurisdictions with a simplified stream for cases, the trial procedure is also simplified. A common feature of these simplified trials is that evidence is largely adduced by way of affidavit and cross-examination and oral argument at trial are time-limited. 19 In Manitoba, it is left to the court to determine whether summary trial procedures of this kind should be imposed. 20
Approximately seven years ago, the 2000 Evaluation Report on rule 76 noted that summary trials were underused. It recommended that they be continued but that the rules be amended to allow the pre-trial judge, master or trial judge to permit more time to cross-examine on affidavits. This recommendation is now incorporated in rule 76.10(7) and 76.12(2), which confer authority to vary the times prescribed in the rules. The 2000 report also recommended simplifying the process for obtaining a summary trial. Now, parties may agree on the mode of trial (summary or ordinary trial) at the pre-trial conference. Where they are unable to agree, a pre-trial judge or master determines the mode of trial that is appropriate in the circumstances. 21
2005-06 data reveals that only 126 summary trials were held throughout the province. 22 During consultations, unfamiliarity with the process and the cost of preparing affidavits were mentioned as reasons why the summary trial was avoided. While in some cases the cost of preparing an affidavit for a summary trial may be substantial, some lawyers did say that summary trials can be effective and cost-efficient. I recognize that summary trials may not be preferred or appropriate for all case types, but on balance I think it would be a step backwards to eliminate access to this mode of adjudication. Accordingly, I do not recommend the abolition of summary trials in simplified procedure cases. Nor do I think that it would make sense to eliminate the evidence by affidavit provisions of rule 76.
In my view, the creation of multiple procedural tiers for different kinds of actions increases the complexity of the rules and often fosters confusion. I prefer to leave it to the parties to agree on the appropriate mode of trial, or where they are unable to agree, to have the presiding pre-trial judge or master make an order as to the mode of trial, as is currently prescribed in subrule 76.10(6). The summary trial process ought to be used more regularly in cases that are legally and factually straightforward. I would encourage the bench and bar at all pre-trials of simplified procedure cases to seriously consider its use.
The option of allowing some time-limited form of examination-in-chief may go some way to responding to the other key concerns about the summary trial. That is, allowing a brief examination-in-chief will permit a deponent to briefly tell his or her version of the events and become more comfortable in the witness box, and may assist counsel in setting up his or her case for the court. Moreover, where a deponent's credibility is in issue, judges may be better able to assess credibility where they have seen the deponent both examined in chief and cross-examined. I expect, however, that in many cases there will be no need for examinations-in-chief. Affidavit evidence may be more than sufficient, particularly in simpler or smaller cases, or where credibility is not in issue or where opposing parties do not need to cross-examine the deponent. All of these concerns become more relevant if the monetary limit for the simplified procedure is increased.
Any additional cost would be marginal. I hope that cost concerns, as well as considerations of proportionality, will result in parties conducting time-limited examinations-in-chief only where truly necessary and appropriate. I also believe that these changes to the summary trial procedure would allow flexibility in tailoring the features of the trial to the demands of each specific case, increase parties' confidence in the trial process by allowing them an opportunity to tell their stories, and render the summary trial procedure more workable for and appealing to counsel.
Appeals of Interlocutory Orders in Simplified Procedure Cases
There may be some wisdom to limiting appeals of non-final orders in simplified procedure cases, in keeping with the principle of proportionality. I note that in Alberta an appeal to the Court of Appeal or from a master to a judge may be brought only from a judgment or order finally determining all or some part of the substantive rights in issue in the action. 23 This rule, I understand, applies to all cases including the equivalent of our simplified procedure cases.
The simplified procedure rule seeks to promote cost-effective litigation and the expeditious resolution of disputes without compromising procedural fairness. In my view, some restriction on appeal rights from interlocutory orders would be consistent with these objectives and the principle that time and expense of any proceeding should be proportionate to the amount in dispute and the importance of the issues at stake. A restriction on appeals may take the form of a strict leave requirement, a limited appeal route to only one higher court or judicial officer, or a prohibition on all such appeals. I leave it to the Civil Rules Committee to consider these and any other options and to recommend a proposal to limit appeals of interlocutory orders in simplified procedure cases that will not compromise procedural fairness.
My preference is a model permitting appeals without leave if the order finally disposes of the action. If it does not finally dispose of the action, there should be no appeal unless leave is granted. In my view, such leave applications should be in writing. If leave is granted, the appeal should be heard by a single judge of the Divisional Court.
Recommendations (Simplified Procedure)
- The monetary jurisdiction of rule 76 should increase to $100,000 on a province-wide basis, to be implemented as soon as practicable.
- Upon any increase to the monetary limit of rule 76, each party should be permitted to engage in up to two hours of discovery after giving due consideration to the cost of discovery in relation to the amounts or issues at stake.
- The summary trial option should remain in place for all simplified procedure cases. It should, however, be amended to permit a brief opportunity for examination-in-chief or general statement of any party who has sworn an affidavit for the summary trial. I would allocate no more than 10 minutes for this statement or examination-in-chief, subject to an order of the pre-trial judge or master or the trial judge to extend this time.
- The Civil Rules Committee should consider whether and how, in keeping with the principle of proportionality and without compromising procedural fairness, appeals from interlocutory orders made in simplified procedure cases ought to be prohibited or otherwise restricted.