What's New? Changes to the Rules of Civil Procedure
This document provides general information about the changes to the Rules of Civil Procedure. It does not cover every change to the Rules of Civil Procedure. It does not explain the law. Before proceeding with a case in the Superior Court of Justice on your own, consider talking to a lawyer to help you understand the law and the procedures which might apply to your case.
Effective January 1, 2010
On January 1, 2010 new civil court rules under the Rules of Civil Procedure will come into effect.
Why were the civil rules reformed?
In June 2006, the Ontario government asked a former Associate Chief Justice of Ontario, the Honourable Coulter Osborne, to review and recommend improvements to the civil justice system to make it more accessible and affordable for Ontarians.
After widespread consultation, his report was submitted to the Attorney General of Ontario on November 20, 2007. This report is called Summary of Findings and Recommendations of the Civil Justice Reform Project.
The report includes recommendations relating to 81 substantive areas of law. The recommendations included changes to the civil court rules for the Superior Court of Justice and the Ontario Court of Appeal (the Rules of Civil Procedure). Recommendations were also made to change several statutes, introduce best practices for the legal profession and to improve judicial scheduling practices.
In early 2008, the Attorney General travelled across Ontario to consult with judges, lawyers and other interested parties about the report.
The recommendations in the report were considered by the Civil Rules Committee. This Committee, comprised of judges, lawyers and Ministry of the Attorney General representatives, has the authority under the Courts of Justice Act to make the civil court rules, subject to the approval of the Attorney General.
On December 11, 2008, changes to the Rules of Civil Procedure were made pursuant to Ontario Regulation 438/08. The regulation was published in the Ontario Gazette on December 27, 2008. Further amendments to the Rules of Civil Procedure were made on October 16, 2009 through Ontario Regulation 394/09.
The changes include reforms to dozens of court rules. This document provides an overview of the main changes to the rules.
The reforms to the discovery rules include:
1. Scope of Discovery
The scope of discovery has been narrowed in the new civil rules. The "semblance of relevance" test has been replaced with a stricter test of "relevance". The phrase "relating to any matter in issue" has been changed to "relevant to any matter in issue" (see rules 30, 31 and 76).
This reform provides a clear signal to the bar that restraint should be exercised in the discovery process. It strengthens the objective that discovery be conducted with due regard to cost and efficiency. The effects of this reform will be felt by those who abuse the discovery process or engage in areas of inquiry that could not reasonably be considered necessary.
2. Duration of Oral Examinations for Discovery
The duration for oral examinations for discovery has been limited to a maximum of 7 hours per party. The 7 hours of discovery applies regardless of the number of parties or other persons to be examined. Where more than 7 hours is required, the parties can consent to more time or seek a court order for more time.
The test to obtain leave for more time on discovery includes consideration of:
- amount of money in issue
- complexity of issues
- amount of time that ought reasonably to be required
- financial position of each party
- party's conduct
- interests of Justice
This reform limits the time available for discovery, which will save a litigant time and money. These time limits may avoid litigants abandoning their claims or accepting less than adequate settlement for fear of the costs associated with discovery.
3. Proportionality in Discovery
The civil rule reforms require proportionality to be considered on all motions relating to discovery (rule 29.2.03). Discovery motions, also known as "refusals motions", address whether a person should answer a question posed on an examination for discovery or whether a person should produce a document. On a discovery motion, parties can now argue that the court should consider:
- the time, expense, or undue prejudice caused to answer a question or produce a document
- whether answering the question or producing the document would interfere with progress of action
- whether the information is readily available from another source
- whether any order would result in the excessive production of documents.
The court will continue to consider relevance and privilege and will also be able to consider the principles of proportionality when determining whether to require that a question be answered or a document produced.
4. Discovery Plan
The new civil rules require parties to agree to a discovery plan before they can obtain evidence by discovery of documents, examination for discovery, inspection of property, medical examination or written questions (rule 29.1).
The rules include sanctions for failure to agree to plan, including the court refusing to grant relief on a discovery motion, and/or imposing costs consequences (rule 29.1.05).
Parties must agree on a discovery plan the earlier of 60 days after pleadings close, or such longer period as agreed, and before the parties start to obtain evidence on discovery (rule 29.1.03(2)).
The discovery plan must be in writing and must set out:
- the scope of discovery
- dates for exchange of affidavits of documents
- how and when documents will be produced
- who will be examined and when, and the duration of the examination (rule 29.1.03(3))
In preparing the plan, parties must consider the Sedona Canada principles regarding electronic discovery (rule 29.1.03(4)). These principles include:
- Discovery steps should be proportionate. Parties should consider the nature of litigation; relevance of electronic evidence; importance to adjudication; and the cost and delay that may be imposed to deal with electronic documents.
- Parties should meet and confer as soon as possible regarding identification, preservation, collection and production of electronic documents.
- Parties should be prepared to disclose all relevant electronic documents.
- Parties should agree as early as possible on the format in which electronic information will be produced.
In determining the degree of detail required in a discovery plan or discovery agreement, the principle of proportionality should be considered. In some cases, such as those involving a limited number of documents or a small dollar value, it may not be appropriate to enter into a detailed discovery agreement. One option would be for counsel, following a meet and confer session, to send a letter confirming the discovery plan. For more information visit:
5. Examinations of Corporate Representatives or Employees
The new rules provide that before making an order that multiple officers, directors or partners be examined, the court must be satisfied that satisfactory answers could not be obtained from only one person and that examining more than one person would likely expedite the action (rule 31.03(4)).
For more information, see the flowchart: Discovery.
The reforms to the pre-trial rules include:
1. Application of Pre-trial rule
Pre-trial conferences are now required in all actions unless the court orders otherwise.
In an application, a pre-trial conference may be ordered by the court.
2. Purpose of Pre-trial
The purpose of a pre-trial conference is clarified under the new rules. A pre-trial provides an opportunity for issues to be settled without a hearing and allows parties to obtain orders or directions to assist with disposition of the proceeding (rule 50.01).
At a pre-trial, the court is to consider the possibility of settlement, simplification of issues, admissions, liability, damages, trial duration, fixing a trial date and court-appointed experts.
In addition, the court is now to consider the number of experts and other witnesses that may be called by a party and dates for service of experts' reports (rule 50.06) (note: expert reports are now required to be served in advance of a pre-trial).
3. Scheduling a Pre-trial
Within 180 days of an action being set down for trial, the parties must schedule with the Registrar a date and time for the pre-trial which is acceptable for all parties.
If the parties do not schedule a pre-trial within 180 days of the set down, the Registrar will schedule a pre-trial date (unless there is any earlier court Order which provides otherwise).
4. Documents and Attendance
A pre-trial conference brief with stipulated contents must be filed five days before the pre-trial (rule 50.04). All documents intended to be used at the trial, such as medical or experts' reports, must be provided at the pre-trial (rule 50.11). Lawyers must attend the pre-trial, and parties must participate by personal attendance or via telephone or video conference if undue travel time or expense would be required for a personal attendance (rule 50.05).
5. Orders or Directions of the Court
Where a matter does not settle at the pre-trial, a judicial official can establish a timetable and fix a date for a trial, order a case conference from rule 77 proceedings, and make other case management orders (rule 50.07). These orders include orders relating to discovery timelines, limits on discovery and requiring opposing experts to meet and prepare a joint report.
For more information, see the flowchart: Pre-trials.
The reforms to the Simplified Procedure rules include:
1. Monetary Limit for Simplified Procedure Actions
The monetary limit for rule 76 matters has increased from $50,000 to $100,000.
2. Discovery in Simplified Procedure Actions
Oral examinations for discovery are now available in Simplified Procedure actions. Discovery is limited to two hours in total per party, regardless of the number of parties to be examined.
3. Deadline to Set Down for Trial
To set a Simplified Procedure matter down for trial, the Plaintiff must file a Notice of Readiness for Pre-trial. This Notice must now be served and filed within 180 days of the filing of the first defence.
The documents to be filed on a pre-trial under the Simplified Procedure are not identical to those required under the pre-trial rule for ordinary procedure matters (new rule 50.04). For the list of documents to be filed on a Simplified Procedure pre-trial see rule 76.09 and for a summary of timelines and the flowchart: Simplified Procedure under rule 76.
4. Summary Trials
Where the matter is proceeding by summary trial, examinations in-chief are now available. These examinations in-chief are limited to 10 minutes.
5. Revocation of Certain Special Processes under Rule 76
The special summary judgment rule under rule 76 has been revoked and replaced by the new ordinary procedure rule for summary judgment (rule 20).
The special dismissal rules under rule 76 have been revoked and replaced by the new ordinary procedure rules for dismissals (new rules 48.14 and 48.15). For more information on dismissals, see the flowcharts: Dismissals of Defended Actions and Dismissal of Undefended Action.
The reforms to the expert evidence rules include:
1. Duty of Expert
A new rule outlines the duty of an expert to assist court. An expert is to be fair, objective and non-partisan. The expert is to provide opinion evidence that is related only to matters that are within the expert's area of expertise. The expert is to provide such additional assistance as the court may reasonably require to determine a matter in issue. The expert's duty prevails over any obligation owed by the expert to the party by whom he or she is engaged (rule 4.1.01).
2. Content of Expert Reports
The rules have been amended to require expert reports to include specific information:
- expert's name, address, area of expertise
- instructions provided to expert regarding the proceeding
- expert's qualifications, employment, education
- nature of opinion sought and issue it relates to
- reasons for the opinion (research, assumptions, documents reviewed) (rule 53.03(2.1))
An expert must now certify, in the expert's report, that he or she understands this duty to be fair, objective and non-partisan (using Form 53).
3. Service of Expert Reports
The rules require expert reports to be exchanged earlier than under the old rules. The timelines for service of expert reports are now attached to the time of pre-trial rather than the time of trial.
A party who wishes to call an expert at trial must serve a copy of the expert's report at least 90 days before pre-trial (rule 53.03(1)). The responding expert report must be served at least 60 days before pre-trial (rule 53.03(2)).
Within 60 days of an action being set down for trial, the parties must agree to a schedule setting out the dates for service of expert reports to comply with above timelines (rule 53.03(2.2)).
If expert reports are intended to be used at the trial and may be of assistance to the court in achieving the purposes of a pre-trial, the reports are to be provided to the court at a pre-trial (rule 50.11).
4. Expert Meetings
The court may now order experts to meet to identify areas of agreement/disagreement and to prepare a joint statement with areas of agreement/disagreement. This can happen at:
- a pre-trial, if the matter does not settle (rule 50.07(1)(c));
- a summary judgment motion, if the action is proceeding to trial (rule 20.05(2)(k)).
5. Number of Experts
The court may consider the number of experts at certain stages in the proceeding. For instance, at a pre-trial a judge must consider the number of experts and dates for service of expert reports (rule 50.06(8)). The number of experts is also to be considered in deciding whether or not to assign a case to case management (rule 77.05).
For more information, see the flowchart: Experts.
SERVICE AND FILING TIMELINES
Generally, the new rules require the applicant or moving party material to be served and filed 7 days before hearing and the responding party materials to be served and filed 4 days before the hearing. The motion and application confirmation forms must be filed 3 days before the hearing.
The changes to the civil rules relating to service and filing timelines are summarized in the chart below.
Rules of Civil Procedure
Timelines changed by Ontario Regulations 438/08 and 393/09
|Rules of Civil Procedure||Action||Document||Timeline prior to January 1, 2010(# days before hearing)||New timeline effective Jan. 1, 2010 (# days before hearing)|
|20.03(2)||Serve||Moving Party's Factum||4||7|
|20.03(3)||Serve||Responding Party's Factum||2||4|
|20.03 (4)||File||Factums (responding)||2||4|
|21.03(2)||Serve||Moving Party's Factum||4||7|
|21.03(3)||Serve||Responding Party's Factum||2||4|
|22.02(2)||Serve||Moving Party's Factum||4||7|
|22.02(3)||Serve||Responding Party's Factum||2||4|
|29.1.03(2)(b) 30.03(1)||Serve||Affidavit of documents||10 days after close of pleadings||as agreed in a discovery plan|
|34.18(2)||File||Transcript for Court Use||2||4|
|37.07(6)||Serve||Notice of motion||4||7|
|37.08(1)||File||Notice of motion||3||7|
|37.10 (9)||File||Moving factum, if any||2||7|
|37.10(9)||File||Responding factum, if any||2||4|
|37.10(1)||Serve & file||Motion record||3||7|
|37.10(3)||Serve & file||Responding record||2||4|
|37.10(7)||Serve||Moving party's factum||4||7|
|37.10(10)(a)||Serve & file||Refusals and undertakings chart||3||7|
|37.10(10)(b)||Serve & file||Response to refusals and undertakings chart||2||4|
|37.10.1(1)(b)||File||Motion confirmation form||2||3|
|38.06(4)||File||Notice of application||4||7|
|38.09(1)(a)||Serve||Application record and factum||4||7|
|38.09(1)(b)||File||Application record and factum||2||7|
|38.09 (3, 3.1, 3.2)||Serve & file||Respondent's factum and record, if any||2||4|
|38.09.1(1)(b)||File||Application confirmation form||2||3|
|39.01(2)||Serve & file||Affidavit||2||7|
|39.01(3)||Serve & File||Affidavit||2||4|
|40.04(2)||Serve||Moving Party's Factum||4||7|
|40.04(3)||Serve||Responding Party's Factum||2||4|
|42.02(3)||Serve||Moving Party's Factum||4||7|
|42.02(4)||Serve||Responding Party's Factum||2||4|
|48.14(10)||File||Timetable for Status Hearing in Writing||n/a||7|
|50.04||Serve & file||Pre-Trial Conference Brief||n/a||5|
|53.03(1)||Serve||Expert's Report||90 days before trial||90 days before pre-trial|
|53.03(2)||Serve||Responding Expert's Report||60 days before trial||60 days before pre-trial|
|62.01(5)||File||Notice of Appeal (appeal under r. 62)||4||7|
|62.01(7)||Serve & file||Appeal record & Appellant's factum||4||7|
|62.01(8)||Serve & file||Respondent's factum||2||4|
|62.02 (6.1)||Serve||Moving party's factum (motion for leave to appeal under r. 62)||4||7|
|62.02(6.2)||Serve||Respondent's factum (motion for leave to appeal under r. 62)||2||4|
|62.02 (6.3)||File||Moving factum, if any||2||7|
|62.02 (6.3)||File||Responding factum, if any||2||4|
Rules 77 and 78 are revoked and replaced with one single case management rule which will apply to Toronto, Windsor and Ottawa (rule 77). As of January 1, 2010, every matter proceeding under the former rules 77 and 78 will continue under new rule 77 and all orders, directions and timetables will remain in force.A case is no longer automatically subject to case management under rule 77. A case may be assigned to case management under rule 77 by a court order: 1) on consent at any time or 2) after the first defence is filed on the court's initiative or by request or motion. There is a list of criteria to consider in deciding whether to assign a case to case management (rule 77.05).
The purpose of the new rule 77 is to provide case management only for those cases for which the court determines there is a need.
2. Exempted Cases
The current exemptions to case management under rule 77 continue to apply (proceedings under rules 74, 75, 76, 64 and Construction Lien Act, Bankruptcy and Insolvency Act).
The rules relating to settlement conferences and trial management conferences have been revoked. Instead, the new mandatory pre-trial rule (rule 50.02) will apply to all actions, including cases under rule 77.
4. No "Tracks"
There are no longer different tracks (the standard and fast track options have been removed).
5. No supporting materials for motions
Rule 77 motions no longer require Form 77C (motion forms).
The motion may be made with or without supporting material or a motion record.
The motion may be made by attendance, in writing, by fax or under r. 1.08 (telephone and video conferences).
6. Regions other than Toronto, Windsor and Ottawa
For jurisdictions other than Toronto, Windsor and Ottawa, rule 37.15 remains with added powers to give such directions and procedural orders as are necessary to promote the timely and least expensive disposition.
Further information, including the full Practice Direction is available at Superior Court of Justice under Practice Directions and Administrative Advisories.
Mandatory mediation under rule 24.1 will continue to apply in Toronto, Windsor and Ottawa only. It will no longer be tied to case management under rules 77 and 78. Rule 24.1 will automatically apply to simplified procedure matters under rule 76.
2. Deadline for Mediation Session
The mediation timelines have been extended and offer the parties more flexibility:
- A mediation session must now be held within 180 days after the first defence is filed, unless a court orders otherwise (previously 90 days) or the parties consent to a date for the mediation.
- There is no longer a restriction on the time allowed to postpone a mediation session on consent (previously limited to 60 days). A mediation session must be held at the latest by the date of the set down for trial or, at the least, a Notice of Mediator's Name and Date of Session must be filed by the time of set down for trial. This essentially sets an outside time limit for mediation to be shortly before pre-trial.
3. Appointment of a Mediator by the Court
The court will now appoint a mediator where:
- The court does not receive within 180 days of the filing of the first defence, a mediator's report, a consent to extend the time for mediation, a court order to extend the time for mediation, a notice of mediator's name and date of session, notice of settlement, a court order exempting the case from mediation, or a letter establishing that the case falls within a class of cases exempted from mediation (rule 24.1.09 (6));
- The parties set the matter down for trial, but did not file, by the date ordered by the court or consented to for the mediation session, a mediator's report, a notice of mediator's name and date of session, notice of settlement, a court order exempting the case from mediation or a letter establishing that the case falls within a class of cases exempted from mediation (rule 24.1.09(6.1)).
For more information, see the Fact Sheet: Mandatory Mediation under rules 24.1 and 75.1 and the flowchart: Mandatory Mediation under rule 24.1 (Assignment of a mediator) and Mandatory Mediation under rule 24.1 (Assignment of a mediator after set down for trial).
Further information, including the full Practice Direction is available at Superior Court of Justice under Practice Directions and Administrative Advisories.
The summary judgment test of "no genuine issue for trial" has been replaced with "no genuine issue requiring a trial" (rule 20.04(2)).
2. Weighing Evidence
A judge may now weigh evidence, evaluate credibility and draw inferences from the evidence, and can order oral evidence (mini-trial) with or without time limits (rule 20.04(2.1)).
3. Orders for Direction
Where a trial is necessary, the court may make an order for directions. These orders will allow the court to impose deadlines for the exchange of affidavit of documents, deadlines for motions, require a statement of agreed facts, establish a discovery plan, amend a discovery plan, impose time limits on the oral examination of a witness at trial, require a summary of an opening statement, require a summary of anticipated witness evidence, require opposing experts to meet and confer to narrow the issues and prepare a joint statement (rule 20.05(2)).
The presumption of substantial indemnity costs against an unsuccessful moving party in a summary judgment motion has been eliminated. The court may now order substantial indemnity costs where a party acted unreasonably in bad faith for the purpose of delay (rule 20.06).
5. Summary Judgment in Simplified Procedure Matters
The special rule for summary judgment in rule 76 (simplified procedure) matters was revoked. Rule 20 will now apply to simplified procedure matters.
DISMISSALS & STATUS HEARINGS
1. Automatic dismissal of undefended actions
New rule 48.15 allows a Registrar to automatically dismiss an undefended action where certain steps are not taken to move the action forward. This rule applies to all actions, including actions under case management (rule 77), simplified procedure (rule 76) and ordinary procedure actions.
This concept is "new" for ordinary procedure actions. Similar rules previously existed for case managed actions (in Toronto, Ottawa and Windsor) and simplified procedure actions (old rules 76.06(1), 77.08(1) and 78.06(1)).
A defence must be filed within 180 days of the issuance of the claim, or the action must be disposed of by order or set down for trial. If one of these steps do not occur, then the action can be automatically dismissed by the Registrar. Before the Registrar will sign a dismissal order (Form 48F - PDF) she or he will give the parties 45 days notice (Form 48E - PDF) that the action will be dismissed.
Transition rules have been developed to cover certain actions which were started before January 1, 2010 (ordinary procedure actions and rule 78 actions; see new rule rule 48.15(6)(7)).
2. Automatic dismissal of defended actions
A Registrar can automatically dismiss a defended action where certain steps are not taken to move the action forward (rule 48.14). Rule 48.14 now applies to all actions, including simplified procedure actions (replaces old rule 76.06(2)).
Rule 48.14 requires the action to be placed on the trial list or terminated within two years of the filing of the first defence. If this does not happen, the parties will receive a status notice (Form 48C.1 - PDF) advising that unless certain steps are taken within 90 days, the matter will be dismissed. To avoid dismissal, the parties must set the matter down for trial, obtain a court order to prevent the dismissal, or file documents for a status hearing in writing.
Rule 48.14 also now requires that where an action was placed on the trial list but subsequently struck off the trial list, the parties have 180 days to place the action back on the trial list. If this does not happen, the parties will receive a status notice (Form 48C.2 - PDF) advising that unless certain steps are taken within 90 days, the matter will be dismissed. To avoid dismissal, the parties must set the matter down for trial, obtain a court order to prevent the dismissal, or file documents for a status hearing in writing.
Principle of Proportionality
The rules now provide as an overarching principle of interpretation, that the court shall make orders and give directions that are proportionate to the importance and complexity of the issues and the amount involved (rule 1.04(1.1)).
Separate hearings are now allowed on one or more issues, with the consent of the parties (for example liability hearing and damages hearing) (rule 6.1.01).
Transfer of Proceedings
Under rule 13.1.02(3.1) a motion to change venue may now be brought and heard in the county to which the transfer is sought (rule 13.1.02(3.1)).
Want more information?
Visit the following websites:
Ministry of the Attorney General Backgrounder re Civil Justice Reforms (December 2008)
Ministry of the Attorney General News Release re Civil Justice Reforms (December 2008)
Civil Justice Reform Project
Rules of Civil Procedure
Ontario Regulation 438/08 (regulation amending the Rules of Civil Procedure, in effect January 1, 2010)
Ontario Regulation 394/09 (regulation amending the Rules of Civil Procedure, in effect January 1, 2010)