Williams HR Law LLP

UPCOMING CHANGES TO ONTARIO COURT PROCEDURES AND THE POTENTIAL IMPLICATIONS FOR EMPLOYERS

November 7, 2019

On January 1, 2020 the monetary limits for claims proceeding in Ontario’s Small Claims Court, and under Rule 76 simplified procedure of the Rules of Civil Procedure (the “Rules”) in the Superior Court of Justice will be increased.

These changes are being made by way of amendments to the Rules and O. Reg 626/00: Small Claims Court Jurisdiction, both of which are regulations under the Courts of Justice Act, and will also include additional changes to the rules of simplified procedure. These changes are intended to increase the number of claims brought in Small Claims Court and under simplified procedure to conserve judicial resources and increase access to justice in Ontario, as these processes are generally less formalistic, time-consuming, and costly than proceeding under ordinary procedure in the Superior Court of Justice. These changes are particularly noteworthy for employers, as they will most likely result in more claims of wrongful dismissal being brought within the jurisdiction of the Small Claims Court and the rules of simplified procedure.

Small Claims Court

As part of the changes, the monetary limit for civil claims that may proceed in the Small Claims Court is being increased from $25,000 to $35,000, meaning that the Small Claims Court will now have jurisdiction to hear any civil action where the total amount claimed does not exceed $35,000 less interest and costs.

In addition to the jurisdictional limits, the monetary limit on final orders made in Small Claims Court that may be appealed to the Divisional Court will be increased from $2,500 to $3,500, meaning that final orders of between $2,500 and $3,500 will no longer be appealable to the Divisional Court.

Simplified Procedure

The monetary limit for simplified procedure is also being increased from $100,000 to $200,000. As a result, a greater number of claims will now proceed under the expedited processes provided under the rules of simplified procedure. There are a number of additional changes to the rules of simplified procedure that will also come into effect on January 1, 2020.

Examinations for discovery for claims under simplified procedure will now be limited to three hours—an increase from the existing two-hour limit under the Rules.

Parties to an action under simplified procedure will now be required to schedule a pre-trial conference within 180 days of the action being set down for trial, and all parties will be required to agree on a trial management plan at least 30 days before the pre-trial conference, and to file the plan with the court at least five days before the pre-trial conference. The trial management plan shall include a list of every witness whose evidence a party intends to adduce at trial, and a division of time between the parties that sets out the allotted time for the presentation of evidence, examination of witnesses and other matters at trial. The judge or master hearing the pre-trial conference is required to fix trial dates, the number of permitted witnesses, and a schedule for exchanging witness affidavits, including any outstanding expert affidavits.

All trials under simplified procedure will now be required to proceed by way of summary trial and will be limited to five days. Ordinary trials will no longer be available in actions brought under simplified procedure. A number of amendments have been made to the summary trial procedure, including:

  • allowing for opening arguments and removing the time limit on closing arguments;
  • expressly permitting the reading-in of evidence given on examination for discovery by an adverse party; and
  • eliminating existing time limits for cross-examination and re-examination of witnesses.

Jury trials will no longer be permitted for actions under simplified procedure, with certain exceptions. Actions within the limits of the simplified procedure can still be tried with a jury if the action involves a claim for slander, libel, malicious arrest, malicious prosecution, or false imprisonment, however such claims must be continued under the ordinary procedure.

Finally, awards for costs and disbursements in claims under simplified procedure will now be capped. Subject to certain exceptions, parties to an action under simplified procedure will now only be permitted to recover a maximum of $50,000 in legal costs, and $25,000 in disbursements (excluding HST).

Takeaways

We predict that the increase to the monetary limits for the Small Claims Court and actions under simplified procedure should have the effect of conserving judicial resources and increasing access to justice in most cases, as intended, by allowing more claims to be resolved under procedures that are less formal, costly, and time consuming.

However, it is worth noting that the increased monetary limits under the rules of simplified procedure may have the effect of decreasing the number of actions resolved through motions for summary judgment, which can be used in civil actions to resolve disputes short of trial where there are not substantial factual disputes between the parties. Employers should note that motions for summary judgment are often brought by parties to resolve claims of wrongful dismissal where the issues in dispute are not so complex that a trial is required. Parties may be discouraged from bringing a motion for summary judgment in actions under simplified procedure because the Rules prohibit parties from cross-examining a deponent on an affidavit served by a party who is adverse in interest on a motion for summary judgment. The inability to cross-examine deponents on affidavits served by the opposing party means that parties may be unable to challenge and resolve any discrepancies in affidavit evidence provided prior to the hearing of the motion.

The Ontario Court of Appeal has addressed the procedural unfairness that may arise where new evidence is raised in an affidavit and the opposing party is not afforded the opportunity to cross-examine the deponent on the affidavit about the new evidence. In Singh v Concept Plastics Limited, the Court overturned a motion judge’s decision to grant two motions for summary judgment in two actions for wrongful dismissal brought under the rules of simplified procedure. The Court held that the motion judge failed to assess the lack of fairness to the employer in deciding the matter by summary judgment, as the employer was not able to cross-examine the former employees on evidence put forward by affidavit on issues that were critical to the case.

Accordingly, bringing a motion for summary judgment under simplified procedure can be problematic as factual disputes may arise from the affidavits filed on the motion, which causes unfairness to the opposing party who is unable to cross-examine the deponent regarding those disputes. Where such factual disputes arise, a motion for summary judgement is less likely to be granted by the court, and as a result, a trial may be required to resolve the action, which is generally more expensive and takes much longer to resolve.

As indicated above, employers should be aware that the changes will likely have an impact on the strategy employed in civil actions brought within the new limits of the Small Claims Court, and the rules of Simplified Procedure, including claims of wrongful dismissal. While these changes will likely have the effect in reducing the time and cost of many civil actions in Ontario, only time will tell how the recent changes to the rules of simplified procedure will impact the use of motions for summary judgment as a means for resolving disputes short of a trial.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.

 

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