On June 1, 2011 the Canadian Institute of Actuaries (CIA) submitted their observations and recommendations to the Civil Rules Committee with respect to the Committee’s review of rules 52.09 and 53.10 of the Rules of Civil Procedure (“the Rules”). The CIA reviewed these rules from the perspective of today’s economy − a low interest rate environment.
Rule 52.09(1) lays out how the discount rate is to be calculated for awards for future pecuniary damages in order to account for investment and price inflation rates. The CIA pointed out that the prescribed interest rate in Ontario for the first 15 years is lower than any other province or territory where discount rates are prescribed for this purpose. As a result, since interest rates are at historically low levels, a plaintiff will receive a higher settlement in Ontario than a plaintiff in another province or territory.
Rule 52.09(1) provides for a negative adjustment of 1%. This negative adjustment is a result of a belief in 2000 that rates of return for real return bonds were higher than the true underlying expected real rate of return. The CIA believes that this may not be a valid justification in today’s economic environment but noted that this negative adjustment could serve a valid public policy objective by providing a margin for adverse investment contingencies.
The CIA noted that there is a potential for misinterpretation of rule 53.09(1) and recommended that the wording be altered slightly to clarify that there is not only one discount rate to be applied to one particular loss under 53.09(1) and to make it clear that the rate prescribed by 53.09(1)(a) is to be used in discounting all losses.
Lastly with respect to rule 53.09(1), the CIA suggested that the Committee consider prescribing a nominal discount rate that could be used in situations when a real discount rate would be inappropriate.
Rule 53.10 sets the prejudgment interest rate for non-pecuniary damages at 5% per year. The CIA acknowledges that this rate is reasonable from a public policy perspective as it motivates settlement and compensates successful plaintiffs for delays in resolution. However, the CIA suggests that a floating rate based on yields on GICs with an adjustment may be a consideration. They recognize however that this would largely increase the complexity.
A weekly update of cases pertaining to the practice of insurance defence.
Showing posts with label 2010 Rule Changes. Show all posts
Showing posts with label 2010 Rule Changes. Show all posts
September 22, 2011
September 12, 2011
Summary Judgment Rule
(Canada) Attorney General v. Ranger, 2011 ON SC 3196
While we wait for the Ontario Court of Appeal to clarify the scope of the new summary judgment rule, the Honourable Justice Power has recently shown a preference for the interpretation of the new Rule 20 that expands the power of the court in making findings of fact.
Various Superior Court of Justice judges have interpreted the changes to Rule 2o differently, some suggesting that it does not give a motions judge the power to make findings of fact for the purpose of deciding an action on the basis of evidence while others (now including Power, J.) suggest that it does allow a motions judge to make findings of fact.
The ultimate resolution of these diverging points of view by the Ontario Court of Appeal will have a significant impact on insurance defence litigation. Often defendants are faced with having to decide whether to go through an expensive trial or just make a "smaller payment" to settle a claim, even where a defendant is fairly sure that there should not be a finding of liability. Given the extraordinary cost of trials, defendants often unfortunately decide to settle even where they should not if they can settle for a small sum and avoid the cost and risk of trial.
The recent decision of Power, J. in (Canada) Attorney General v. Ranger, 2011 ON SC 3196, granted summary judgment to homeowners who were being sued under the Occupier's Liability Act for injuries sustained by a postal worker who had slipped and fallen on ice and snow while delivering mail to their home. The evidence of the homeowners at their examination for discovery was that they had a routine whereby they shoveled snow and salted icy areas when needed. Power, J. found that no further evidence could be put before a trial judge and therefore it was not necessary to proceed to trial. Power, J. then dismissed the action in its entirety.
Defence lawyers and insurers may yet find the new summary judgment rule to be a helpful tool in addressing claims without merit.
While we wait for the Ontario Court of Appeal to clarify the scope of the new summary judgment rule, the Honourable Justice Power has recently shown a preference for the interpretation of the new Rule 20 that expands the power of the court in making findings of fact.
Various Superior Court of Justice judges have interpreted the changes to Rule 2o differently, some suggesting that it does not give a motions judge the power to make findings of fact for the purpose of deciding an action on the basis of evidence while others (now including Power, J.) suggest that it does allow a motions judge to make findings of fact.
The ultimate resolution of these diverging points of view by the Ontario Court of Appeal will have a significant impact on insurance defence litigation. Often defendants are faced with having to decide whether to go through an expensive trial or just make a "smaller payment" to settle a claim, even where a defendant is fairly sure that there should not be a finding of liability. Given the extraordinary cost of trials, defendants often unfortunately decide to settle even where they should not if they can settle for a small sum and avoid the cost and risk of trial.
The recent decision of Power, J. in (Canada) Attorney General v. Ranger, 2011 ON SC 3196, granted summary judgment to homeowners who were being sued under the Occupier's Liability Act for injuries sustained by a postal worker who had slipped and fallen on ice and snow while delivering mail to their home. The evidence of the homeowners at their examination for discovery was that they had a routine whereby they shoveled snow and salted icy areas when needed. Power, J. found that no further evidence could be put before a trial judge and therefore it was not necessary to proceed to trial. Power, J. then dismissed the action in its entirety.
Defence lawyers and insurers may yet find the new summary judgment rule to be a helpful tool in addressing claims without merit.
March 9, 2011
Proportionality in Discovery
Master Short recently conducted an exhaustive review of the principles of proportionality in discovery. In Warman v. National Post (2011), 103 O.R. (3d) 174 (S.C.J.), the defendant brought a motion seeking production of a mirror copy of the plaintiff’s computer hard drive. The action was a libel action brought under the Simplified Procedure.
Master Short held that the new rules changing the test from “relating to” to “relevant to” a matter in issue signal a shift away from the broad and liberal discovery practice that has existed in Ontario. The default rule should start with proportionality and a recognition that not all conceivably relevant facts are discoverable in every case. Master Short adopts an eight factor proportionality test for e-discovery used in an American case (Rowe Entertainment v. William Morris):
1. The specificity of the discovery requests;
2. The likelihood of discovering critical information;
3. The availability of such information from other sources;
4. The purposes for which the responding party maintains the requested data;
5. The relative benefit to the parties of obtaining the information;
6. The total cost associated with production;
7. The relative ability of each party to control costs and its incentive to do so;
8. The resources available to each party.
Master Short held that although relevancy should remain a threshold requirement, proportionality should replace relevancy as the most important principle guiding discovery.
This decision will no doubt garner attention as a guideline for discovery. It will be interesting to see if the eight factors become the new standard for discovery in general or limited to e-discovery.
Master Short held that the new rules changing the test from “relating to” to “relevant to” a matter in issue signal a shift away from the broad and liberal discovery practice that has existed in Ontario. The default rule should start with proportionality and a recognition that not all conceivably relevant facts are discoverable in every case. Master Short adopts an eight factor proportionality test for e-discovery used in an American case (Rowe Entertainment v. William Morris):
1. The specificity of the discovery requests;
2. The likelihood of discovering critical information;
3. The availability of such information from other sources;
4. The purposes for which the responding party maintains the requested data;
5. The relative benefit to the parties of obtaining the information;
6. The total cost associated with production;
7. The relative ability of each party to control costs and its incentive to do so;
8. The resources available to each party.
Master Short held that although relevancy should remain a threshold requirement, proportionality should replace relevancy as the most important principle guiding discovery.
This decision will no doubt garner attention as a guideline for discovery. It will be interesting to see if the eight factors become the new standard for discovery in general or limited to e-discovery.
October 28, 2010
Tort Defendant Not Permitted to Call Evidence from Plaintiff's Accident Benefits Assessors
Beasley and Scott v. Barrand, 2010 ONSC 2095 (S.C.J.)
This case involves the interpretation of the new requirements for experts pursuant to Rule 53.
The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.
Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:
I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.
This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.
This case involves the interpretation of the new requirements for experts pursuant to Rule 53.
The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.
Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:
I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.
This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.
June 16, 2010
Rule 31.05.01 - Extending the Seven Hour Discovery Rule
Those of you interested in the interpretation of the new rule 31.05.01, which provides a seven hour total limit on discovery, may wish to review Osprey Capital Partners v. Gennium Pharma Inc., [2010] O.J. No. 1721 (S.C.J).
Master Glustein granted leave to the plaintiff to exceed the seven hour limit and permitted it seven hours for each defendant.
Some of the factors considered were:
1. The pleadings claimed $1.5 million in damages;
2. A review of the pleadings revealed complex issues of fact and law; and
3. There would be unfairness if the defendants each had seven hours to examine the plaintiff (for a total of 21 hours) and the plaintiff was limited to seven, or approximately two hours for each defendant.
Master Glustein also held that it is not necessary for counsel to attempt examinations prior to bringing a motion to extend time. In addition, the Master did not agree that counsel must identify key documents and issues in the discovery as part of the discovery plan.
Master Glustein granted leave to the plaintiff to exceed the seven hour limit and permitted it seven hours for each defendant.
Some of the factors considered were:
1. The pleadings claimed $1.5 million in damages;
2. A review of the pleadings revealed complex issues of fact and law; and
3. There would be unfairness if the defendants each had seven hours to examine the plaintiff (for a total of 21 hours) and the plaintiff was limited to seven, or approximately two hours for each defendant.
Master Glustein also held that it is not necessary for counsel to attempt examinations prior to bringing a motion to extend time. In addition, the Master did not agree that counsel must identify key documents and issues in the discovery as part of the discovery plan.
May 3, 2010
7 Hour Discovery Rule Interpreted
Justice Templeton has recently addressed the new so-called "7 Hour Rule" that limits examinations for discovery, J. & P. Leveque Bros. v. Ontario , 2010 ONSC 2312.
The issue on the motion was whether leave should be granted to the plaintiff to conduct an examination for discovery of the defendants for a period of time in excess of seven hours.
At paragraph 16 of her decision, Templeton J. writes: The interests of justice do not require that the concept of effective representation trump the concept of cost-efficient and/or expeditious justice or vice versa; but they do require that these factors be balanced both jointly and severally by all participants in the process.
She also adds at paragraph 20: I am also of the view that in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances.
At a paragraph 21: In cases involving multiple parties, I would expect the excess of one hour to be deducted from the time available for that same party to examine another party to the litigation. In other words, to ensure that effective and cost-efficient justice is realized, counsel must adhere to their agreement with respect to the total length of the examinations but where there is more than one party, a leeway of one hour past the allotted time for the examination of one of the parties would not be unreasonable provided it is recovered from the examination of another party. This
flexibility allows counsel to be effective and to prioritize but at the same time cost-efficient in
the overall process.
In conclusion she granted the plaintiff 19 hours to conduct the examination for discovery since it was a multi-party action involving a number of different issues.
The issue on the motion was whether leave should be granted to the plaintiff to conduct an examination for discovery of the defendants for a period of time in excess of seven hours.
At paragraph 16 of her decision, Templeton J. writes: The interests of justice do not require that the concept of effective representation trump the concept of cost-efficient and/or expeditious justice or vice versa; but they do require that these factors be balanced both jointly and severally by all participants in the process.
She also adds at paragraph 20: I am also of the view that in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances.
At a paragraph 21: In cases involving multiple parties, I would expect the excess of one hour to be deducted from the time available for that same party to examine another party to the litigation. In other words, to ensure that effective and cost-efficient justice is realized, counsel must adhere to their agreement with respect to the total length of the examinations but where there is more than one party, a leeway of one hour past the allotted time for the examination of one of the parties would not be unreasonable provided it is recovered from the examination of another party. This
flexibility allows counsel to be effective and to prioritize but at the same time cost-efficient in
the overall process.
In conclusion she granted the plaintiff 19 hours to conduct the examination for discovery since it was a multi-party action involving a number of different issues.
February 2, 2010
New Summary Judgment Rule Results in Dismissal of Claim
Langille v. Toronto (City), 2010 ONSC 443 (CanLII), is a new Rule 20 motion in which the Court weighed evidence, evaluated credibility and drew reasonable inferences. The Court concluded that the City had suffered prejudice and that the plaintiff was without reasonable excuse. The Court then dismissed the plaintiff’s claim.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
January 6, 2010
Transition Issues with the new Rules
Thanks to a reader of our blog, Ted Key, for bringing this case to our attention: Onex Corporation et al. v. American Home Assurance et al., 2009 CanLII 72052 (Ont. S.C.J.).
This is the first decision we are aware of that addresses the inevitable transition issues that will arise from the new Rules of Civil Procedure that came into effect on January 1, 2010.
The plaintiffs, in an excess insurance case, filed a motion for summary judgment. The defendants then filed for directions to clarify and confirm that the current rules will apply when the summary judgment motion is argued.
The question decided is this: If a motion for summary judgment under rule 20 is filed in 2009 but heard in 2010, after the rule changes take effect, should the matter be heard under the old rule or the new rule?
The judge concluded that the motion should be heard under the new rule.
I'll leave you to read the decision for the details but it includes a helpful analysis of the current rule and lack of transition provisions.
Paragraph 8 of the Endorsement indicates: "In my view, if the legislature had intended that the old rule 20 would continue to apply to summary judgment motions filed before 2010 or that a general “transitional provision” was required, it could have said so. It chose not to do this. It follows, therefore, that the new summary judgment procedure is intended to take immediate effect as of January 1, 2010 and apply to all rule 20 matters before the court, whenever the motion was filed."
This is the first decision we are aware of that addresses the inevitable transition issues that will arise from the new Rules of Civil Procedure that came into effect on January 1, 2010.
The plaintiffs, in an excess insurance case, filed a motion for summary judgment. The defendants then filed for directions to clarify and confirm that the current rules will apply when the summary judgment motion is argued.
The question decided is this: If a motion for summary judgment under rule 20 is filed in 2009 but heard in 2010, after the rule changes take effect, should the matter be heard under the old rule or the new rule?
The judge concluded that the motion should be heard under the new rule.
I'll leave you to read the decision for the details but it includes a helpful analysis of the current rule and lack of transition provisions.
Paragraph 8 of the Endorsement indicates: "In my view, if the legislature had intended that the old rule 20 would continue to apply to summary judgment motions filed before 2010 or that a general “transitional provision” was required, it could have said so. It chose not to do this. It follows, therefore, that the new summary judgment procedure is intended to take immediate effect as of January 1, 2010 and apply to all rule 20 matters before the court, whenever the motion was filed."
December 9, 2009
Changes to the Rules of Civil Procedure - Part 6
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 6 of our review of the amendments.
A new rule has been introduced which imposes additional requirements on experts. Rule 4.1 requires experts to sign an acknowledgment agreeing that they have a duty to provide evidence that is:
a) fair, objective and non-partisan;
b) related only to matters within the expert’s expertise;
c) to provide the court with assistance it needs to determine a matter in issue.
Both plaintiffs and defendants have experts that they use and know have a particular slant. Whether this rule actually results in more balanced reports remains to be seen.
The acknowledgement of duty is contained in Form 53 and it must be attached to every expert report to be relied on at trial. A copy of form 53 can be found on the Ministry of the Attorney General website at:
http://www.ontariocourtforms.on.ca/english/civil/
In addition, expert must include additional information in their reports, such as the information relied on in preparing the report. This may open up an argument that the instructing letter should be disclosed. Counsel should therefore be cautious in what information is provided to the expert.
A new rule has been introduced which imposes additional requirements on experts. Rule 4.1 requires experts to sign an acknowledgment agreeing that they have a duty to provide evidence that is:
a) fair, objective and non-partisan;
b) related only to matters within the expert’s expertise;
c) to provide the court with assistance it needs to determine a matter in issue.
Both plaintiffs and defendants have experts that they use and know have a particular slant. Whether this rule actually results in more balanced reports remains to be seen.
The acknowledgement of duty is contained in Form 53 and it must be attached to every expert report to be relied on at trial. A copy of form 53 can be found on the Ministry of the Attorney General website at:
http://www.ontariocourtforms.on.ca/english/civil/
In addition, expert must include additional information in their reports, such as the information relied on in preparing the report. This may open up an argument that the instructing letter should be disclosed. Counsel should therefore be cautious in what information is provided to the expert.
December 2, 2009
Changes to the Rules of Civil Procedure - Part 5
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 5 of our review of the amendments.
Rule 20 governs summary judgment. The amendments to this rule are substantial and have the potential to make it a more valuable tool than it currently is. The changes to rule 20 will permit judges expansive powers; they will be able to weigh evidence, make inferences and evaluate credibility. Judges will also be able to hear oral evidence on a summary judgment motion to order to assist them in making decisions, rather than relying on affidavit evidence.
These changes have the potential to assist in disposing of claims at an early stage, rather than waiting until a full trial occurs, with its associated time and expense. What remains to be seen is whether judges are prepared to utilize the new rule to its full potential.
If a judges declines to grant summary judgment or grants summary judgment in part, judges have a wide variety of powers. One of the more interesting powers is the ability to order that each party's expert meet to discuss areas of agreement and disagreement. This power appears contradictory to the intent of the amendments, which focuses on reducing costs and increasing access to justice, as well as proportionality. Requiring experts to meet will increase costs to litigants and adds a level of administration because it requires coordination of the experts' schedules. Practically speaking, one would think that this would be an exceptional remedy due to the costs considerations and that where experts are diametrically opposed, there is no real use in having them try to persuade each other.
Another substantial change to summary judgment is that the costs consequences of a failed summary judgment motion have been relaxed. The current rule imposes substantial indemnity costs against the unsuccessful party; the new rule eliminates the presumption of substantial indemnity costs. The current rule has served as a deterrent to bringing summary judgment motions for fear of the costs consequences. The new rule may encourage its use as even if a party is not successful, the consequences are not as severe as in the past.
Rule 20 governs summary judgment. The amendments to this rule are substantial and have the potential to make it a more valuable tool than it currently is. The changes to rule 20 will permit judges expansive powers; they will be able to weigh evidence, make inferences and evaluate credibility. Judges will also be able to hear oral evidence on a summary judgment motion to order to assist them in making decisions, rather than relying on affidavit evidence.
These changes have the potential to assist in disposing of claims at an early stage, rather than waiting until a full trial occurs, with its associated time and expense. What remains to be seen is whether judges are prepared to utilize the new rule to its full potential.
If a judges declines to grant summary judgment or grants summary judgment in part, judges have a wide variety of powers. One of the more interesting powers is the ability to order that each party's expert meet to discuss areas of agreement and disagreement. This power appears contradictory to the intent of the amendments, which focuses on reducing costs and increasing access to justice, as well as proportionality. Requiring experts to meet will increase costs to litigants and adds a level of administration because it requires coordination of the experts' schedules. Practically speaking, one would think that this would be an exceptional remedy due to the costs considerations and that where experts are diametrically opposed, there is no real use in having them try to persuade each other.
Another substantial change to summary judgment is that the costs consequences of a failed summary judgment motion have been relaxed. The current rule imposes substantial indemnity costs against the unsuccessful party; the new rule eliminates the presumption of substantial indemnity costs. The current rule has served as a deterrent to bringing summary judgment motions for fear of the costs consequences. The new rule may encourage its use as even if a party is not successful, the consequences are not as severe as in the past.
November 18, 2009
Changes to the Rules of Civil Procedure - Part 4
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 4 of our review of the amendments.
A new rule has been introduced which limits the time for discovery to seven hours total, regardless of the number of parties to be examined. Parties may extend the time for discovery by consent, or if there is a dispute, a court may grant leave on a motion. There are both positives and negatives to this new rule. It may encourage counsel to be prepared for discovery and succinct in their questioning, and in many cases it is possible to complete discovery in only one day. There are some cases, however, where due to the number of parties or documents, or the complexity of the case it is not possible to complete discovery in only one day. The hope is that counsel will cooperate in such situations. Unfortunately there may be an increase in motions where disputes arise over this issue. I would not expect judges to look favourably upon having to adjudicate such procedural disputes and it may be that after a few initial decisions, counsel take a more practical approach.
Our previous post discussed r. 29.1, which requires parties to agree on a discovery plan. Where the length of discovery is likely to be an issue, it is a good idea to deal with this issue at that point to avoid later disagreements.
A new rule has been introduced which limits the time for discovery to seven hours total, regardless of the number of parties to be examined. Parties may extend the time for discovery by consent, or if there is a dispute, a court may grant leave on a motion. There are both positives and negatives to this new rule. It may encourage counsel to be prepared for discovery and succinct in their questioning, and in many cases it is possible to complete discovery in only one day. There are some cases, however, where due to the number of parties or documents, or the complexity of the case it is not possible to complete discovery in only one day. The hope is that counsel will cooperate in such situations. Unfortunately there may be an increase in motions where disputes arise over this issue. I would not expect judges to look favourably upon having to adjudicate such procedural disputes and it may be that after a few initial decisions, counsel take a more practical approach.
Our previous post discussed r. 29.1, which requires parties to agree on a discovery plan. Where the length of discovery is likely to be an issue, it is a good idea to deal with this issue at that point to avoid later disagreements.
November 16, 2009
Changes to the Rules of Civil Procedure - Part 3
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 3 of our review of the amendments.
In our last post we discussed r. 29.2, which introduces a proportionality component into discovery. The rules have also been amended to change the test for disclosing documents. The current test is that parties are required to disclose all documents “relating to any matter in issue”. The case law has developed to define this test as anything having a “semblance of relevance” must be disclosed.
The amendment to r. 30 changes the wording: parties must now disclose documents “relevant to any matter in issue”. Until courts have weighed in on what exactly the change from “relating” to “relevant” means, there is some uncertainty. It seems that a relevance test is narrower than the “relating” test, but perhaps the aim is to merely codify the existing “semblance of relevance” test.
In our last post we discussed r. 29.2, which introduces a proportionality component into discovery. The rules have also been amended to change the test for disclosing documents. The current test is that parties are required to disclose all documents “relating to any matter in issue”. The case law has developed to define this test as anything having a “semblance of relevance” must be disclosed.
The amendment to r. 30 changes the wording: parties must now disclose documents “relevant to any matter in issue”. Until courts have weighed in on what exactly the change from “relating” to “relevant” means, there is some uncertainty. It seems that a relevance test is narrower than the “relating” test, but perhaps the aim is to merely codify the existing “semblance of relevance” test.
November 5, 2009
Changes to the Rules of Civil Procedure - Part 2
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 2 of our review of the amendments.
In our last post we discussed the introduction of the discovery plan. In addition to aiming to increase efficiency in the discovery process, the new rules emphasize proportionality. Rule 29.2 is a new rule which introduces proportionality into discovery. In making production orders, a court will analyze a number of factors, such as whether answering a question or producing a document would:
1) require an unreasonable amount of time;
2) create an unjustified expense;
3) would cause undue prejudice;
4) would unduly interfere with the orderly progress of an action;
5) result in an excessive volume of documents; and
6) whether the document is available from another source.
These criteria could be problematic. It seems to me that these factors create room to argue that relevant documents need not be produced; for example, does this allow a plaintiff with a lengthy pre-accident history to argue the records do not have to be produced because there is an “excessive” amount of them? There will be disputes and hopefully judges will apply a common sense application to r. 29.2.
October 28, 2009
Changes to the Rules of Civil Procedure - Part 1
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 1 of our review of the amendments.
A brand new rule has been created which introduces a “discovery plan”. This is a document created by the parties which will set out things such as the scope of discovery, timelines for service of Affidavits of Documents and names of persons to be examined. There is no prescribed form for the discovery plan, so precedents will have to be developed. This rule presumes a level of cooperation between counsel which may or may not exist. The aim of the rule is to make the process of documentary and oral discovery more streamlined and efficient; however, it could result in a new area of dispute between parties. It could be especially difficult in cases involving self-represented litigants to come to agreement on the elements of the discovery plan. If there is no discovery plan, a judge on a motion can refuse to grant the relief sought; for example, on an undertakings motion, the court could refuse to order the undertakings be complied with if there is no discovery plan. It would seem prudent to “paper the file” if counsel is unable to come to an agreement on the discovery plan, so that at least there is proof that an attempt at complying with the rule was made.
Although the discovery plan aims to make discovery more efficient, it is possible that it increases cost, at least in the short term, as counsel develop a standard practice for the discovery plan.
A brand new rule has been created which introduces a “discovery plan”. This is a document created by the parties which will set out things such as the scope of discovery, timelines for service of Affidavits of Documents and names of persons to be examined. There is no prescribed form for the discovery plan, so precedents will have to be developed. This rule presumes a level of cooperation between counsel which may or may not exist. The aim of the rule is to make the process of documentary and oral discovery more streamlined and efficient; however, it could result in a new area of dispute between parties. It could be especially difficult in cases involving self-represented litigants to come to agreement on the elements of the discovery plan. If there is no discovery plan, a judge on a motion can refuse to grant the relief sought; for example, on an undertakings motion, the court could refuse to order the undertakings be complied with if there is no discovery plan. It would seem prudent to “paper the file” if counsel is unable to come to an agreement on the discovery plan, so that at least there is proof that an attempt at complying with the rule was made.
Although the discovery plan aims to make discovery more efficient, it is possible that it increases cost, at least in the short term, as counsel develop a standard practice for the discovery plan.
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