The Simplified Procedure Rule in Ontario
A simplified procedure rule is in effect in Ontario. Its purpose is to reduce the the cost of litigating claims of modest amounts. When first introduced it was available for claims up to a monetary sum of $50,000.00, exclusive of interest and costs. Effective January 1 2010 the simplified procedure is in place for claims up to $100,000.00.
The Simplified Procedure Rule Limits Pre-Trial Litigation Activity
The reduction in litigation cost is achieved in the main by limiting the scope of oral pre-trial discovery.The major distinction of actions conducted under the simplified procedure rule from regular actions was that examinations of parties and witnesses before trial was not allowed when this rule was first introduced. When the monetary limit was increased to $100,000.00 the right to oral discovery was restored. However under the simplified procedure rule it is limited to two hours per party. Other oral pre-trial forms of discovery remain unavailable. While entitlement to oral discovery is limited other disclosure obligations are increased. Of particular importance is that each party is required to identify all persons who might have knowledge of the occurrences in issue in the action at an early stage of the action. The combined effect of these provisions should usually result in an earlier date for trial.
The simplified procedure rule also provides for an additional mode of trial from the ordinary trial. A summary trial whereby some evidence is submitted by way of affidavit is available if the parties agree to. The criteria for a summary judgment is also set at a lower threshold than a regular action thereby increasing the likelihood of an early resolution of the action.
Cost Consequences of the Simplified Procedure Rule
A key consideration encouraging the use of the simplified procedure is the cost consequence of failing to use it for claims that are within its monetary limit. Ontario is a loser pay jurisdiction when it comes to legal costs. The winning party in litigation is usually entitled to receive a payment towards its legal costs from the losing party. However where a plaintiff commences legal action under the ordinary procedure when it should have been commenced under the simplified procedure rule in view of the amount of the claim not only does the plaintiff lose the presumptive right to receive a contribution to legal costs but may also be required to pay the defendant’s legal costs. The reasonableness of the decision to proceed outside of the simplified procedure is to be assessed on the basis of the facts as they existed prior to a judgment in the legal action.