Bold Strokes and Subtle Strategies forWorking with the “New” Rules of Civil

Procedure

R. Lee Akazaki, C.S. © 2010

Historical Background

• Rules of Practice and Procedure 1898-1984

• Rules of Civil Procedure – 1985

• R. v. Askov – 1990 : Constitutional Crisis in rationing judicial resources

Case Management

• Ontario Civil Justice Review and the CBA’s Report of the Task Force on Systems of Civil Justice – 1996

• Purpose: Clear deadwood by getting as many cases as possible ready for trial

• Perspective: Parties and Counsel responsible for unresolved actions

• Victim of its own administrative success – get as many deadwood cases on for trial as humanly possible

Response to GTA backlog spreading province-wide

• Toronto Practice Direction – 2004

• Rule 78 – 2005

• Civil Justice Reform Project – New Rules for 2010, most of which will apply to all judicial regions

Principles from Osborne Report

• Access to Justice (day in court)

• Proportionality

• One size does not fit all

• Culture of litigation

Topics

• Rules of Evidence in a Simplified Rules Trial

• Time Limits on Examinations for Discovery

• Coping with Time Limits on Discovery

• New Summary Judgment Rules

1. Rules of Evidence in a Simplified Rules Trial1. Rules of Evidence in a Simplified Rules Trial

• Mandatory jurisdiction increased to $100,000

• Summary trial may be elected on consent, or ordered by pretrial judge or master: subrule 76.10(6)

• Only significant change to summary trial procedure: 10 minutes of examination-in-chief

• Otherwise, the format is an affidavit evidence in chief, followed by a maximum of 50 minutes (total for all witnesses) of cross-examination and 10 minutes.

What to do with 10 minutes of examination in chief?

• Conventional refrain:

– Allow court to warm to witness instead of watching witness crumble under cross-examination.

– Allow witness to get comfortable in witness box

What to do with 10 minutes of examination in chief? (cont’d)

• A better strategy is to use it to deal with the most contentious issue and allow witness to explain the key point in his or her own words.

– Judges tend to tune out of boilerplate evidence and tune in if forewarned that the evidence is important

– Allows court to compare apples to apples on the most important point.

What to do with 10 minutes of examination in chief? (cont’d)

• To get there:

– Use the opening: trial judges permit it and do prefer having it, and it is not precluded by rule 76.12

– A main purpose of an opening is to provide a teaser about the evidence to be given, and to frame the issues

– Boilerplate can be put in the opening paragraphs of the affidavit, which the judge will read prior to the trial anyway

2. Time Limits on Examinations for Discovery2. Time Limits on Examinations for Discovery

• TIME LIMIT

• Not to Exceed Seven Hours

• 31.05.1  (1)  No party shall, in conducting oral examinations for discovery, exceed a total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with the consent of the parties or with leave of the court. O. Reg. 438/08, s. 29.

Dealing with problems with the rule

• The rule could be unfair in multiparty cases due to asymmetry. Eg., one plaintiff and two defendants: plaintiff subject to most of 14 hours and each defendant subject to a fraction of 7. Eg., FLA plaintiffs in personal injury cases will multiply 7-hour quota.

• The rule change ought to have limited the duration of the length of examination to which a party is subjected, to seven hours.

• In multiparty cases, one should contemplate informal arrangements among parties to transfer time allotments from peripheral parties to those “taking the lead” on examinations.

• The rule should probably be changed to reflect this reality. Such a change would not lengthen the overall length of discovery.

• Tip: Avoid disagreements by including these arrangements in the Discovery Plan

3. Coping with Time Limits on Discovery3. Coping with Time Limits on Discovery

• Use discovery plans to define scope

• Concept of proportionality changes the standard of care for litigation lawyers in their information-gathering function

• Among other things, amount of $$ being claimed can define scope – importance of managing client expectations

End of “Semblance of Relevance” Test

• What is meant by the change in scope from “relating to” to “relevant to”?

• The key is in the expression of the old test in Kay v. Posluns (1989), 71 O.R. (2d) 238

Sources for interpretation of new rule

• The ultimate reasonableness of the relevant issues is for the trial judge. At discovery a wide latitude should be permitted, but even there there are limits. I do not interpret "semblance of relevancy" as an open door to harass a party by exploring all dealings that he may be involved in. The questions must relate to relevant issues. It will be necessary to rule on individual questions or groups thereof because there is a limit to "semblance."

Kay v. Posluns (1989), 71 O.R. (2d) 238, at 246

• “If such examinations are not admissible at the trial, they can hardly be defended as a legitimate pre-trial process, if they cause pre-trial embarrassment.”

Choate on Discovery (Toronto: Carswell, 2004-09) p. 1-6

PREDICTED NEW TEST(You heard it here first)

• Common test of relevance between discovery and trial

• Subject to exceptions for reasons not related to relevance

– Eg., witness statements, expert opinions, insurance policies, etc.

Rationing time means staging priority

• Reconsider standard discovery checklists– Lead on questions for which you should

already know the answer, and leave them to the end if they do not help set up entry into important areas

– Don’t save the best for last. Dive into important issues first

• Written interrogatories where evidence to be gathered is informational and not contested.

4. Retooling the Summary Judgment Rule4. Retooling the Summary Judgment Rule

• Historical tension between litigants procedural rights:

A litigant's "day in court", in the sense of a trial, may have traditionally been regarded as the essence of procedural justice and its deprivation the mark of procedural injustice. There can, however, be proceedings in which, because they do not involve any genuine issue which requires a trial, the holding of a trial is unnecessary and, accordingly, represents a failure of procedural justice. In such proceedings, the successful party has been both unnecessarily delayed in the obtaining of substantive justice and been obliged to incur added expense. Rule 20 exists as a mechanism for avoiding these failures of procedural justice.

Morden A.C.J.O. in Irving Ungerman Ltd. v. Galanis (1991), 1 C.P.C. (3d) 248, 4 O.R. (3d) 545, 83 D.L.R. (4th) 734, 20 R.P.R. (2d) 49

After 1998, there was not much left of the rule

• Two leading decisions under the pre-2010 rule undermined its effectiveness: Agounie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161; 156 D.L.R. (4th) 222 (C.A.), and Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 38 O.R. (3d) 161; 156 D.L.R. (4th) 222.

• In Agounie:

“In ruling on a motion for summary judgment, the court will never assess credibility, weigh the evidence, or find the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence, and drawing factual inferences are all functions reserved for the trier of fact.”

 

New Summary Judgment Rules

• New threshold test

• New summary judgment powers

• Mini-trial

• Codification of ancillary procedural relief in the event motion for summary judgment is unsuccessful

• Costs sanctions for unsuccessful motion only if moving party acted unreasonably or in bad faith for the purpose of delay

Summary Judgment Threshold Test

• Until 2010, the moving party’s burden was to show “no genuine issue for trial.”

• This wording now changed to “no genuine issue requiring a trial.”

• Is the difference between “for” and “requiring” is more metaphysical than real? Standing by itself, the criticism might be warranted.

The court has signalled the new rule will be treated differently

• Update to my paper:

– Onex Corp. v. American Home Assurance, 2009 CanLII 72052 (S.C.J.) released December 21, 2009: New summary judgment rule will be applied retroactively to change the threshold test for pending motions started prior to January 1, 2010

Consequences of the new rule

• Lowering of costs consequences should encourage more motions

• Respondents need to file credible evidence

• Use of mini-trial requires special strategic considerations…

“MINI-TRIALS”Subrule 20.04(2.2)

• Advocated by the OBA as part of new summary judgment rule

• “Mini-Trial” describes procedure but not the purpose.

• Purpose of rule is not to permit the court to make findings of fact on oral evidence. The test remains whether a trial is required.

• If, after hearing the evidence, the judge is satisfied that a trial is not required, subrule 20.04(2) provides that the “court shall grant summary judgment.”

2010

• Mini-Trial procedure effectively turns the tables on respondents to summary judgment motions.

• If the responding party says there is an issue of credibility requiring trial, the party can be tested in court to see if the party’s issue is credible.

Strategy on a “Mini-Trial”

• “Mini-trial” not intended to replace a trial.

• Remember that the judge is still hearing a motion. Don’t get carried away. Stay focused on the motion.

• Insufficient to show your deponent is more believable than your adversary’s witness. Motion judge must assess credibility and determine that the credibility contest cannot be reversed at trial.

• Challenge witnesses with documentary or physical evidence which prove witness’ evidence cannot be believed.