Personal Injury Lawyers across Ontario are all talking about the dramatic changes to the Rules of Civil Procedure which take place on January 1, 2020.
The most notable change is that being made to Simplified Procedure.
The amount you can claim for Simplified Procedure claims will double from $100,000 to $200,000, exclusive of interest.
This is significant for personal injury lawyers because damages for pain and suffering claims across Canada are capped at around $388,604 depending on who you ask. We found our best reference guide here with an actuarial/accounting company who focuses their time on personal injury claims. This cap on general damages goes up (or down) each month with the cost of inflation.
The cap on general damages is also significant when taking in to consideration the deductible for car accident cases in Ontario. As of the time of preparing this edition of the Toronto Injury Lawyer Blog, the deductible for general damages in motor vehicle accident claims sits at $38,818.97 and is set to increase on January 1, 2020.
When you take in to consideration the cap on general damages in Canada, along with the deductible for pain and suffering in car accident cases in Ontario, many personal injury lawyer across Ontario will look to take advantage of bringing claims under the New Simplified Procedure Rules.
The New Simplified Procedure puts a cap on cost recovery at $50,000; along with a cap on disbursement recovery at $25,000.
What’s important to note here is that the recoveries are limited at these amounts. But there is nothing preventing another party from spending well over these amounts. That means that a deep pocketed insurer can spend $500,000 on a case limited to just $200,000 under the Simplified Rules, and only recover $50,000 in costs and $25,000 in disbursements. It wouldn’t surprise any of the personal injury lawyers at our office if any insurer spend 10x of the value of the case in order to prove a point. There is NOTHING preventing a party from over spending on a case. What doesn’t make good business sense has never stopped an insurer from attempting to prove a point. How this plays out we have yet to see.
The old limit for oral discovery time was 2 hours. That time limit has been increased to 3 hours. How this will play out has yet to be seen. We would love to see all of the lawyers with their egg timers and stop watches at discovery timing the minutes and seconds.
Trials are limited to just 5 days! A 5 day personal injury trial has been a rarity in today’s modern day of personal injury litigation. The Judge also does not have the discretion to lengthen the trial. We are all curious to see how this will play itself out.
There are no more jury trials for Simplified Procedure Cases. Insurers as a reflex put out jury notices for the majority of personal injury and in particular, car accident cases across Ontario. They preyed on the apathy and lack of knowledge of the jury of the threshold and deductible to get lower verdicts. Insures will no longer be able to play this card which is great news for Plaintiffs across the province. Judges are sophisticated parties and know about the threshold, deductible and know the tricks which insurers seek to play. In addition, Judges are getting paid to listen and adjudicate claims, regardless of how boring those claims may appear. The same cannot be said for jurors. The reality is that a juror would rather listen to a murder case, or a high profile criminal case rather than you run of the mill car 3 week chronic pain car accident case. There is a reason why legal TV dramas revolve around criminal cases and NOT personal injury cases. Personal injury cases are boring on comparison.
The Simplified Procedure leans heaving on Affidavit Evidence. It also limits the length of a party’s Pre-Trial memo setting out their position to just three pages. A case management master or pre-trial conference judge will set the number of witnesses each party may call, fix dates for the delivery of any witness affidavits including expert affidavits, and fix the date for trial (subject to the direction of the regional senior judge).
In the past, Courts handed out Pre-Trial dates. Now the parties must contact the Court to set up the Pre-Trial within 180 days of filing their Trial Record. This puts additional onus on a Plaintiff to advance the claim (Rule 50.02). On the topic of Pre-Trials, Rule 50.03 requires that any expert report be delivered BEFORE the Pre-Trial. The expert report must also be appended to an Affidavit from that expert in which that expert adopts the report. We really don’t see the use of this requirement under the Rules other than it creates more paperwork for the expert, lawyers and Court. It’s an additional cost which can be eliminated. If the lawyer is relying on the report at trial, the parties will certainly know this going in to trial.
Will the adoption of the new Simplified Procedure reduce wait times in Court; or will Courts become even more overburden because of the increased demands caused by the tight time lines created by the Simplified Procedure?
Hot take: The Courts won’t be able to handle the increased paper work and additional settlement meetings and Pre-Trial Conferences created by the Simplified Procedure. That’s our guess. The Simplified Procedure will result in more claims being advanced, more paperwork for the Courts, more Pre-Trial Conferences; all of which the Courts across Ontario aren’t equipped to handle. Getting your Pre-Trial conference within 180 days of filing your Pre-Trial record won’t happen. Instead when you contact the Court to get a Pre-Trial date, you won’t get anyone on the line or to respond to your letter or email request. If/when the Court does respond, the available Pre-Trial dates will be months and months or years down the road, thereby nullifying the streamline approach of the Simplified Procedure and resulting in even more delays.
As a young lawyer I always said that the Simplified Procedure wasn’t so simple. This name was misleading given all of the paperwork, affidavits and deadlines. Let’s see how it plays out on a wider scale.