There are many amendments to Ontario’s Rules of Civil Procedure coming into force on March 31, 2022.
These changes are due, in part, to the COVID-19 pandemic, which created a backlog in Ontario’s court system.
These amendments will impose stricter deadlines on trial preparedness and are expected to have the greatest impact on the expeditious, orderly and efficient running of judicial pre-trial conferences.
The Rules now require that pre-trial conferences occur not more than 120 days after matter is scheduled for trial and the trial should not commence 30 days from the day of the pre-trial.
The rule applies to all the actions which set down for trial on March 31, 2022, and afterward. The law is not retroactive.
Another amendment also permits a judge or associate judge (formerly a Master) presiding over a pre-trial conference to award payable costs against any party if it is determined that a pre-trial conference is unproductive because of a party’s conduct.
The amendments to this rule help foster commitment to productive pre-trials. So, if you’re planning to filing a trial record, you are expected to be “trial-ready” at the pre-trial and lawyers should inform themselves of these new pre-trial and trial timelines and ensure strict adherence.
The new amendment also reinforces the parties expectations that were already explicit in the Rules. Parties must come to the pre-trial conferences prepared to work collaboratively to resolve a lawsuit or ensure that any trial can run expeditiously, orderly and efficiently.
Another amendment requires parties to submit a Certificate of Readiness (Form 50A) at least 30 days before the pre-trial conference. In the Certificate of Readiness, each party must certify their intention to call (or not call) expert evidence at trial.
For any party that intends to rely on expert evidence, they must confirm in the Certificate of Readiness that they served their experts within the timeframe prescribed by the Rules (that is, 90 days prior to the pre-trial for an expert report and 60 days prior for any responding report).
And if a party doesn’t serve the experts report within the timelines the law stipulates they must provide explanation for the non-compliance.
This amendment reinforces the seriousness in complying with the service rules for expert reports already in place and is an indication that Ontario’s judicial system is no longer willing to tolerate late filings of expert reports.
Admitting Evidence at Trial
Another new amendment that will take effect on March 31, 2022, has changed the test for the leave to admit new expert evidence at trial.
The party seeking leave must give the judge a reasonable explanation for failing to adhere to their obligations under the Rules. In addition, the party seeking leave must continuously satisfy the judge leave is reasonable.
Further, the party must prove that leave cannot cause undue prejudice against the opposing party. And, the party seeking leave must prove to the judge why they should not compensate the other party by cost sanctions.
This amendment reinforces adherence to the existing rules and enhances efficiency in adherence to existing legal obligation of parties under the Rules.
The Rules of Civil Procedure have also been amending as summarized below:
In this amended rule, the party that files the trial record should place with that record any other order under Rule 50.07.
According to Rule 50.07, if the judge doesn’t settle a proceeding during the pre-trial conference, the associate judge or presiding judge may:
- Create a timetable and, in adherence to a senior regional judge or the presiding judge designation, fix another date for the hearing
- Order a case conference in line with rule 50.13. This only applies when it’s impractical to create a timetable
- Ensure adherence to the associate judge’s advice on the proceeding’s conduct
Rule 50.07 also calls for the judge to keep any copy of orders under this rule with the application or trial records. This implies that as a party to the case in question, you must also present these copies, if any, during the pre-trial conference.
The changes to this rule require the registrar to take note of all the applicable pre-trial conference necessities while placing concerns in the trial list.
The amendment on this rule introduces timelines for pre-trial conferences.
This rule is relatively new. It calls for the parties to fill out a certificate of readiness 30 days before attending the pre-trial conference.
The changes in this clause alter the associate judge or presiding judge’s powers. The law limits their powers at a pre-trial conference. But their influence is only limited by the law in an unsettled proceeding.
The new civil procedure requires that the judges prepare a pre-trial conference report after every pre-trial conference.
The change in this rule gives the presiding or associate judge more powers. Henceforth, the judge can order a party to pay an opponent immediately.
One party should pay the opponent if the judge discovers the party’s conduct contributed to a pre-conference unproductivity.
The changes to this rule give parties to a case a third way. So, going by this new rule, parties can abridge the time to submit their expert reports. The parties can consent in writing so long as their interests won’t delay the trial.
The amendment to this subrule offers a new consideration for judges to grant parties leave. And parties must amidst evidence during a trial if they fail to adhere to the set rules. Parties must serve the judge with reasonable explanations.
The change on this sub-rule provides judges and associate judges with extra trial planning powers. A judge, as an example, can make orders under the simplified procedure during a pre-trial conference.
All trial lawyers, regardless of whether they live and practice in Kingston, Ottawa, Toronto or surrounding jurisdictions, must understand the latest amendments to the Rules of Civil Procedure. All these new amendments take effect on March 31, 2022.
The amendments are expected to generally enhance the efficiency of pre-trials and trials.
So, read and understand the amendments and their effects. And when you need help with understanding these amendments, contact professionals for legal advice.
A summary of the changes can be found here: https://www.ontario.ca/laws/regulation/r22018
About the Author
Gavin Cosgrove is a graduate of Holy Cross Catholic Secondary School in Kingston. Upon graduation, he attended Manhattan College (New York, NY) on an athletic scholarship where he competed in track and field. Gavin completed his legal studies at the University of New Brunswick.
Gavin joined Bergeron Clifford in the summer of 2009 and is now a partner with our firm.
Gavin is a proud member of the Ontario Trial Lawyers Association, the Frontenac Law Association, the County of Carleton Law Association, The Advocates’ Society, and the County of Lanark Law Association. He represents innocent victims of negligence in auto cases, medical malpractice and negligence cases.