Key Proposed Changes to the Rules: What Civil Litigators Need to Know

Key Features of the Proposed Framework

Commencing a Claim

• Claims would be commenced via a standardized form, replacing the current choice between an action or an application.

• The type of dispositive hearing, either a summary hearing on a paper record or a trial with live evidence, would then be determined at a later stage.
• Amendments to pleadings would be permitted by right until witness statements and documents are delivered.

Service

• Defendants would need to confirm acceptance when a claim comes to their attention by any means.

• Email service would be permitted as an alternative to personal service.
• There may be prescribed penalties for not accepting service.

Pre-litigation Protocols³

• Pre-litigation protocols require parties to make a genuine effort to resolve their disputes before starting court proceedings.
• For certain types of cases (e.g., personal injury claims, debt collection claims, testamentary disputes), these protocols would mandate the early exchange of information and specific relevant documents.

Three-Track System

• Following the issuance of a claim, a three-track system has been proposed: the (i) Application Track, (ii) Summary Track, and (iii) High Value Track. A flowchart outlining the three-track system is enclosed at the end of this article.
• Application Track: Matters would proceed to a summary (paper) hearing in the ordinary course and include cross-examinations,⁴ mediation (if directed), and factums.
• Summary Track: This track would apply to claims under $500,000 and would follow the “up-front evidence model” expanded on below, including witness statements for all witnesses along with expert reports. The remaining steps largely follow those in the Application Track.
• High Value Track: This track would apply to claims over $500,000. Focused oral examinations of party witnesses would be permitted.⁵ A full conventional trial would follow mediation.

Discovery Process

• Oral examinations for discovery would be eliminated in some cases in furtherance of a shift from relevance-based disclosure to reliance-based disclosure, where parties produce the documents they intend to rely on. As noted above, focused oral examinations would be maintained for cases that fall under the “High Value Track”.
• The “up-front evidence model” provides discovery through three principal steps: (i) initial disclosure, (ii) primary disclosure, and (iii) supplementary disclosure.
• Under the initial disclosure obligations, parties would produce the documents referenced in the pleadings that are in the parties’ possession.
• Primary disclosure would involve the exchange of sworn witness statements of all the witnesses the parties intend to rely on.
• Where parties are not satisfied with the extent of disclosure provided, they may be able to obtain supplementary disclosure, which are to be available through arbitration-style “Redfern Schedule” requests and limited written interrogatories.
• To ensure the proposed changes work effectively, parties will have a duty to co-operate with one another to ensure the process is conducted in a practical way consistent with the overarching goals.

Motions

• A shift away from formal motions towards case conferences has been proposed. Relief that is more procedural in nature can be determined at a “Directions Conference” and the decision would be called a “Direction” (e.g., bifurcation of a trial, document production requests).
• Matters requiring fuller evidence or legal submissions would be decided at a formal motion and the decision would be called a “Motions Order” (e.g., security for costs, certificates of pending litigation).
• For some matters, it may not be clear on its face whether a Directions Conference or a formal motion is the appropriate procedure. It has been proposed that these fall into aresidual category and are to be determined through either one of these formats as required.