Beginning where we left off earlier, the Simplified Procedure, under Rule 76 of the Rules was initially introduced in 1996 to reduce the cost of litigating claims for modest amounts by shortening the pre-trial procedures, like permitting a “summary trial”, where the majority of the evidence is adduced by affidavit and strict time limits are imposed on the litigating parties. Same as the jurisdictional shift in the Small Claims Court, the Simplified Procedure is now mandatory where the claim being advanced is $100,000.00 or less, and optional for claims exceeding $100,000.00. Agreed that there is no general transition provisions, yet a limited transitional provision exists under the new Simplified Procedure Rule, avoiding any concern with respect to the cost consequences which might occur because of the shift in quantum of claims to $100,000. The cost sanctions in Rule 76 penalize a plaintiff for ignoring the provisions of the Simplified Procedure.
An intensely controversial amendment in the New Rules is the provision of two hours of examination for discovery under the Simplified Procedure when each party is permitted to engage in up to two hours of oral examination for discovery. Earlier, no oral discovery was allowed in actions proceeding under the Simplified Procedure, which under the New Rules should not go beyond two hours, regardless of the number of parties or other persons to be examined. A legacy from the old regime, the ban on examination for discovery by written questions, cross-examination on affidavits and examination of a witness on a motion continues. This allowance of two hours of oral discovery got in after several lawyers, particularly those from outside of Toronto, supported the reform while members of the review committee who wrote the Simplified Procedure opposed it. Although they lost, the Committee’s belief in the matter needs reiteration:
… the Advisory Committee believes that the fundamental principles that underlay the original recommendation and adoption of a simplified procedure for claims involving more modest amounts should be maintained. First and foremost among those fundamental principles was the removal of any right to the normal discovery process. The Advisory Committee believes that it is inconsistent with a simplified procedure to permit discoveries which is the single most expensive step in a proceeding save and except for the ultimate hearing. If even limited discoveries are permitted, the Advisory Committee believes that parties will feel a compulsion to conduct discoveries in all cases thereby increasing the costs of each simplified procedure. There will also be the attendant costs of undertakings, refusal motions, re-attendances and the like. Consequently, the Advisory Committee does not favour the adoption of discoveries in the simplified procedure. This does not mean, of course, that parties cannot conduct discoveries by way of agreement in any case where counsel mutually agree that they would be helpful. A footnote is that the Attorney General and the Chief Justice of the Superior Court helped “two hours” by asking for reconsideration of the matter. It remains to be seen if the addition of discovery to the Simplified Procedure will be beneficial and lead to the narrowing of issues for trial, or just a broadening of the pre-trial matters to be dealt with by lawyers. Be that as it may, it is sure to lead to additional evidence, additional motions including refusals and undertakings, and additional out-of-court procedure which could increase the time and costs of matters proceeding under the Simplified Procedure.
Earlier a wide disclosure obligation was imposed under the rules on all parties to an action. Everything, document or otherwise, having a semblance of relevance to an issue in dispute was “discoverable”, a low threshold making discovery a very onerous pre-trial process. In the New Rules, “relevant” replaces “relating” in the phrase “relating to any matter in issue in the action” with a view to discard the “semblance of relevance” test and replace it with a simpler and narrower relevance test. Justice Perell famously noted that “whether this semantic elevation of the threshold of the test will make any difference in practice remains to be seen…” [but] it glaringly shows the acceleration and the proliferation of electronic documents that can be generated by modern communications technology. Anyway, the New Rules intend to make only those documents which are truly relevant to the matters in issue producible through discovery.
Applied with retroactive effect, the New Rules generated some inconsistency at hearings for undertakings and refusals motions in the new year.
With regard to the decision of Noble v. York University Foundation, released on February 17, 2010, Master Muir found that notwithstanding that the examinations for discovery took place in May of 2008 and the motion to compel the re-attendance of two defendants to answer questions refused at discovery was originally scheduled in December 2009, because the motion was heard after the new rules came into force, the appropriate test to be applied ought to be a stricter test of “relevance”, rather than the previous test of “semblance of relevance”.
As opposed to this, on February 25, 2010, Master Graham, in the decision of Wood v. 156 Kingston Residences Corp. et al. found that:[b]oth counsel at the examination would have made their decisions as to which questions to ask and answer based on the test in effect at the time. Therefore, despite the change in the wording of rule 31.06(1) effective January 1, 2010, the test for determining the propriety of questions at examinations for discovery held prior to the amendment taking effect is, absent the agreement of counsel, still the “semblance of relevancy” test.
The observation of Wood that the semblance of relevance test is to apply to refusals and undertakings motions arising from discoveries occurring prior to January 1, 2010 has been followed widely.
Nonetheless, in these instances, the relevance test during the transition period between the old regime and the New Rules are just interpreted. Till such time the test for relevance under the New Rules has been interpreted by the court and the new threshold judicially defined, it is not quite feasible to measure the impact of the change just yet.
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