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When you start a personal injury lawsuit in Ontario, you must consider whether you want to proceed in one of three ways:

There are pros and cons for each forum depending on the type of case you have. One of which is the presence of juries. There is no jury for a Small Claim Court or Simplified Procedure action. There is an option to have a jury for Ordinary Procedure Cases.

In a recent Ontario case (Edwards v. Alcock, 2022 ONSC 4099), the Plaintiff wanted to move from the Ordinary Procedure to the Simplified Procedure close to trial. As the case evolved, the Plaintiff realised that it would be more advantageous to proceed under the Simplified Procedure without a jury. Unfortunately, it was too late in the proceeding and the Court refused the Plaintiff’s request.

Overview of the case

The Plaintiff was injured in a car accident on February 19, 2019 in Peterborough, Ontario. The Plaintiff issued a statement of claim on October 25, 2019, seeking $1,000,000 in damages plus interest and costs. The Defendant filed a jury notice. As the trial date approached, the Plaintiff brought a motion to have the matter transferred from the Ordinary Procedure to the Simplified Procedure and to have the jury notice struck.

The motion was dismissed.

What is Simplified Procedure and what are the benefits?

The Rules of Civil Procedure outline the procedures that must be followed by the parties in a civil lawsuit. Rule 76 of the Rules of Civil Procedure allow the parties to proceed with a special process called Simplified Procedure.

The purpose of Simplified Procedure is to reduce the cost of litigating claims of relatively modest amounts. Parties in Simplified Procedure actions will have fewer procedures available to them and will therefore spend less time and money bringing a matter to trial. Some of the limited procedures include:

  • there is a time limit of three hours for oral examinations for discovery, as opposed to the usual seven hours in the ordinary procedure;
  • the parties must agree on a trial management plan;
  • there is no option to proceed by way of jury, as all Simplified Procedure trials are before a judge alone;
  • trial is limited to five days;
  • evidence is produced through affidavit only, subject to limited cross examination;
  • the parties are limited to three experts; and
  • costs are limited to $50,000 and disbursements are limited to $25,000.

Prior to January 1, 2020, Simplified Procedure was only available to claims seeking $100,000 or less in damages. After the amendments, claims of up to $200,000 were allowed to proceed under the Simplified Procedure.

The Plaintiff had set the matter down for trial in the Ordinary Procedure

There are consequences for setting a matter down for trial.

Under Rule 48.04(1) a party who sets down an action for trial may not initiate or continue any motion or form of discovery (with certain exceptions), without leave of the Court.  

There have been two recognized approaches the Court can take for granting leave under Rule 48:

(a) where the moving party shows a substantial or unexpected change of circumstances since the filing of the trial record, or;

(b) if it is in the interest of justice.

The Court has been encouraged to consider the following factors in determining whether to grant leave: 

  1. what the party seeking leave knew when it delivered the trial record;
  2. whether there has been a substantial or unexpected change in the circumstances since the action was set down for trial;
  3. the purpose of requesting leave;
  4. the nature of the relief being requested;
  5. whether the party opposing leave would suffer prejudice; and
  6. whether the relief sought would likely be granted if leave were given (see paragraph 9 of the decision).

The judge refused to grant leave for the Plaintiff to bring the motion

The Plaintiff submitted that there were three changes of circumstances relevant in this case that should grant him leave to bring this motion.

First, the Plaintiff argued that due to the COVID-19 pandemic, there is a large backlog of cases and that this matter might not be reached when it is scheduled in November 2022.

The Court was not satisfied with this argument. The trial record was filed in August 2020, five months after the pandemic was widely known. Furthermore, the Plaintiff failed to provide any evidence that the trial would not be reached in November 2022. There was no evidence as to how many cases were on the trial list or how backlogged the relevant Court was.

Second, the Plaintiff indicated that when he started his claim, he was having difficulty preforming his job duties and was facing potential termination from his job. He was not able to obtain alternative employment until October 2021. He argued that his chance in employment was a substantial or unexpected change in circumstances.

The Court rejected that argument on the grounds that the Plaintiff’s injuries were known, or ought to have been known, to him before he served the trial record. He had indicated in his oral examinations for discovery that he was unemployed but looking for alternative employment and may have to retire early. There was no substantial or unexpected change in circumstance in this regard.

Third, the amendment to the Rules of Civil Procedure increased the monetary limit for Simplified Procedure from $100,000 to $200,000.

In these circumstances, it would be unfair to the Defendant to transfer to Simplified Procedure just because the Plaintiff realised late his claim for damages would fall within the jurisdiction of the Simplified Procedure. Given the late stage of the litigation, the Court was not satisfied that a transfer would result in a quicker process given that virtually all the required pre-trail steps had been completed and the action was ready for trial.

The motion would have been refused anyway

Even if the Court had granted leave for the Plaintiff to bring the motion, it would still dismiss the motion. This is because Simplified Procedure has significant impacts on the conduct of trial.

The Court did not accept that the trial could be completed in five days as required under the Simplified Procedure. Also, this case would require viva voce (oral) evidence at trial. If it were to proceed under the Simplified Procedure, the evidence would have to be entered by affidavit.

The Defendant wished to have a jury trial and should be entitled to one. This intention was made clear from the outset.

For all these reasons, the Plaintiff’s motion was dismissed. The matter will proceed as scheduled.

Takeaway

The main takeaway from the case is to carefully consider whether your claim is best suited to Simplified Procedure or the Ordinary Procedure early in the litigation. Some things to consider include:

  • the complexity of the case—whether a trial could be completed in 5 days or less;
  • whether you can enter all necessary evidence by affidavit, or you need witnesses to testify orally;
  • the approximate value of the claim—whether the claim could reasonably be valued at $200,000 or less;
  • whether you want a jury or judge alone trial.

When considering bringing a lawsuit, you should discuss the pros and cons of each forum with a trusted lawyer before deciding how you would like to proceed.

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