Understanding Simplified Rules

Civil Litigation  | Simplified Rules

INTRODUCTION to IMPROVED LAWSUITS!

Suing for your money in Ontario is a little easier for claims that are $50,000.00 or under. There is a way to get your day in Court that is cheaper and faster than you'd expect. In certain jurisdictions it is now possible to have a case go from start to finish in under a year, with less procedural steps in between.

This simpler process has three significant aspects that are different than the usual lawsuit:

1) No examination for discovery or cross examination;

2) At least part and possibly all of the trial can be based on affidavit evidence;

3) trials can be remarkably short.

In order to appreciate how the faster system works you need some understanding of the regular one.

Discovery;

This is the process where both parties find out the particulars of each other's case before trial. It consists of each party showing up with their lawyer to a designated place where they are questioned under oath about their claim or defence in the lawsuit. The process of examination is like questioning in court but without a judge. This procedure is mandatory in the regular system and can be costly - you have to pay for hiring the room, the court reporter who records the testimony, the transcription of the evidence and for your lawyer's time. Additional costs occur when lawyers can't agree about whether a question is proper: when lawyers can't agree they may go to court to argue the point. This proceeding is called a motion and you pay your lawyer to prosecute it or defend it.

So, by eliminating discovery from the litigation process a large amount of cost is equally gone. The down side is that by losing Discovery you lose a valuable tool which can help you prepare for trial because it provides a clear understanding of the other side's case. But if the claim is for $50,000.00 or less (Discovery may not be as important).

Summary Trials:

The faster system gives the parties the option of having a summary trial based on affidavit evidence as opposed to oral testimony. The catch is that both parties have to agree, something that could well occur given the cost savings.

When witnesses testify at trial there is, in the ordinary proceeding, two ways in which they do so . Examination-in-chief and cross-examination. The examination-in-chief occurs when the party who is testifying responds to questions from his or her own lawyer. Cross-examination as we all know is the grilling of the witness by the opposing lawyer. The simplified rules have an option to eliminate examination-in-chief for summary trials. Instead the witness can give his or her evidence in an affidavit. The opposing party can still cross examine the witness who signed the affidavit but they can also choose to forgo this exercise. So, one half (and possibly the other) of the questioning of witnesses, and the cost and time related to it, can be eliminated.

Time Limited Trials

Ordinary trials have no time limit. Cases scheduled to last three days can sometimes end up taking weeks to finish. The nightmare of litigation is this open ended nature of the legal costs; " when will this case be over and when will I stop being treated like a bank by my lawyers?" Under the simplified rules, even if cross-examination occurs at a summary trial, there can be a limit on how long it can last- no more than fifty minutes in total for each side. Once the questioning of the parties and their witnesses is over, the arguments of the lawyers can also be limited in time - a maximum of forty five minutes each. In other words you could have a trial and possibly receive the judgment in less than a day.

Additional things to consider about the summary procedure are:

a) mandatory settlement discussions between the lawyers within sixty days after the initial litigation documents have been exchanged. The opposing lawyers are required to explore ways in which the case can be simplified or resolved.

b) no one may be questioned on an affidavit before trial. Motions, those procedural skirmishes that occur when one party wants something from another, often include affidavits that were sworn by one party to support the argument that will be made to a Judge. Typically the person who swears the affidavit (the deponent) will be questioned by the opposing lawyer in advance of the motion, the evidence is transcribed and placed before the Judge at the hearing of the motion. The costs involved are identical to the discovery costs i.e. reporter, room, transcription, lawyer. No such questioning is permitted under the summary rules and all these potential attendant costs are therefore gone.

Costs Penalty

If you have a claim that is for $50,000.00 or less and you process it through the regular system you will be severally penalized in costs by either being denied your legal costs if you win or being required to pay the costs of the losing side. The same penalties could occur even if your claim is for more than $50,000.00 but it turns out to be under the limit in the final judgment. Should you start out in the regular system and decide half-way through that the case belongs in the simplified one (i.e. your claim, you conclude, is really under $50,000.00 ), you can still be ordered to pay all the regular system costs incurred by the other side before you switched procedures.

You can also be pulled into the regular system if your claim is under $50,000.00. If you sue someone for $50,000.00 using the simplified rules, the Defendant, to discourage you, might counterclaim against you for $50,000.00 or less. This will have the effect of putting the entire action, your claim and his counterclaim, into the regular, more costly and slower system. A Defendant might do this in the hope that if you are faced with a prolonged legal proceeding you might just forget the whole thing. But if the Defendant's counterclaim turns out to be worth less than $50,000.00, the Defendant could be penalized in costs.

The net effect is that any one who issues a claim or counter claim has to consider very carefully if their claim is really above or below the $50,000.00 line. Hopefully, this will mean that a simplified case stays simple.

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