Law Times

February 11, 2019

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LAW TIMES 2 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 11, 2019 "From our perspective, we would like to see the government move forward with changes. It is necessary to be careful, though. The devil is in the details," says Bohm, a partner at Blackburn Lawyers in Richmond Hill, Ont. The provincial Civil Rules Committee began consultations in October 2016 on reforms to the simplified procedure provi- sions. Last fall, it approved propos- als in principle and it will meet again on the final wording to be sent to Attorney General Caro- line Mulroney. The suggested changes would double the maximum claim un- der the simplified procedure to $200,000 from $100,000. Costs awards would be capped at $50,000 and disburse- ments at $25,000. A three-expert maximum under the Evidence Act should be "rigorously ap- plied." The length of trials under Rule 76 would be "strictly lim- ited" to five days and examina- tion-in-chief should be done by way of affidavit. Finally, the right to a jury in a simplified procedure trial would be eliminated under the com- mittee's proposals. The Courts of Justice Act grants the committee the au- thority to make rules related to "practice and procedure" of civil proceedings in the Supe- rior Court and Court of Appeal "subject to the approval" of the attorney general. If accepted, many of the changes could be put into place by the province through regula- tion. Some, such as eliminating the right to a jury in a Rule 76 trial, would require legislation to be enacted. "Attorney General Mulroney is committed to improving the justice system so that litigants can fairly resolve their disputes faster and more affordably," says a spokesman for the ministry. "She is actively reviewing the Rules Committee's proposed reforms to simplified procedure and has been discussing them with members of the bar." The changes were also raised at a Jan. 31 meeting called by Chief Justice of Ontario George Strathy to "brainstorm" on ideas to improve the administration of the courts in the province. Rep- resentatives of lawyers' groups were in attendance as was Mul- roney. Bohm and Winward say they were encouraged by the reaction of the attorney general to their comments on this issue. "I think she is very engaged with it," says Bohm. "The question is how bold are we going to get," says Winward. He believes the simplified procedure maximum claim could actually be increased to $500,000. "I don't think $200,000 is enough to get many more cases into simplified procedure," he says. However, he stresses that increasing the maximum even more requires procedural safe- guards for both plaintiffs and defendants. "You have to retain discretion with the trial judge. As long as the process is fair, the province could save a lot court time and money," says Winward. Perhaps the most conten- tious of the potential changes is removing the right to a jury in a Rule 76 trial. Roger Chown, a partner at Carroll Heyd Chown LLP in Barrie, Ont., says he agrees with many of the proposals except on the jury issue. "This is a long-standing right. There is no other way for you to get the public sensibil- ity or its involvement in the decision-making process," says Chown, who is also a director of the Canadian Defence Lawyers organization. Chown agrees that, in the area of personal injury litiga- tion, there is a split between the plaintiff and defence side when it comes to juries in these cases. "A lot of insurers want a jury. They tend to get better results," he says. "I understand that trials may move more quickly when there is not a jury. But you still have to hear all the evidence. It takes longer, but not a whole lot lon- ger," says Chown. Bohm agrees that the plain- tiff bar in personal injury cases is generally in support of remov- ing the right to a jury for simpli- fied procedure trials. "It is very difficult to finish any jury trial in less than three weeks," says Bohm. He also questions whether it is appropriate to ask the public to give up this much of its time for civil cases that are not the most serious in terms of the injuries at issue. "The right to a jury trial should be subject to proportion- ality. They should still be per- mitted in major cases," Bohm says. LT of Canada proposed amending its model code to address tech- nological competence. The consultation paper said the committee "considers a law- yer's understanding and main- tenance of technological com- petence to be an ethical issue of significant importance that should be specifically referenced in the model code." The LSO created a technol- ogy task force in the summer of 2018 to begin looking at these issues, including the model code proposal, says LSO Treasurer Malcolm Mercer. The law soci- ety does have practice manage- ment guidelines on technol- ogy use posted on its website, including 12 recommendations on mandatory technology use, confidentiality, practice man- agement software, marketing, piracy and backups. Brooke MacKenzie, who practises at Mackenzie Bar- risters PC in Toronto, says she doesn't necessarily think more rules are the answer, although she supports commentary pro- posed by the FLSC. "I don't think any new rules are required to protect clients' confidential information even as technology evolves. If law- yers are compromising clients' confidential information, that's already a breach of their existing duties," says MacKenzie. Mercer says he thinks the law society's approach historically has been correct — by address- ing issues of confidentiality, for example, but not being prescrip- tive about how it is done. Trying to evaluate cybersecurity pro- grams through the law society could be "foolish," he says. "We don't have mandatory technological CPD right now. There are programs available that satisfy existing require- ments that focus on technology. . . . My own view is that there is danger setting minimums for so many different things that you end up fragmenting the CPD," he says. "The law society isn't in the business of evaluating cyber- security, and frankly I would be really disturbed if it tried." Rebecca Bromwich, who is running for bencher, says she shares concerns about the law society micro-managing lawyers when it comes to technology, but she ultimately thinks the LSO should come out with some sort of rules. "We should end up with a rule about tech competence, and we should have that soon, but I don't want to impose one more thing on lawyers without sup- porting them," says Bromwich. Caryma Sa'd, principal at her own law firm and a bencher hopeful, says that while it would be helpful for the LSO to estab- lish a baseline for lawyers' tech knowledge through published best practices, she doesn't sup- port anything as drastic as a test or exam. The law society does have a role in promoting public interest in terms of modernizing the court system, she says. "Lawyers are the ones on the ground who are experiencing . . . delays because of a lack of tech- nology, especially in Ontario," says Sa'd. LT Reform needed on simplified procedure process Continued from page 1 NEWS Continued from page 1 Guidelines or rules suggested ONTARIO LAWYER'S PHONE BOOK 2019 The Ontario Lawyer's Phone Book 2019 has more than 1,400 pages of indispensable legal references that can connect you with anyone you need. Updated throughout the year, it contains names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. Order your copy today! Visit or call 1.800.387.5164 for a 30-day no risk evaluation. Perfectbound • Published December each year On subscription $87.50* • One time purchase $91* Order No. L7798-8405 • ISBN 978-0-7798-8405-6 Multiple copy discounts available *Plus applicable taxes and shipping & handling. Prices subject to change without notice. CONNECT INSTANTLY TO ONTARIO'S LEGAL COMMUNITY Untitled-9 1 2019-01-30 11:01 AM

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