Law Times

Law Times • January 11, 2010 FOCUS PAGE 11 New civil rules to affect insurance matters BY DARYL-LYNN CARLSON For Law Times S ignificant changes to Ontario's Rules of Civil Procedure aim to make it easier and less costly for clients and insurance companies to have their day in court. The changes came into ef- fect Jan. 1, although there will likely be an adjustment period before both time and cost effi- ciencies are realized while law- yers and judges get accustomed to the new regime. Many lawyers are applauding the new rules, which stand to fa- cilitate increased access to justice for civil cases and eventually re- duce costs for all parties to have their matter heard in court. Lawyers John Norton and Tara Pollitt, whose firm Mc- Call Dawson Osterberg Han- dler LLP in London, Ont., acts mostly for insurance com- panies, say the new rules will have tremendous benefits for the matters they deal with. They write an insurance law blog on which they've posted a six-part overview of the chang- es to the rules and how they'll affect insurance matters. In an interview, they point- ed to several highlights they say will eventually contribute to the mandate of saving court time and money. For example, a change to rule 20 pertaining to summary judgment will empower judges to expedite matters by enabling them to hear and evaluate testi- mony rather than relying solely on affidavits. The change is in- tended to help judges evaluate matters and dispose of them early if they lack merit. "Based on the current sum- mary judgment rule, courts are hesitant to dismiss a claim without it going through a full trial," says Norton. "They don't want to say someone isn't tell- ing the truth; they want to give people their day in court. But now, a judge can order a mini- trial and hear evidence and maybe deal with some of these issues in a much faster way. "For insurance companies, this can help with cutting down on defence costs, so it's an important issue for them." Another highlight they point to is a new rule that limits the time allocated for discovery. While previously there was no cap on oral discovery, under the new rules, it's limited to seven hours regardless of the number of witnesses to appear. As well, counsel are to have a plan for discovery and agree on it in advance. The rules also require allocating time propor- tionately to the relevance or complexity of each issue raised in the matter. "If lawyers can agree on a discovery plan and have access to documents well in advance, potentially you can resolve some of these issues before they even go to discovery and you won't have to go on a fishing expedition," says Pollitt. She adds, however, that it remains to be seen whether lawyers will be able to readily reach an agreement on the dis- covery plan expeditiously. "There is an assumption that counsel will work co-op- eratively, and while you hope that's the case, sometimes it's just not possible to work things out," she says. In the event there is a dis- agreement, counsel are free to initiate a challenge. As a result, there could be a relative increase in motions, something judges probably won't view in a favour- able light. There are also important changes dealing with rules for disclosure of materials by ex- perts. The new rules require, for example, that expert ma- terials be provided 90 days be- fore trial and the disclosure of responding documents 60 days in advance. their duty is to the court and to be objective," he says. Pollitt agrees it's going to take all parties some time to adjust to the new rules and their practical application. "As we're learning all these While lawyers will now have to agree on a discovery plan, there's no guarantee they'll co- operate, says Tara Pollitt. Pollitt says she expects this could pose some problems, de- pending on the nature of the case. "If you're getting an expert report 90 days before trial, in some cases you may need to have those updated before trial, which will only cost more for clients and lawyers," she says. Norton notes the rules affect- ing experts also require them to be impartial. "The new rules require the experts to provide a statement that they understand rules and how in practice they will work, there may be some extra costs just because of the time involved," she says. Sophie Petrillo, a commercial litigator at Pallett Valo LLP in Mississauga, Ont., wrote a paper reviewing the rule changes en- titled "New Rules Set to Stream- line Litigation, Reduce Costs and Increase Access to Justice." In assessing them, she points to the broadened simplified proce- dure rules that she says will be a particular benefit by streaming all files involving claims under $100,000 into that category. Additionally, she says, the courts will allow limited oral dis- coveries for the increased num- ber of cases that will fall under the simplified procedural rules. "They have recognized a lot more cases will fall into this cat- egory, so they have allowed for very limited oral discoveries of two hours, which will allow peo- ple to ask questions," she says. Another key change is the Trust [ Small Claims Court threshold, which increases to $25,000 from $10,000. "I think there is definitely a gap in cases where it would cost too much to bring to the Su- perior Court, so now with this increase, the credit manager of a company, for example, can bring a small-claims action and deal with it all directly," says Petrillo. For smaller insurance claims, meanwhile, "This increases ac- cess to justice for everyone." Petrillo agrees the discovery rule changes are particularly ben- eficial since they enhance both document relevancy and limit the time for oral examinations. "Previously, there was no limit to the amount of time for witnesses and, unfortu- nately, in my opinion, this made lawyers lazy," she says. "People wouldn't come to the examination prepared. This will force lawyers and clients to narrow down their issues, and to say that this is a cost- saving measure is an under- statement." The changes are a result of a review of the province's civil justice system launched by the Ministry of the Attorney Gen- eral in 2006. LT Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Stacey L. Stevens | David F.MacDonald | Michael L. Bennett For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. 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