Introduction

The COVID-19 pandemic has caused a significant backlog in Ontario court cases. This backlog continues to worsen and is causing unprecedented delays in the judicial system.

On March 31, 2022, significant changes to the Rules of Civil Procedure will take effect that enforce stricter timelines and add rules to ensure parties are moving cases forward. While these changes will not drastically improve the backlog of cases on their own, they demonstrate a concentrated effort towards running efficient and short trials.

Major Changes

Pre-Trial Conferences

An addition to the Rules will require pre-trial conferences to be scheduled for a date no more than 120 days and no fewer than 30 days before the date when trial is scheduled to begin or the first day of the sitting during which the trial is expected to be held. This new timeline is to be taken into account by the Registrar when placing an action on the trial list. The new Rule will apply to actions set down for trial on March 31, 2022 or after, and is not retroactive.

Another addition to the Rules provides that if the judge or associate judge presiding at the pre-trial conference determines the conference was unproductive for reasons related to a party's conduct, immediately payable costs can be awarded against the party.

Additionally, the Rules will now require the judge or associate judge presiding at the pre-trial conference to produce a pre-trial conference report in every case. The pre-trial conference report will be required to be placed with the Trial Record by the party responsible for the filing of the Trial Record.

These changes to the Rules indicate that parties must commit to both pre-trial and trial dates that abide by the new timeline. They also reinforce the expectation that parties will arrive at pre-trial conferences prepared and ready to move the matter forward or be prepared to face adverse costs that are immediately payable.

Experts Reports

A new Rule will require each party to deliver a Certificate of Readiness 30 days before a pre-trial conference. Each party will be required to certify whether they intend to rely on expert evidence at trial, and if so, whether they have served their experts' reports within the time specified under the Rules.

If an expert's report was not served within the time permitted under the Rules, the party will be required to state in their Certificate of Readiness the reason why they could not adhere to the Rules. This requirement will apply even where there has been an extension for the time to file reports.

The changes to the Rules also introduce a third way for parties to extend or abridge the time for service of an expert's report or supplementary report. Parties will now be able to do so by written consent of the parties, provided the extension does not affect the scheduled trial date.

The importance of these changes is made clear by the additional change to the test for leave to admit evidence at trial, discussed below. These changes suggest the late filing of expert reports will no longer be tolerated. Parties will be expected to efficiently prepare for trial and must be ready to explain the reasons for their delay.

Test for Leave to Admit Evidence at Trial

The test for leave to admit evidence at trial following a failure to respect the Rules is also revised and bolstered. The changes introduce a new component to the test, whereby the party seeking leave must satisfy the judge that there is a reasonable explanation for the failure to adhere to the Rules.

The party seeking leave must also continue to satisfy the judge that granting leave would not cause prejudice to the opposing party that could not be compensated for through costs or an adjournment, nor cause undue delay in the conduct of the trial.

Notably, the changes to the Rules further clarify that a party will need to obtain leave and satisfy the judge that there is a reasonable explanation for the failure to adhere to the Rules where they fail to comply with the timeline to serve expert's reports, not just where they fail to serve a report altogether.

Again, these changes are a clear indication that parties will be expected to be efficient and adhere to the Rules. Parties will no longer be able to skirt around the Rules by demonstrating a lack of prejudice and delay. The courts will expect a reasonable explanation for failure to follow the Rules.

Extensive List of Changes

  • Clause 48.03(2)(c) is revised to require the party who filed the trial record to place with the record both any order under Rule 50.07 and the pre-trial conference report.
  • Rule 48.05 is amened to require the Registrar to take into account any applicable pre-trial conference scheduling requirements when placing an action on a trial list.
  • Rule 50.02 is amended to introduce the schedule for pre-trial conferences, requiring them to be scheduled for a date that is not more than 120 days and not less than 30 days before the later of the first day fixed for the trial, or the first day of the sitting during which the trial is expected to be held.
  • Rule 50.03.1 is introduced, establishing the requirement that parties complete a Certificate of Readiness 30 days before a pre-trial conference.
  • Clause 50.07(1)(a) is replaced to alter the powers of a judge or associate judge presiding at a pre-trial conference in a proceeding that is not settled.
  • Subrule 50.08(1) is amended to require a pre-trial conference report following every pre-trial conference.
  • Rule 50.12 is amended by adding a judge or associate judge's ability to order costs to be immediately payable against a party where they determine a pre-trial conference was unproductive for reasons relating to that party's conduct.
  • Subrule 53.03(4) introduces a third way for parties to extend or abridge the time to file expert reports. Parties can consent in writing provided trial will not be delayed.
  • Subrule 53.08(1) is replaced with the new test for granting leave to admit evidence at trial following a failure to adhere to the Rules. A party will need to provide a reasonable explanation.
  • Subrule 76.10(5) is amended to provide judges or associate judges with additional trial planning powers during a pre-trial conference under the Simplified Procedure, by making orders they consider necessary or advisable with respect to the conduct of the proceeding.

For a complete list of changes, please review Ontario Regulation 18/22 made under the Courts of Justice Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.