No Witness Affidavit? If your trial is under Simplified Procedure, you might have a problem
A recent Endorsement by Associate Justice Rappos following a case conference in Gray v Liontos,[1] exposes a potential problem for matters proceeding to a Summary Trial under Rule 76.12 of the Rules of Civil Procedure. Specifically, where a witness is not cooperative in providing their evidence via affidavit, Rule 76 does not appear to provide any means of adducing the witness’s evidence at trial.
The Gray action involved a motor vehicle accident on November 10, 2018. A non-party witness to the accident had been unresponsive to emails from the Defendants requesting that she swear an affidavit for trial. The Defendants wanted the option to summons the non-party witness to provide viva voce evidence at trial, but this was opposed by the Plaintiff. A case conference was requested as the parties were unable to come to an agreement on a trial management plan.
A.J. Rappos considered the wording of Rule 76 and determined that it “repeatedly provides that evidence is to be adduced by way of affidavit.” He did not believe that the authority granted under subrule 76.10(5)(e) to make “such order” as the Court considers “necessary or advisable with respect to the conduct of the proceeding” could be used by an associate judge to override this requirement.
A.J. Rappos noted the possibility that a judge could be prepared to grant the relief sought by exercising their inherent jurisdiction. He suggested that the Defendants either schedule an attendance in Civil Practice Court or schedule a case conference before a judge. Thus, the Defendants still have avenues available to resolve this issue. It is nevertheless concerning that a plain reading of the procedure for a Summary Trial under Rule 76 could prevent the court from hearing relevant evidence simply because a witness will not cooperate in providing their evidence via affidavit.
As stated by A.J. Rappos in another matter, the policy behind Rule 76 is to reduce the cost of litigating claims below a certain financial threshold by decreasing the amount of procedure available in these cases.[2] However, simplifying procedure should not come at the expense of achieving a just result via the exclusion of evidence from uncooperative witnesses.
A review of the Final Policy Report submitted by the Civil Rules Review Working Group (the “Final CRR Report”)[3] suggests this problem may be resolved once the proposed Summary Track is introduced to replace Rule 76. The Final CRR Report proposes that the Summary Track culminate in a Summary Hearing based primarily on a paper record. However, the Final CRR Report states that the hearing judge would have discretion to permit oral evidence from one or more witnesses to ensure that all information necessary for a final determination of the issues is before the court.
According to the most recent statement on the Civil Rules Review,[4] the changes proposed by the Final CRR Report will be introduced in a sequenced manner. No timeline was provided for the introduction of the Summary Track, so, for the foreseeable future, Rule 76 will remain in effect.
[1] 2026 ONSC 3709.
[2] Kovacevic v. Kovacevic, 2023 ONSC 7093 at para 49. Ironically, Small Claims Court matters do not face this same issue. Section 27 of the Courts of Justice Act allows the Small Claims Court to admit any oral testimony as evidence, while rule 18.03 of the Rules of the Small Claims Court outlines the procedure to summons a witness. Consequently, based on current monetary limits, this problem will impact actions where the amount claimed exceeds $50,000, but is $200,000 or less exclusive of interest and costs.
[3] https://www.ontariocourts.ca/scj/files/pubs/2025-12-15-final-policy-proposal.pdf.
[4] https://www.ontariocourts.ca/scj/news/attorney-general-downey-and-former-chief-justice-morawetz-joint-statement-on-civil-rules-review/.