The simplified procedure under Rule 76 of the Rules of Civil Procedure offers a method of proceeding with actions seeking monetary damages (or real or personal property with a fair market value) of $200,000 or less, that aims to simplify, speed up, and reduce the cost of trial.
Rule 76 was amended effective January 1, 2020, to include some significant changes to the simplified procedure. Some of the most notable changes include:
- An increase in the monetary limit from $100,000 to $200,000, exclusive of interest and costs.
- Jury trials are no longer available.
- Examinations for discovery cannot exceed 3 hours per party.
- Trials cannot exceed five days.
- Trials must proceed by summary trial only, which includes specific rules for the presentation of evidence. For example, the summary trial process contemplates adducing evidence in chief and expert evidence by way of affidavit, and cross-examination at the trial.
- Cost recovery is capped at $50,000, and disbursements are limited to $25,000, exclusive of HST, with the exception of actions commenced before January 1, 2020 under the simplified rules, and cost consequences for actions amended into the simplified rules.
The recent decision in Lightfoot v. Hodgins et al., 2021 ONSC 1950 (“Lightfoot”), addresses the impact that amending a statement of claim to bring an action within the monetary limits to which the simplified procedure applies has on a jury notice that was delivered prior to January 1, 2020.
In this case, the plaintiff brought a motion to amend the statement of claim to limit the damages sought to $200,000 and proceed under the simplified procedure, and to strike the defendants’ jury notice. Justice Muszynski ordered that the Plaintiff’s Statement of Claim was amended to proceed under the simplified procedure, and the jury notice was struck.
Justice Muszynski concluded that trials by jury are not allowed under the amended simplified procedure. If a pre-amendment jury notice was served, the parties can either transfer to ordinary procedure and preserve the jury notice, or remain under the simplified procedure with the jury notice struck.
Lightfoot involved a personal injury action commenced by the Plaintiff, Owen Lightfoot, against the owner of a vehicle, Gary Hodgins, and the driver of a vehicle, Judy Hodgins (the “Defendants”), arising from a motor vehicle accident that occurred on April 18, 2015.
About four months before trial was scheduled to proceed, the Plaintiff brought a motion for leave to amend the Statement of Claim to limit the claim to $200,000, to continue the action under the simplified procedure, and to strike the Defendants’ jury notice (the “motion”).
Justice Muszynski heard the motion on February 5, 2021, and released her decision on March 15, 2021.
Issues on the Motion
Leave to Bring the Motion
Pursuant to Rule 48.04(1), leave was required to bring the motion because the action was set down for trial. The test for leave was whether it could be shown that there was a substantial or unexpected change in the circumstances of the case.
Justice Muszynski granted leave to the Plaintiff to bring the motion based on the January 1, 2020 amendments to Rule 76 of the Rules of Civil Procedure, including the doubling of the monetary limit for the simplified procedure, as well as on the unexpected changes to the justice system caused by the COVID-19 pandemic (the “pandemic”).
Leave to Amend the Statement of Claim
Justice Muszynski considered Rule 26.01 and Rule 76.02(7) for a determination of whether leave should be granted to amend the Plaintiff’s Statement of Claim to bring the action within the simplified procedure.
Rule 26.01 states that: “On a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”
The Plaintiff agreed to reduce his claim from $750,000 to $200,000, in order to proceed under the simplified procedure. He understood that there could be negative cost consequences associated with his late amendment which would be reserved to the trial judge.
The Defendants consented to the Plaintiff amending his Statement of Claim and to the action continuing under the simplified procedure, but were opposed to the potential consequences that the amendments might have on their jury notice. Justice Muszynski accepted that the Defendants characterized the loss of their jury notice as an example of a non-compensable prejudice.
Rule 76.02(7) stipulates that an action that is not commenced under Rule 76 can be continued under Rule 76 if:
- The consent of all the parties is filed;
- No consent is filed but,
- The plaintiff’s pleading is amended under Rule 26 to comply with subrule (1), and
- All other claims, counterclaims, crossclaims and third party claims comply with this Rule; or
- A jury notice delivered in accordance with subrule 76.02.1(2) is struck out.
On the motion, no consent was filed. Therefore the applicable provision was Rule 76.02(7)(b), which the Plaintiff satisfied by his proposed amendment reducing his claim to the monetary limits of the simplified procedure.
Justice Muszynski stated that granting leave to amend pursuant to these Rules is mandatory unless the opposing party can provide evidence of non-compensable prejudice. She referred to Crawford v. Standard Building Contractors Limited,2020 ONSC 5767 (“Crawford”), relied upon by the Plaintiff, which provided guidance on the mandatory nature of the Rule 76 procedure.
However, Justice Muszynski acknowledged that there was no jury notice served in Crawford.
The Interplay between the Simplified Rules & Jury Notices
The main issue before Justice Muszynski was the impact that amending an action to bring it into the simplified procedure had on a jury notice that was delivered prior to January 1, 2020.
The amendments to Rule 76 includes a transition provision in Rule 76.14 (the “transition provision”) that addresses a situation where a jury notice was delivered before January 1, 2020. The relevant portion of the transition provision creates an exception to the amendment that actions proceeding under Rule 76 shall not be tried with a jury.
Further, the Courts of Justice Act (“CJA”)was amended at the same time as Rule 76 to provide that an action proceeding under Rule 76 shall be tried without a jury. The amendments to the CJA include a similar exception to the Rules for actions where jury notices were delivered before January 1, 2020.
However, the practical implications of the transition provision in the simplified procedure is unclear. The confusion was reinforced by Justice Muszynski questioning: “Is it intended that these actions proceed to trial by jury under the amended Rule 76? Is it intended that these actions proceed to trial by jury in the ordinary procedure? Or, should these actions proceed to trial with a jury in the pre-amendment simplified procedure?”
The Plaintiff submitted that jury trials have no place under the amended simplified procedure due to the 5 day limit on trials, the summary trial process that requires evidence by way of affidavit, and the limit on costs and disbursements.
The Defendants submitted that the transition provision allows for actions with pre-amendment jury notices to proceed under the new simplified procedure.
The Defendants stated that a jury can accept evidence by way of affidavit with limited cross-examinations, and that the trial management process can assist the parties in limiting the jury trial to a maximum of 5 days. In the alternative, the Defendants submitted that the action should remain in the ordinary procedure, so that the jury notice can be preserved.
Justice Muszynski agreed with the Plaintiff that jury trials are incompatible with the amended simplified procedure, and stated that “it is inconceivable how the mandatory summary trial process would work with a jury. Would the jurors sit together and read affidavit evidence that might include expert evidence? Would the reading time be included in the 5 days?”
Justice Muszynski agreed with the decision of Master Sugunasiri in Joseph v. Budgell, 2020 ONSC 6526 (“Budgell”) that considered whether actions with jury notices served before the amendment to Rule 76 on January 1, 2020, could continue under the simplified procedure with a jury.
In Budgell, in a Pre-trial Endorsement, Master Sugunasiri concluded that “actions with pre-January 1, 2020 jury elections are converted to ordinary procedure.” She goes on to write:
The most harmonious interpretations of the new rule 76, the new prohibition in section 108 of the CJA, and the exemption clauses therein, is that those who opted for a jury trial prior to January 1, 2020 preserve their right to a jury but must now proceed under the ordinary procedure rules.
Justice Muszynski granted the Plaintiff’s motion to amend the Statement of Claim to proceed under the simplified procedure. As a natural consequence of the Plaintiff’s success on the amendment motion, the Defendants’ jury notice was struck.
Justice Muszynski stated that the Defendants were not prejudiced by the proposed amendment of the claim into the simplified procedure by the corresponding loss of their jury notice to such a degree that leave should not be granted.
Justice Muszynski reasoned that the benefits to the Defendants included reduced exposure to damages; the ability to proceed in the desired process of the simplified procedure; and the preservation of their right to claim costs associated with the amendment from the Plaintiff at the time of trial.
Justice Muszynski found that the most compelling factor in striking the jury notice was the admission by both parties that the action was well suited for the simplified procedure, including the summary trial process.
Further, beyond the interests of the Plaintiff and Defendants, Justice Muszynski considered the current challenges with the justice system more broadly as a result of the pandemic. She referred to the civil justice system as “being overwhelmed” as specifically referenced by the Court of Appeal in Louis v. Poitras, 2021 ONCA 49.
She stated that “it would be contrary to the interests of justice and the principle of proportionality to require that this action continue to a 3 week jury trial in the ordinary procedure rather than a 5 day, non-jury summary trial under Rule 76.”
Justice Muszynski concluded that the potential delay in proceeding to trial with a jury due to the pandemic was not the driving force behind her decision to strike the Defendants’ jury notice. In fact, she described the Belleville courthouse as able to accommodate jury trials in a manner that is consistant with public health protocols, and that the County of Hastings has been relatively fortunate in having low numbers of reported COVID-19 cases within the jurisdiction.
Due to the interplay between the amended simplified procedure and the impact on jury notices, this decision is unlike many of the recent decisions involving motions to strike jury notices due to delay associated with the pandemic.
There are now at least two reported decisions which confirm that jury trials are not allowed under the simplified procedure, regardless of whether a jury notice was served before January 1, 2020.
If parties require a jury, the action must proceed by ordinary procedure.