Civil Proceedings - Hull on Estates #196
Listen to: Civil Proceedings - Hull on Estates #196
This week on Hull on Estates, Paul Trudelle and Chris Graham discuss the amendments to civil procedure, effective January 1st, 2010.
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Paul E. Trudelle - Click here for more information on Paul Trudelle.
Christopher M.B. Graham - Click here for more information on Chris Graham.
Paul Trudelle: Hi and welcome to
Welcome to
Chris Graham: Hi and welcome to another episode of
Paul Trudelle: And I’m Paul Trudelle. How are you today, Christopher?
Chris Graham: I’m fine thanks, Paul. How are you?
Paul Trudelle: Very good, thanks. It’s a special day for me. This is my anniversary today.
Chris Graham: Oh, congratulations.
Paul Trudelle: Wedding anniversary.
Chris Graham: Which anniversary number would this be?
Paul Trudelle: This is number 19 on the 19th, so that makes it my champagne anniversary.
Chris Graham: They’re all champagne anniversaries.
Paul Trudelle: I guess you’re right. Well put, well put. So in addition to celebrating my anniversary, we thought we’d spend some time today talking about the new Rules of Civil Procedure that are now in effect and have been in effect since January 1, 2010.
I guess the Rules aren’t new necessarily but there are a number of substantial amendments to the Rules and perhaps we can spend some time talking about those and just pointing out some of the highlights or important features with respect to the amendments.
Chris Graham: Okay, so one major change in the new Rules is the principle of proportionality which was brought into the Estates Practice Direction last year, has also been brought into General Civil Litigation. And now the new Rule 1.04, sub 1.1 brings this factor into play for litigation in all jurisdictions and mandates that Court Orders and directions must be proportionate to the importance and complexity of issues and the value of the amounts at stake.
Paul Trudelle: Right and that’s an overlying principle of interpretation that’s to be applied to the Rules in general and any Order that you’re seeking from the Court will now be made against that backdrop. Is the Order and directions proportionate to the importance and complexity of the issues and to the amounts involved in the proceeding? That’s a substantial change. We have yet to see how that’s going to be implemented or how that’s going to affect the Orders that a Court makes, but that’s something that must be kept in mind. That concept of proportionality is also something that is specifically referred to when dealing with motions and discovery. Sorry, when dealing with discovery, the discovery process. So in addition to that overriding principle, it’s also repeated in the discovery rules. But that proportionality concept is an important one and I think that all Judges and Masters will be aware of that principle of interpretation.
Chris Graham: Rule 20 has been revised significantly to expand…well why don’t you speak to this one Paul?
Paul Trudelle: Sure. The Rule 20 is the rule under which you can move for summary judgment. And it’s been expanded substantially and overhauled. Before, the test was whether a trial was necessary and where there were issues of credibility, the Courts could normally not make an Order for summary judgment. Now under the Rule, the Court’s powers are expanded so that they can access credibility and weigh evidence in making a finding as to whether the matter is something that can be decided in a summary manner or whether it needs to proceed to trial.
The rule also provides that if the matter is to go to trial, the Courts can make specific directions with respect to how the matter is tried. In effect, the rule allows the Judge to direct all of the issues for trial and set out the process for getting to trial much like a Simplified Proceeding. There can be an Order with respect to hearing evidence with respect to one issue only, limiting the amount of examinations that are necessary, providing that the materials that have been used to get to summary judgment can be relied upon in getting it to a summary trial.
Chris Graham: And Rule 20.06 has significantly altered fixing of costs in Rule 20 as well. So now the Court may fix and order payment of costs for a motion under Rule 20 by a party on a substantial indemnity basis if the party acts unreasonably in making or responding to the motion or the party acted in bad faith for the purpose of delay. So Rule 20, I suppose one might say some teeth have been added to Rule 20. It’s now a lot more practically effective or useful than it was before.
Paul Trudelle: I think it’s a lot more effective and we’re going to see a lot more motions for summary judgment under the expanded rule simply because the Court has more flexibility in deciding that motion. Before, we would often advise our clients or clients would be advised by anyone in a civil proceeding that a motion for summary judgment could be brought. However it was difficult to get a motion for summary judgment and there were substantial cost consequences if you failed on a motion for summary judgment. Now because of the expanded powers of the Court in determining whether a matter can be decided on summary judgment, I think that we’re going to see more of that.
Chris Graham: It almost seems like the Rules have been revised to bring in elements of trial of an issue only on a more modest scale.
Paul Trudelle: Right, yes. And in the Estates context, we’d often see that with the Order giving Directions, the Court could set out what the issues are to be decided and a summary procedure for getting those issues decided by the Court. In the regular Civil context, there wasn’t that power unless you were bringing a Simplified Proceeding. Now the Court has that power on the motion for summary judgment to either decide those issues that it can decide in a summary manner or if it can’t or it feels that it’s not able to decide those issues, setting out a summary trial procedure for getting those narrow issues decided. So that’s a substantial change under Rule 20 and we’ll have to consider that and wait to see how widespread those motions become and how many more of them we see.
Another substantial amendment is with respect to expert evidence. Firstly, the Court has codified the duty on experts to act objectively and to give non-partisan opinion evidence and only evidence with respect to matters which are within their expertise. So the Rules provide for that and set out what the obligations and duties are of the expert witness.
The Rules also affect the timing of delivery of expert reports. They’re now to be filed 90 days before the pre-trial conference rather than 60 days before trial. And responding expert reports must be served 60 days prior to the pre-trial conference. I think there part of the intent was to avoid delays or adjournments of trial because expert reports aren’t delivered in time. It also seems to enable a more meaningful pre-trial conference and I think that’s an important concept as well.
Chris Graham: Yeah, and you’ll find all of the new provisions relating to experts or a lot of them in Rule 53.03 including at sub 2.1, there’s specific form requirements to expert reports which are useful because they lay out what the report should include in the Order. And you know we deal with a lot of reports and there seems to be no consistent format for the kind of reports that have been provided in the past.
Paul Trudelle: Right, so there’s now the shopping list of things that need to be in your expert report and that includes the acknowledgment from the expert of the expert’s duty to be objective and non-partisan. I talked a bit about the timing change with respect to expert evidence. There are also substantial changes to the timing of most other matters in the Rules, with the view to providing more lead time. Most notice periods with respect to motions have now been bumped up to 7 days. That includes where a Factum is delivered and responding materials and now 4 days before the proceeding for the most part.
Chris Graham: Yeah and those changes are, I think they’re fairly obvious. Even 4 days could be difficult to meaningfully address arguments raised within 4 days but that’s what we do for a living I guess.
Paul Trudelle: Right, right. And just with respect to the motions for summary judgment, it’s not in the Rules but there’s a new Practice Direction that deals with the scheduling of those motions. And in effect, there’s now going to be a
The next change that I think is substantial and that we should talk about before we wrap up today is with respect to Examinations for Discovery.
Chris Graham: Yeah, discoveries really have been tightened up in a lot of respects. The first major change is the phrase in the Rules that states “relating to any matter in issue in the action” in defining the scope of discovery, has been replaced with “relevant to any matter in issue in the action”. And so there’s now a relevance test.
Paul Trudelle: Right, and I think that some felt that this may make production a little bit easier and you won’t have to produce everything that may relate to a matter in issue, and only produce what’s relevant to the matters in issue. I don’t know if that is necessarily going to be the outcome because if it related to the matter then it may be relevant to the matter. But we’ll see how that’s put in place in practice.
The other change or one of the other changes is with respect to oral Examinations for Discovery. There’s now a 7 hour time limit on examinations and under that rule, each party has 7 hours to complete all of their examinations of all of the other parties. So that may be something that will streamline…it will streamline discoveries and will I think force counsel to become much more focused and surgical with respect to their discoveries. There’s also a requirement that a discovery plan be put in place. There’s also the provision that the parties can agree that more discovery can be had if it’s felt to be necessary and all the parties agree. If the parties can’t agree that more discovery is needed, then the Court can order by Order allow for longer discovery. But I think you’re going to need to set out materials that address the matters in issue, why more discovery is important and also deal with the issues of the costs to all of the parties and address the issue of proportionality that we started with.
Chris Graham: And not to demean the importance of discovery before these Rules, but it certainly didn’t have the same structure to it and now it is a step that will have to be taken as seriously as drafting a Statement of Claim. I mean it was always taken seriously but the endless 10 hour, 2 day, 3 day discoveries of one witness are certainly over.
Paul Trudelle: Right, and I was at a seminar on the new Rules last week and one of the things that they were talking about is that preparation is going to be much more important under the Rules now because of the limits on the time for discovery. And the presenters at that seminar were talking about the old days where parties would not prepare as fulsomely as they should perhaps and really not get into the discovery until the second day and in the first day they’re just learning the documents themselves. That’s not going to be permitted or an option under the amendments and you’re going to have to know the case cold going in and make sure that you can get right to the meat of the examination and get those questions asked and answered.
Chris Graham: And just to reiterate, that’s 7 hours in total, not 7 hours per witness. So you’re really limited to a day and a half as discoveries go, really. A day and a half in all for all of the witnesses you’re going to call, subject to any agreement you may make with all counsel.
Paul Trudelle: Right. There’s also a change to the Rules with respect to Simplified Procedure. The limit for Simplified Procedure is now $100,000. So claims that are $100,000 or less or for property that’s worth $100,000 or less must be brought under the Simplified Procedure. And there’s changes to those rules as well. Discovery is now permitted under the Simplified Procedure. However that discovery is limited to 2 hours.
I think that wraps up an overview of the amendment to the Rules. We can perhaps spend more time dealing with each of those areas and maybe that’s something we can do on a later podcast. But for now, I think it’s important to be aware of the changes and we’ll wait to see how they get put into practice.
Chris Graham: Yeah, actually it’s going to be quite exciting to see, particularly with respect to Rule 20. That could really shake up the way trials are conducted in
Paul Trudelle: Yeah, that seems to be…that and the discovery provisions…seem to be the two major changes. And I’m thinking that they’re going to have a profound impact on litigation because of the expanded powers of the Court to make summary judgment, and if summary judgment isn’t granted, to tailor the trial so that it can be dealt with in a more expeditious basis.
Well thank you very much, Chris.
Chris Graham: And thank you, Paul. It was a pleasure.
Paul Trudelle: And we look forward to hearing from you. If you want to send us an e-mail, please e-mail us at hull.lawyers@gmail.com.
Chris Graham: Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice in Estate law. And we hope that you enjoyed the show. I’m Chris Graham.
Paul Trudelle: And I’m Paul Trudelle. Thank you.
Chris Graham: Till next week.
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