New Rules of Court for Ontario

Posted on January 5, 2010 by Hull and Hull LLP

 

As all litigators in the province of Ontario likely know by now, January 1, 2010 ushers in not only a new decade but New Rules of Civil Procedure. The New Rules apply to all matters, regardless of when they were commenced.

The amendments to the Rules effected by Ont. Reg. 438/08 are the most extensive and significant since the Rules were adopted in 1985. The fundamental goal of the reform is to make the civil justice system more affordable and accessible for Ontarians.

Some of the more significant changes are as follows:

Proportionality – In April of 2009 we saw a movement toward proportionality of time and expense with the interests at issue in estate litigation upon the introduction of the New Practice Direction for the Estates List of the Superior Court of Justice in Toronto. New Rule 1.04(1.1) brings this factor into play for litigation in all jurisdictions and mandates that Court Orders and Directions be proportionate to the importance and complexity of issues and amounts at stake.

Summary Judgment – Rule 20 expands the Court’s discretion to assess credibility, weigh evidence, conduct mini-trials with oral evidence, and award substantial indemnity costs against a party acting unreasonably or in bad faith.

Expert Evidence – Experts must provide fair objective and non-partisan opinion, give opinion evidence only on matters that are within their expertise, and assist the Court as reasonably required. This duty to the Court prevails over any obligation experts owe to the party who retained them. Expert reports must be filed 90 days before the pre-trial conference and responding expert reports must be served 60 days prior to the pre-trial conference.  

Discovery – Among the many changes regarding discovery is a new definition of relevance. The phrase “relating to any matter in issue in the action” has been replaced with “relevant to any matter in issue in the action”. This changes the test to one of simple relevance. Proportionality comes into play again in Rule 29.2, which sets out the considerations that must be made in determining questions to be answered or documents to be produced. Parties must agree to a written discovery plan (Rule 29.1) and there is a 7-hour time limit on oral examinations for discovery (R. 31.05.1).

Time – Calculation of time pursuant to Rule 3.01(1)(b) for notice periods of 7 days or less excludes holidays. There are also earlier deadlines for service and filing of materials for motions (Rule 37) Applications (Rule 38) and appeals from interlocutory orders (Rule 61).    

If your New Year’s resolution is to learn the New Rules and their impact on your estates practice, you should attend the OBA Trusts and Estates Section Seminar, "Stay on top of the New Rules of court" on January 6, 2010.

Program Chair, Jane Martin, and speakers,  Mr. Justice David M. Brown and Madam Justice Lois B. Roberts of the Superior Court of Justice, and Hull & Hull’s own Suzana Popovic-Montag, will guide you through the changes and provide an opportunity to ask questions regarding implications for estates practitioners.

For more on this topic see Gary Watson’s summary of the amendments and Marni Pernica’s recent article in OBA’s Deadbeat magazine.  Previous Hull & Hull commentary by Rick Bickhram and Paul Trudelle can be found here and here.

I suspect that following the New Rules is one Resolution you will be sure to keep!

Sharon Davis

Sharon Davis - Click here for more information about Sharon Davis.

 

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E-Discovery: Do you know your metadata from your active data?

Posted on January 29, 2007 by Hull and Hull LLP
Ontario’s Rules of Civil Procedure mandate that in civil litigation, one must disclose electronic data (see the definition of “document” and “electronic” in Rule 1.03). However, there is very little guidance in the Rules or the case law about exactly how to disclose electronic data.

In today’s technology age, where the majority of our communications are via e-mail and not paper documents, electronic or e-discovery has become increasingly important. We’ve seen the importance of e-discovery in complex commercial litigation. Yet, it can be important and useful even in the context of less complex lawsuits, such as wrongful dismissal claims where e-mails can help form an employer’s case against an ex-employee.

It seems that many in the legal profession are unfamiliar with their clients’ obligations to preserve and produce electronic documents, and with the technology available to retrieve, search and produce such documents. In response to this deficiency, the Ontario Bar Association (OBA) recently released their Guidelines for the Discovery of Electronic Documents. The Guidelines address the preservation, retrieval, exchange and production of documents from electronic sources in electronic form. The Guidelines also explain important terminology relevant to e-discovery. For example, “metadata” is electronic information recorded about a particular document, such as its format and how, when and by whom it was created, saved or modified. “Active data” is data that is currently used in day-to-day operations.

Is e-discovery relevant to estate litigation? I believe that, with time, it will become more relevant. More and more people are keeping electronic records of all kinds of information, from financial transactions to diary-type entries concerning family relationships. For example, I learned of a situation in which a beneficiary believed that a testator had kept detailed electronic records during her lifetime of cash loans made to family members. The family members denied the existence of the loans and the electronic evidence of such loans appeared to have been deleted. Efforts were made to recover the deleted information.

E-discovery can form the basis of successful litigation, including Will challenges. The OBA’s e-discovery guidelines can help all lawyers cope with this new way to litigate.

Have a great day!
Bianca La Neve
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