News and Views Issue 1: Winter 1998-1999
Simplified Proceedings
By June Ross, Associate Professor, Faculty of Law, University of Alberta and Member of the Forum's Board of Directors, and by Mark Opgenorth, student, Faculty of Law, University of Alberta. A special thank you to Chantal Corriveau (Member of the Forum's Board of Directors) for reviewing a draft of this article and providing us with her advice with respect to Quebec's Simplified Procedure by Way of a Declaration.
- Introduction
- A - Application
- B - Pre-Trial Procedure
- C - Trial
- D - Costs and Other Sanctions
- Simplified Proceedings Table
- Endnotes
INTRODUCTION
Recommendation 14 of the Systems of Civil Justice Task Force Report
encourages every jurisdiction to establish "expedited and simplified" proceedings
that are mandatory in actions were $50,000 or less is at issue and available at
the option of the parties where the subject-matter of the case warrants. In common
with the Civil Justice Review of Ontario and with Lord Woolf's Report
in England, the Task Force concluded that simplified proceedings would increase
access to the civil justice system for simpler, or smaller value, claims. The
essential underlying principle is proportionality: the costs of litigation should
be proportional to the amount at issue. It is, of course, essential that the basic
requirements of fairness and the adversary process be retained. But the simplification
of procedure does not necessarily interfere with these fundamentals, especially
for less complex claims. On the other hand, "the most perfect procedures that
can be imagined work injustice because their cost makes them unusable." [ 1 ]
Since the publication of the Report in 1996, the Federal Court and the superior
courts in Nova Scotia, Manitoba, Saskatchewan, Alberta and British Columbia have
joined the Tax Court [ 2 ] and courts
in Ontario, Quebec and Newfoundland, in adopting some form of simplified procedure [ 3 ].
In some cases these procedures are as yet untried - the Alberta and British Columbia
rules, for example, came into effect on September 1, 1998. The varied names of
and provisions regarding these procedures are summarized in chart form (Table:
Simplified Proceedings). An examination of these reforms indicates that, while
they possess common features, they also differ in important respects. This review
will examine the range of approaches to the definition of cases subject to simplified
procedure, the restrictions on pre-trial procedure, the mode of trial, and costs
and sanctions.
| Within this review a number of questions are posed. We are soliciting responses
to these questions and other comments, which will be summarized and presented
at a future date. We also welcome comments regarding developments in New Brunswick,
the Northwest Territories, PEI and the Yukon Territory, which have not been included
in this discussion as, to our knowledge, they do not yet provide for simplified
procedures.
Responses are comments may be provided:
|
A. APPLICATION
In surveying the range of approaches to the identification of cases, three questions
arise. First, is a monetary amount to be utilized and, if so, what amount? Secondly,
what, if any, discretion should be left to the parties and/or the court as to
the application of the procedure? Thirdly, are there particular subjects or types
of cases that should be included or excluded from the simplified procedure?
Given the underlying concern with proportionality, it is not surprising that in
most jurisdictions, the application of simplified procedures is related to the
money value of the claim. The stipulated amounts range from $15,000 (Newfoundland)
to $25,000 (Ontario and Tax Court), $50,000 (Quebec, Manitoba, Saskatchewan and
the Federal Court) and $75,000 (Alberta). In Nova Scotia and British Columbia,
application depends on the anticipated complexity of the case or length of the
trial, as indicated by the parties and subject to judicial supervision. Most of
the jurisdictions relying on monetary limits allow for consensual or judicial
exclusion from the simplified procedure. Ontario and Saskatchewan are the exceptions,
with no such provision.
All of the jurisdictions relying on monetary limits, other than Quebec, provide
for the inclusion of larger claims under simplified procedure when there is agreement
of the parties and/or court order. Quebec's simplified procedure applies to specified
claims, such as the sale price of movable property, price in a contract for services,
employment, lease, deposits or loans of money, of any amount [art. 481 .1,
al. 2 (a-fl], but other claims may not exceed $50,000. When there is doubt
regarding the nature of the claim, the courts have chosen to favour the application
of the rule over ordinary procedure [ 4 ].
Where there is discretionary application of or exclusion from the procedure, it
may be useful to establish criteria to determine the suitability of the case for
a simplified process. For instance, cases that raise issues of public importance
or involve complex evidentiary or legal issues might appropriately be excluded [ 5 ].
Generally the rules of court have not specified the grounds for including or excluding
a case from simplified procedure, leaving this to judicial development. Manitoba,
however, provides that a judge may consider any "appropriate" matter, including
"the nature of the action ... the amount at issue ... the complexity of the issues
... and the likely expense .." [ 6 ].
Some, but not all, jurisdictions exclude particular types of claims from simplified
procedure. These vary significantly.
|
B. PRE-TRIAL PROCEDURE
The strategies used to expedite pre-trial proceedings vary widely. The primary
differences relate to the extent of judicial discretion and the use of time limits
and/or restrictions on the available procedures. In Newfoundland and Manitoba
every limitation on procedure is determined by the discretion of the court, while
in Ontario pre-trial examinations are absolutely prohibited. Other jurisdictions
specify restrictions but allow the courts some discretion in relaxing these limitations.
Discretionary determinations may be made in the context of case management, regarding
which there is again a broad range of approaches [ 7 ].
Every jurisdiction places limits on examination for discovery, characterized in
the Task Force Report as a key cause of procedural delay. Examination for discovery
is restricted by a variety of methods: complete prohibition (Ontario and Saskatchewan);
prohibition of oral examinations (Federal Court and Tax Court); prohibition of
written interrogatories (British Columbia); time limits for examinations (British
Columbia and Alberta); and deadlines by which discovery must be complete (Nova
Scotia, Quebec, British Columbia). Ontario and Saskatchewan, which have opted
to abolish examination for discovery, provide instead for the disclosure of witnesses'
names.
It is interesting to consider the relationship of the monetary threshold and the
nature of the restrictions on discovery. Ontario, with no examination for discovery,
has a relatively low monetary threshold ($25,000). Saskatchewan increased the
threshold ($50,000), but allowed for judicial exemption from the no discovery
rule. Alberta's relatively high threshold ($75,000) is accompanied by the right
to a time limited examination for discovery.
Virtually every jurisdiction uses general or judge-imposed deadlines to expedite
pre-trial procedure, but Nova Scotia and Quebec do so exclusively. They place
no limits on the scope or nature of discovery, except for requiring that it be
completed by a certain date.
|
C. TRIAL
Simplified procedure does not imply in every jurisdiction a modification to the
trial process itself. In Nova Scotia and Quebec, for example, only the scheduling
of the trial is expedited-the procedure is that of an ordinary action. Other jurisdictions
give the court the option to restrict evidence to afffidavits only.
Special note must be made of the provisions for summary judgment and summary trial.
Every jurisdiction has provisions for summary judgment, and some also have summary
trials under ordinary procedure. In Saskatchewan and Ontario, these procedures
have a special application under simplified procedure. In each case, motions for
summary judgment are encouraged by a lower threshold for granting judgment. While
under ordinary procedure a "genuine issue for trial" precludes summary judgement,
under simplified procedure summary judgment is granted unless the judge is unable
to decide the issues in the absence of cross-examinations or if it would be otherwise
unjust. Summary trial is another option under simplified procedure for litigants
in Saskatchewan and Ontario. Essentially, summary trials proceed on the basis
of affidavit evidence only, with limited time for cross-examination, re-examination
and oral argument. In Ontario special procedures govern motions for summary trials,
while in Saskatchewan an ordinary trial will be granted only under special circumstances.
The Federal Court prohibits summary judgment applications for simplified actions,
and provides for what is essentially a summary trial for all simplified actions.
Newfoundland, Manitoba and Alberta have moved in this direction, by providing
for the increased use of affidavits at trial.
Other than Federal Court, all jurisdictions permit resort to general rules pertaining
to summary judgment and/or summary trial within the simplified procedure.
British Columbia's fast track trials have a unique feature. As indicated above,
the procedure is available only where the trial has been estimated to take no
more than two days. To enforce this initial estimate, two days prior to trial
the parties must file an estimate of the time they will require for evidence and
argument. The trial judge may accept or amend these figures and may hold the party
to these limits. If it appears that the trial will exceed two days duration, the
judge will adjourn the trial and the action will be rescheduled under ordinary
procedure.
|
D. COSTS AND OTHER SANCTIONS
Saskatchewan and Ontario employ costs to enforce proper use of simplified procedure.
A plaintiff who has employed the ordinary procedure, and at trial receives a damage
award less than the monetary threshold for a simplified procedure, will not receive
costs and may be required to pay the defendant's Costs. A defendant who objects
to simplified procedure risks paying the plaintiffs solicitor-client costs if
the award following an ordinary trial is less than the monetary threshold. It
is thus prudent to proceed under simplified procedure whenever the claim is anywhere
near the threshold, due to the possibility that the ultimate award will come within
the criteria of application. The federal court has a similar rule but it requires
the court to find an "exaggerated claim."
In Nova Scotia, which relies exclusively on time limitations, sanctions include
not only Costs, but potential dismissal of a claim or defence for failure to comply
with these limits.
|
- T. A. Cromwell "Dispute Resolution in the Twenty-First Century,"
in Canadian Bar Association, Background Studies to the Systems of Civil Justice
Task Force Report, 1996, at 123. See also The Rt. the Hon. Lord Woolf, Access
to Justice: Final Report to the Lord Chancellor on the Civil Justice System in
England (1996), Section 2, Ch. 2, para. 19; Ontario Court of Justice and Ministry
of the Attorney General, Civil Justice Review, First Report (1995), at 259-63,
Supplemental and Final Report (1996), at 131 -33; and Ontario Court of Justice,
Report of the Simplified Rules of Civil Procedure Committee (1994). Return
to Article
- The Tax Court of Canada employs an Informal Procedure for some
claims, primarily those involving appeals of $12,000 or less or loss determinations
of $24,000 or less, subject to party election and court order (Tax Court of Canada
Act, R.S.C. 1985, c. T-2 as am., ss 18-18.33; Informal Procedure Rules, SOR/90-688
as am.). This procedure is in the nature of a small claims or tribunal procedure,
with no discovery of documents or witnesses, an informal trial at which the rules
of evidence do not apply, and rulings that have no precedential value. In addition,
a 1993 amendment to the Act makes some special provision for claims within the
General Procedure, for appeals of $25,000 or less or loss determinations of $50,000
or less. It is the latter, modified General Procedure, that is referred to in
the Table. Return to Article
- For discussions of particular simplified procedures see: Law
Society of Upper Canada, The Simplified Rules Simplified (1998) (Ontario); J.E.
Callaghan & B.J. Caruso, "Simplified Procedure: Rule 76 of the Rules of Civil
Procedure, R.R.O. 1990, Reg. 194" (1996), 18 Advocates' Quarterly 388 (Ontario);
D.C. Hodson, "The New Summary Procedure Rules," (1998) The Advocate 13 (Sask.);
D. Roberts, "Rule 66: A Good Start," (1998) 56 The Advocate 725 (B.C.); A. Olivier,
"Splendeurs et mis៤e la procᣠall㸠Faut-il proc߰ar dౡtion
ou par requ泥 en matiβe de louage?" (1997), 57 Revue du Barreau 433. Return
to Article
- Vena c. Lindsey Morden Claim Services Ltd. J.E. 97-1767 Return
to Article
- This is the position taken in the Woolf Report, supra note 1,
pares. 13-16. Return to Article
- Manitoba Queen's Bench Rules, Rule 20A(4). Return
to Article
- The Table refers to case management rules only where there are special provisions for simplified proceedings. We have not surveyed approaches to case management generally. Return to Article