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CCCA_V3No4_Col-McCarthys-FIN.qxd:CCCA_V1No2_Col-Litigat-V1.qxd 11/23/09 9:43 PM Page 38 Legal Update – McCarthy Tétrault LLP Faster litigation, better results: Changes to the Ontario Rules of Civil Procedure he Rules of Civil Procedure and Small the end of the one-size-fits-all approach.The it arguably lowers the burden for meeting TClaims Court Jurisdiction Regulations are overarching proportionality principle applies the summary judgment test. The real being amended,with changes to take effect to discovery and is also specifically refer- change is found in the express overturning on Jan.1,2010.These changes are all aimed enced in relation to these changes.Taken of the Court of Appeal jurisprudence on at streamlining the litigation process and together, these changes to discovery ought summary judgment.The rules will express- ensuring faster and better results.They arise to render the discovery process more pre- ly provide that the court now has the from a report by The Honourable Coulter dictable, economical, and cost-effective. express power to weigh evidence, evaluate A. Osborne entitled Civil Justice Reform Importantly, the test for production has credibility, and draw inferences from the Project, and from the widespread feeling changed. The old “semblance of rele- evidence,even where more than one infer- that litigation is too expensive and court vance” test is gone. In its place, docu- ence is available on a motion for summary delays are unacceptably long. ments ought to be relevant to the action judgment where justice permits. The rule This article focuses on three changes in before they are required to be produced. changes also aim to end the binary particular: the new proportionality rule,the The driver behind the changes is for dis- approach to summary judgment of total amended examination for discovery rules, covery to be completed with due regard success or failure. In keeping with Mr. and the new summary judgment rule. for cost and efficiency. Osborne’s recommendation,the court now Similarly, the default position will be has the power to direct a“mini trial”where 1. Rule 1.01(1.1) will be amended to add an that no party ought to exceed seven hours this is required to resolve the issues. overarching principle of proportionality that of oral examination for discovery will guide the interpretation of all of the other without consent of the parties or The rule changes promise leave of the court.This should signal rules such that the court “shall make orders inations for discovery, and will“ and directions that are proportionate to the the end of endless and abusive exam- a revolution of sorts in importance and complexity of the issues, and the discovery process. to the amount involved, in the proceeding.” prompt counsel to sharpen their cases ” 2. Rule 29, the examination for discovery before proceeding to discovery. Where rules, will be subject to a series of amend- both parties or a court can be persuaded Timing ments to streamline the discovery process. that the case requires more discovery, this In the hands of skillful counsel, these three 3. A series of changes to Rule 20, the summary can be accommodated. changes have the potential to make it pos- judgment rule, will be made to reinvigorate The onus will be placed on the parties to sible to pursue litigation more efficiently.As the rule and allow more motions for summa- sit down and plan at an early stage what a a result,there may be a significant incentive ry judgment to be brought successfully. rational discovery process should look like. to determine what kind of benefits the new rules may confer on the existing cases you Proportionality Summary Judgment are managing. For example, there may be a The introduction of the proportionality This rule was originally aimed at identify- real incentive to wait until the NewYear to rule heralds the return of sanity to the liti- ing and terminating unmeritorious claims. bring a motion for summary judgment gation process. Good counsel have always The changes are driven by the widespread because your chance of success may observed this rule. However, its explicit recognition that Rule 20 has not worked increase significantly. introduction into the rules provides an as intended.The rule changes are a delib- excellent tool to curb the excesses of those erate attempt to reinvigorate the rule and Christine Lonsdale is a partner in McCarthy who have not. return it to its original function of culling Tétrault LLP's Litigation Group in Toronto. unmeritorious litigation. Ms Lonsdale practises in both English and Discovery The change in test from “no genuine French. Her practice focuses on professional neg- The rule changes promise a revolution of issue for trial” to “no genuine issue requir- ligence, administrative law and complex com- sorts in the discovery process.It ought to be ing a trial” is not the key change, although mercial negligence.(clondsdale@mccarthy.ca) 38 CCCA Canadian Corporate Counsel Association WINTER 2009