[vc_row][vc_column][vc_column_text]February 1, 2010

By Brad Smith

Several important changes affecting the civil courts designed to increase access to justice, reduce delay and lower the costs of court proceedings came into effect on January 1, 2010. The changes make court proceedings more economical. Previously, a person may have not pursued a claim, or settled it unfavourably, because of the legal costs and delay. Now a person may be more inclined to pursue a claim, or defend a claim, whether in the Small Claims Court, Simplified Rules or ordinary rules.

First, the limit of the Small Claims Court was increased from $10,000 to $25,000. The Small Claims Court process is simpler, faster and cheaper than Superior Court. This also makes it easier for a person to represent himself or herself. Many wrongful dismissal, construction disputes, damages claims and other lawsuits fall within the new limit.

Although Small Claims Court is “user friendly”, we recommend that a person get legal advice. Claims that may not be legally or factually complicated often involve hidden traps which a lawyer might help avoid. A lawyer does not have to be hired for the entire proceeding. Strategic legal advice at one or more discreet stages will keep the cost down but potentially increase the success.

Second, the limit of the Simplified Rules was increased from $50,000 to $100,000.

A court proceeding under the Simplified Rules is in the Superior Court, and thus is more complicated and time consuming than the Small Claims Court but less so than a regular proceeding. We expect that most people will want to hire a lawyer to represent them under the Simplified Rules. Although the process is simplified, the Rules themselves are quite complex. The advantage of the Simplified Rules is that the overall cost and time to resolve a claim should be considerably less than a regular proceeding.

A third major change is to the rules for Summary Judgment. The changes reduce the threshold for getting a decision without a trial. This should allow an earlier and less costly resolution of certain court proceedings.

Other changes include:

• Introducing an overriding principle of “proportionality”. In deciding procedural questions, judges will now consider factors such as the amount in dispute, the importance of the item in dispute, and cost or delay, to keep actions moving towards resolution quickly and economically.
• New limits on examinations for discovery, to avoid this process becoming abusive or overly costly.
• New notice periods for certain steps, to reduce court appearances for adjournments because parties are not ready.
• A requirement that parties attend pretrial conferences, in person or via telephone (previously only lawyers attended).
• New powers for judges on unsuccessful summary judgment motions and at pre-trials to make case management orders, such as setting timetables or streamlining the process.
• New rules governing expert evidence, to promote objectivity not advocacy from experts, returning to the idea that experts are there to assist the court, not argue with each other. Expert reports will also have to be exchanged earlier in the process; encouraging parties to both understand their own case and their opponent’s. This hopefully will create earlier settlements, saving cost overall.

Overall, these changes should reduce both the cost and time required for a satisfactory resolution of court proceedings. This should result in greater access to justice.[/vc_column_text][/vc_column][/vc_row]