NEW SIMPLIFIED PROCEDURE
The purpose of this memorandum is to provide to our clients
who are considering the commencement of litigation an outline of
the new Simplified Procedure available for civil claims effective
March 11, 1996 (and amended January 1, 2002 to increase the
applicable claim value from $25,000 to $50,000).
ELIGIBILITY
All civil claims commenced after March 11, 1996, except for
construction lien, class proceedings and family law (including
divorce) proceedings are eligible for the simplified procedure.
The simplified procedure will apply automatically when the
plaintiff's claim is for an amount of $50,000 or less, exclusive
of interest and costs. The plaintiff may elect for it to apply
for a larger claim, subject to an objection by a defendant. If
the parties consent, even existing claims may be transferred to
the simplified procedure.
SUMMARY OF THE PROCEDURE
The major elements of the simplified procedure are as follow:
- there are no examinations for discovery, nor cross-examinations
on affidavits - there must be full disclosure of documents and
trial witnesses from one party to the other - summary judgment
(judgment based on affidavit evidence) will be available more
easily than present - there is a possibility of a "summary
trial" where the evidence is brought by affidavit and then
there are short cross-examinations allowed - there are very
significant and serious cost penalties which are outlined below
BENEFITS OF THE SIMPLIFIED PROCEDURE
The aim of this reform is of course to make litigation cheaper
and faster for cases in which there is less money involved. While
the very extensive rights of discovery available under the
present rules of procedure have assisted in making the results of
litigation more predictable because of the disclosure of each
party's case, the discovery process has become extremely time
consuming and expensive. To "win" a case involving less
than $50,000 a plaintiff often ends up spending almost as much or
even more in legal fees and disbursements. For straightforward
cases, the simplified procedure is an undoubted benefit.
COSTS
A plaintiff who obtains judgment for under $50,000 and
who did not bring the case under the simplified procedure will
not recover any costs except in very limited circumstances. Even
more serious, a plaintiff who ought to have proceeded under the
simplified procedure may be ordered to pay all or part of the
costs of the defendant.
SOME CONSIDERATIONS
It is very important to establish before commencement of
litigation the probable value of a claim. We must have at the
outset of the claim full documentation and must spend the time to
prepare proof of the claim as if it were proceeding to trial
forthwith. Trials under the simplified procedure will be much
less predictable in their result, in the same way that Small
Claims Court matters now proceed. In our opinion, the simplified
procedure is a significant benefit to the client of modest means
who has a legitimate civil claim. Such claimants must, however,
bear in mind that such summary procedures come at a cost of some
loss of fairness and predictability. The decision whether or not
to request the simplified procedure or to abandon, in certain
cases, a claim for an amount in excess of $50,000 must remain
with you the client after considering the merits of your case and
the consequences set out above. Naturally, if you have any
questions regarding this procedure, we ask that you consult us in
that regard as soon as possible.
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