Amendments to the Rules of Civil Procedure – Episode #152
Listen to Amendments to the Rules of Civil Procedure.
This week on Hull on Estates Rick Bickhram and Paul Trudelle discuss the amendments to the rules of civil procedure that have be set out by the government and come into effect on January 1, 2010.
The purpose of these amendments is to provide the civil justice system with a means of being more affordable and accessible.
Feel free to send us an email at email@example.com or leave us a comment on the Hull on Estates blog.
Amendments to the Rules of Civil Procedure – Episode #152
Posted on March 4th, 2009 by Hull & Hull LLP
Rick Bickhram: Hello, and welcome to Hull on Estates. You are listening to episode 152 on Wednesday, March 4th, 2009.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.
Paul Trudelle: And I’m Paul Trudelle.
Rick Bickhram: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Please e-mail us at: firstname.lastname@example.org, or you can visit us at our blog at estatelaw.hullandhull.com.
Paul Trudelle: Yes, and thanks Rick, I thought we’d get right into our topic today and I thought we’d either talk about the Bank of Canada drop of interest rates from 1% to ½ % and the effect that that’s going to have on my mortgage negotiations. Or we could talk about the new Rules of Civil Procedure. What do you think?
Rick Bickhram: I think probably the Rules or the amendments to the Rules of Civil Procedure.
Paul Trudelle: Okay, that’s a great idea. Let’s get right into that then. There are new Rules of Civil Procedure that have been proposed, or set out by the government. They come into effect on January 1, 2010.
Rick Bickhram: I think its important to note that the purpose of these amendments were to provide our civil justice system with the means of being more affordable and accessible for all who, I don’t want to use the word participate, but who are into the system.
Paul Trudelle: Yes and I think that the rule changes tweak a number of existing rules in some important ways, all of which is designed to improve access to justice, keep the costs of civil litigation which can be quite high, to keep those costs down, if possible.
Rick Bickhram: When do these amendments come into place?
Paul Trudelle: They come into place on January 1, 2010. They’ll affect all proceedings, whether commenced on or before or after that date. So it’s important for everyone to know what those changes are and how they’re going to affect their proceeding, whether the proceeding is now in the works or whether it’s going to be commenced after January 1, 2010. They have quite a broad ranging affect and therefore it’s important to be aware of what those changes are.
Rick Bickhram: So I guess the first step is to talk about one of, I guess, the broader principles of the rules and the first one is going to be Rule 1.04(1.1) and the overarching principle of interpretation on this rule is that the Court shall make Orders and give directions that are proportionate to the importance and complexity of issues and the amount involved in the proceeding. I think the key here is to understand that proportionality is expressly required to be considered on all motions relating to discovery.
Paul Trudelle: Yes and this is the Rule 1.04, is the general interpretation of the rules and in that section there’s the requirement of proportionality in making any Orders. And it’s felt that this particularly affects the issue of discovery because that’s a very expensive part of the litigation process, so it’s important to know that there is that overarching principle of interpretation that the Courts will apply in making any decision substantive or procedural.
In addition, the Rule 1.08 also allows the Court to hear matters by way of telephone or video conference. Again, designed to keep costs down, the cost of attending at a Court hearing.
Rick Bickhram: And I think this rule kind of exemplifies the purpose of making it more affordable and accessible for all who are in the civil justice system because (a) it will loosen up some judicial resources; and (b) it should make it more affordable by reducing lawyer’s fees. We don’t have to necessarily attend every single motion now.
Paul Trudelle: That’s right. And it also reaches out to embrace the technology that we do have now with respect to telephone conferencing and video conferencing. And makes the Court more accessible by using that technology. We’ll see when we talk about the rules of electronic discovery that again there is reference to or an appreciation of modern technology and how it affects civil litigation.
So also I was saying the rules address to some extent the issue of discovery and a lot of the amendments tweak the discovery requirements and the obligations of the parties to make full and fair disclosure. And it also streamlines the discovery process with a view to avoiding what can sometimes be very costly disclosure requirements. One of the important rules there is that the Courts have changed what is needed to be disclosed. They’ve taken out the requirement that you disclose any document that has a semblance of relevance which is a very broad requirement and has replaced that with a requirement that you produce any documents not relating to a matter in issue but relevant to any matter in issue. So it fine-tunes that. It goes beyond requiring that the document relate to a matter in issue, but it has to be relevant to a matter in issue. We often see in estate litigation, for example, a number of documents that relate to a matter in issue but may not necessarily be relevant should the matter proceed to trial.
Rick Bickhram: And I think that’s again another important distinguishment and it goes back to the purpose of the rule which hopefully will reduce costs. We don’t necessarily have to comb through every single document now. We only look at the relevant documents. And it will thus make it more affordable for individuals to access our civil justice system.
Paul Trudelle: Yes.
Rick Bickhram: One of the interesting tweaks I’ve noticed about the discovery rules is the parties, I guess, pursuant to Rule 29.1, are required to file a discovery plan. And the plan (a) must be in writing; and (b) it must include the intended scope of any documentary discovery that’s to occur. What’s your view on that?
Paul Trudelle: Well I think that is going to get parties thinking at an early stage about the discovery process, what is going to be discovered, what is relevant to the matters in issue. Rather than just leave it open to discovery and have those issues come up at discovery, the parties must turn their minds to the discovery plan at an early date. It’s either 60 days after the close of pleadings or at the time they wish to obtain the evidence. So when you request the Affidavit of Documents, for example, before you do that, you must have this discovery plan. And you said that the plan has to be in writing, it needs to set out what the intended scope of discovery is so the parties need to look at what the issues are and what’s going to be relevant to that. The parties must go on to set out a timetable for the discovery process, dates for service of Affidavits of Documents, information on timing, the costs and the manner of production, address who is going to be examined for discovery, the place of discovery, the timing of the discovery, when they’re going to take place obviously, and also the length of the examinations.
Rick Bickhram: Another interesting tweak about the discovery rules is the Examination for Discovery. Under the new rules, no party is allowed to discover for more than 7 hours without the consent of the parties or a Court Order. And my understanding of this rule is that I call it the 7 hour rule, is in place regardless of the amount of witnesses that a party may have to examine. Is that correct, Paul?
Paul Trudelle: I understand the rules to limit discovery to 7 hours for each party. So each party would have 7 hours to examine the other parties. The rule specifically provides that no party may examine for discovery more than 7 hours, except with the consent of the parties or with a Court Order. And whether the Court will grant that Order will depend on the amount in issue, the complexity of the facts in law and the time that the Court expects would be reasonably required. The Court also looks at the financial position of each party, what financial resources they bring to the table and whether they are able to bear a longer discovery. Finally, the Courts will look at the conduct of any party. If there is conduct of one party that serves to delay the examination process or to drag out the examination process, then the Court may relieve against any injustice that may result from that. And the Court goes back to the overriding principle that we talked about earlier with respect to proportionality and I think that’s going to be particularly important or germane to the issue of discovery and the length of discovery.
Another important point on the principles of discovery is that the parties must consult and have regard to what has been referred to as the Sedona Canada principles of addressing electronic discovery. I did a little research into that. There is a document on the web and I’ll put the link on our website. The document entitled the Sedona Canada principles, which is a conference or a project that dealt with the issue of addressing electronic discovery. It’s quite lengthy and detailed however there is an executive summary which is quite helpful. It provides, just to summarize, that electronically stored information is discoverable. Steps to produce that information must be proportionate, again proportionate to the nature of the litigation and the dollar value. As soon as litigation is anticipated, a party must preserve potential electronic information. Counsel and parties are to meet and confer as soon as practical in order to identify, preserve, collect, review and produce electronically stored information. That information must be produced. A party shouldn’t be required, without agreement or a Court Order, to search for or collect deleted or residual electronically stored information. There are procedures set out for searching for information that may be relevant. And there is reference to reliance on electronic tools for searching. And the rule also addresses the costs of producing that electronic information and at first blush, the reasonable costs of preserving and collecting the information is to be borne by the party producing it. So if there is a case that deals with electronic information, just to wrap up this point, a party should address at an early stage and identify how that electronic information is going to be preserved and produced and used in the litigation.
So we won’t get into any more detail because our time is running short. The new rules alter the existing rules with respect to the…
Rick Bickhram: The following categories…
Paul Trudelle: Thank you. Summary judgment, mandatory mediation, listing matters for trials, extends the time with respect to service for motions and applications, deals with issues at pre-trial and how expert reports are to be produced prior to pre-trial, deals with new requirements for expert reports and what needs to be set out in the expert reports, specific proviso that expert reports must be non-partisan and must certify that they are aware of their duty to be fair, objective and non-partisan. There is an amendment to the Simplified Procedure, an increase in jurisdiction to $100,000. There’s also an increase in the jurisdiction of the Small Claims Court which is going to be increased to $25,000. We’ll put a link to the rules commentary and the new rules on our website so I think that it’s required reading for any litigator and should be important reading for anyone who may be involved in litigation in the coming months and years.
Rick Bickhram: Well I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Paul.
Paul Trudelle: Thank you, Rick. I look forward to podcasting again.
Rick Bickhram: And we look forward to hearing from our listeners. You can send us an e-mail at email@example.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Rick.
Paul Trudelle: And I’m Paul Trudelle. Till next week, so long.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.
Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.