A civil action in Ontario may be commenced under the Ordinary Procedure or the Simplified Procedure. Many people are unaware of the simplified procedure, its advantages, and disadvantages. This lecture broadly explains the simplified procedure in the civil courts in Ontario.
This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP. Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals. Subscribe today to learn more.
Show Notes:
https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/
Lecture Slides:
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Machine Transcription:
Welcome everyone this is Amer Mushtaq from You Counsel.
A lot of people in Ontario understand that when you have a claim for twenty five thousand dollars or less, you go to small claims court in Ontario, if the claim is from more than twenty five thousand dollars you go to Superior Court of Justice Ontario. What a lot of people don’t know is that within the Superior Court of Justice, there is something called Simplified Procedure and there is another process called Ordinary Procedure. Both processes have differences, both processes have advantages and disadvantages... so, in today’s lecture I will talk about simplified procedure which is contained in Rule seventy six of the rules of civil procedure.
Before we begin, we’ll start with our usual disclaimer, that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or a paralegal or contact the Law Society of Upper Canada for any referrals.
We’ll cover topics such as when is commencing a court action and simplified procedure mandatory... when is it optional... what are the circumstances in which you cannot commence a court action in simplified procedure. How do you go about electing a simplified procedure and in your court action what are some of the major differences between the ordinary procedure and simplified procedure.. .we’ll give you some tips about choosing which one is better for you we’ll provide some additional resources.
When is the simplified procedure mandatory? These are the conditions. Your claim should be less then hundred thousand dollars or less and this excludes interest and costs... so, your case is for one hundred thousand dollars or less and your claim is either for money or for real property such as a land or personal property. So, if you meet this criteria which is hundred thousand dollars or less claim for money or real property or personal property then you are required to commence your court action in the simplified procedure and if you don’t... there may be cost sanctions against you even if you are successful at the end of trial, if the judge finds that this case should have been commenced under simplified procedure and you commence it in the ordinary procedure, the judge made award cost against you or may not even award cost to you even if you are successful. So, this is mandatory. You must keep that in mind.
When is the simplified procedure optional: if your claim is for more than one hundred thousand dollars and you meet the criteria for money real property or personal property, you can still commence a court action under simplified procedure …this point is important. Even if your case is for more than one hundred thousand dollars, you can still commence and simplified procedure but what happens is if you commence a claim which is more than hundred thousand dollars, under simplified procedure, the defendant has the option to object to it. The defendant may say that under the rules, you must have one hundred thousand dollars or less in the claim, you have more, “I, the defendant, am objecting to you commencing the case in the simplified procedure”. So, when the defendant objects and then that objection comes in the statement of defense... when the defendant objects, then you have two options either you 1) withdraw your claim which exceeds one hundred thousand dollars. So, that portion of the claim, in other words, you are limiting the money value of your claim to one hundred thousand dollars, or you can say I will continue this action in the ordinary procedure and if you continue in the ordinary procedure you have a form that you need to share and file. So, that there is a separate discussion that we’ll have on that form but you can commence a court action of four hundred thousand dollars or more than one hundred thousand dollars in simplified procedures as long as the defendant doesn’t object... and this point is important because there may be strategic reasons for you to commence your court action under simplified procedure even if the value is more than one hundred thousand dollars... there may be circumstances where the defendant may not care, there may be circumstances where the defendant may not notice that you have commenced in simplified procedure. So, you can benefit from the advantages of simplified procedure, even if your case is for more than one hundred thousand dollars as long as the defendant does not object.
Now what are the circumstances? What kind of cases are there in which simplified procedure is not available? Number one... class proceedings... if your matter belongs to a class proceeding action or application, you cannot commence it under simplified procedures. If it relates to construction lien actions there’s a separate legislation for that called construction lien act and except in those circumstances, you cannot commence a court action under simplified procedure and there is some exception with respect to trust claims that we’re not discussing today. If your matter relates to family law issues, you cannot commence under simplified procedure. If it’s a small claims matter, obviously, twenty five thousand dollars or less, you cannot commence under simplified procedure and if it’s an application and not a court action you cannot commence under simplified rules.
Now how do you go about electing simplified procedure? First of all, keep in mind that when you commence a court action and you do not elect simplified procedure... by default, the matter goes into ordinary procedure. So if you don’t do anything, if you don’t do the election, then the matter is going under ordinary procedure. In order for you to get the simplified procedure, you have to take certain steps. Step number one you will have to write this language. This action is brought against you under the simplified procedure provided in Rule seventy six of the rules of civil procedure you have to write this down and where do you write this down? Just about the heading where it says claim, so, just above that in capital letters you write this down, very clearly... that this action is being commenced under simplified procedure. So, that’s step number one. Step number two, you correctly fill out the information for court use form which is a form that you filed with the court along with your claim. We have two separate lectures, one for the statement of claim and one for information the court hears form that are already posted if you want to know more about these two topics by all means check those lectures out.
So, what are the main differences between ordinary and simplified procedure? We’ll discuss some of the main differences. Number one the simplified procedure limits the number of hours that are available for oral discovery. In an ordinary procedure, you have up to seven hours to examine each party, so, for every party you can have seven hours to conduct your oral examination for discovery. In simplified procedure, those number of hours are limited to two. That’s an important difference with respect to oral history. Number two, you do not have the option of conducting written discoveries under simplified procedure which is an option available under ordinary procedure. Also, under simplified procedure, you cannot conduct cross-examination on an affidavit on a motion which is under Rule thirty nine point zero two you are allowed to do that but for simplified procedures you are not allowed to cross-examine on an affidavit on a on a motion. Similarly, you cannot cross-examine a witness for a motion under Rule thirty nine point zero three which is allowed in the ordinary procedure. Also, before you go to trial, so at the time, when you are serving your affadavit of documents... under simplified procedure, you are required to disclose the names and addresses or contact information of all persons who have knowledge of the matters in the claim... of occurrences, of the matters that are in the claim, they have personal knowledge off. So they have potential witnesses to this court action. And finally you can conduct you can ask for a summary trial in simplify procedure. And a summary trial is sort of a fast paced trial in which part of your evidence can be provided through an affidavit and some part can be provided orally. So, it’s generally speaking, if it’s a summary trial, then it and it takes much less time than an ordinary trial. So these are some of the major differences between the ordinary procedure and the simplified procedure... and if you notice that by limiting the number of hours for the discovery for oral discovery and by disallowing the cross examinations and affidavits... by requiring you to disclose the names of individuals who have knowledge of the occurrences, by giving you the option of summary trial... what the court system is allowing is that to allow you to move your matter cost effectively and speedily in the system That’s what the underlying purpose of these rules. So, once you know the differences between the ordinary and simplified procedure and you know when you must commence and when you have the option.. then it’s really a strategic decision. How you go about collecting the procedure, when you do have that option. So the strategic decision is based upon which side of the fence you are on. Are you the plantiff? Are you the defendant? Is it in your interest to move your matter speedily or is it in your interest to take advantage of the ordinary procedure and hope that the matter drags on a bit based upon the choices that may be available under the rules? Is it to your advantage that you want to move this matter forward cost effectively or would you prefer to have more cost to you and the most cost to the other side and that gives you some advantage with respect to the litigation. So, it’s a strategic decision whether you want less cost or more cost. Also, what is the value of oral discovery? Is this a case where you actually need up to seven hours to examine the other side in oral discoveries or it doesn’t matter to you? Is two hours sufficient? Or you maybe in a situation where you have sufficient documentary evidence that you don’t even need oral discoveries. I do a lot of cases in which, based on the evidence that’s available to my client, that I don’t need oral discoveries and we move directly to trial stage and then move the matter even faster and cost effectively. So, the value of all discovery needs to be in your mind and also keep in mind that two hours when you are chit chatting with your friends... two hours is time that goes in a blink, but when you are examining some some person for two hours where you have specific questions to ask and all that person is allowed to do is simply answer those questions and nothing else... two hours is a very long time. You can investigate someone’s entire life in two hours, it’s such a long time and obviously seven hours is significantly longer. So, you want to know or clearly understand, what is the value of your oral discovery and is two hours sufficient in your case? Or would you require seven hours and, in some cases, you may require seven hours and that’s fine.
What is the value of summary trial? Is your case sufficiently simple that the evidence can be presented by affidavits and then you can still get a fair trial? Then you proceed with a summary trial, ask for it, it is subject to the agreement on the other side. So, overall, what you must understand is simplified procedure is generally a speedy process. You can get to trial pretty quickly and simplified procedure by spending less amount of money. In a lot of my cases, where we’re proceeding with simplified procedure, we’re able to get to trial within a year... which is kind of unheard of in the legal world but it’s possible. Whereas in the ordinary procedure, it takes much, much, longer. So, it’s a speedy process, it’s cost effective, and you should take advantage of the process if that’s what is in your favor.
There are some additional resources. Obviously, you should check the rules of civil procedure, that provides rule seventy six and by all means read the rule. We have not exhaustively covered it. Please check that out and in the future lectures, we’ll sort of taken apart piece by piece and explain more about different aspects of Rule seventy six. Also, check out this resource, that has been put by the Minister of attorney general which provides a fact sheet about simplified procedure. A lot of the information I’ve already covered in this lecture... but by all means check that information out. Hopefully this does give you a good sense of what the simplified procedure is, if you didn’t know it already and gave you some tips about the advantages and disadvantages of choosing which procedure you want to elect for your specific case. Thank you for watching and please send us your feedback.
