Rule 76: Dealing with Objection to a Claim Under Simplified Procedure [video]

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This lecture covers a sub-topic under Rule 76 i.e. dealing with an objection to commencing the court action under the simplified procedure. This lecture provides practical guidance on how to procedurally handle such an objection.

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.

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Welcome everyone, this is Amer Mushtaq from You Counsel.

Today, we’ll talk about a sub topic of Rule 76, simplified procedure rule in Ontario, if you don’t know anything about Rule 76 or if you have not reviewed our previous lecture on rule 76, then I will encourage you to check that lecture before you review this one because we are indeed covering a subtopic in rule 76.

The topic relates to when you have commenced a court action under simplified rules, under Rule 76, and the defendant objects to the court action being commenced under simplified rules and what is it that you need to do. We’ll cover that in today’s topic.

We begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you should contact a lawyer or a paralegal or contact the Law Society of Upper Canada for any referrals.

Well briefly talk about the grounds for an objection, when can a defendant object to your claim having commenced under simplified procedure and what do you do when you’re faced with an objection of that kind. We’ll provide you with some tips, and then we’ll give you some additional resources.

OK, so, briefly speaking, if you want to know the details of the kinds of objections, you should review our other lecture on rule 76, but briefly speaking, if your claim exceeds $100,000, you do have the option to commence it under simplified rules but then the defendant has the option to object to it. So, if your claim is in excess of one hundred thousand dollars, you’ve still commenced it under simplified procedure, the defendant in the statement of defense can say that, “they object to the court action having commenced under simplified rules”. That could be one form of an objection. Other grounds for objections could be that your claim is not for money, real property, or personal property or the claim relates to construct of liens, or family law, or class action or it is a case managed claim. So all kinds of issues may give rise to the defendants objection, but we’re, in today’s lecture, we’re dealing with the objection which is primarily based upon the fact that you have claimed more than one hundred thousand dollars in your claim and you still want it to proceed under simplifiied procedure, but the defendant objects to it, so what do you do?

Essentially, you have two options. Number one is that rather than trying to continue under simplified procedure, you now agree and file certain documents to confirm that your action will continue under ordinary procedure or what you can do is you can withdraw your claim exceeding one hundred thousand dollars because that’s essentially the objection from the defendant and you say to the defendant with respect to certain documents, you are withdrawing your claim in excess of one hundred thousand dollars, so you can continue under simplified procedure. So, let’s look at each objection separately. Number one is the option to continue under ordinary procedure and that’s covered under rule 76.02 sub 6 of the rules of civil procedure. You can Google it and read the rule. Briefly speaking, what that rule asks you to do is prepare, serve, and file form 76A- there’s a specific form under the rule 76 which you are required to prepare, serve, and file with respect to option number one, if you wish to continue under simplified procedure. Let me see if I can find that form for you. OK, so I’ve downloaded this form and you will see it’s a pretty straightforward form it essentially says, “the plaintiff states that this action and any related proceedings are continuing under Rule 76 continuing as an ordinary procedure”. So, if this is what you are doing, you check this box and you serve this document and file it with the court. This part of, the top part of the document, will be very similar to your claim, your pleading, you will put your own name and the defendant’s name here and then the court file number will come here. Similarly over here, you will have the exact same information that you had put in your claim at the bottom and then you will put the defendant’s counsel or defendant’s information here. So, it’s very similar to your claim or any other pleadings, the only part is that you’re making sure that you’re stating which option you’re following... so if you agree to the objection and you’re continuing under ordinary procedure, then this is the box you checked. You’ve prepared the document, you serve it to all parties, and then you file it with the court... that’s what you need to do, form 76A.

When do you need to file this form? First option is, after all the pleadings are closed. If you have reviewed my previous lectures on pleadings, you understand that pleadings are closed when everyone has filed their claims, counterclaims, cross claims, defense, reply... all of those documents which are called pleadings when they are filed that means the pleadings are closed. And so pleadings are closed, you can file form 76A or the other option is that when you are amending your pleadings, at that time of ammendment, you can file form 76A.

Now, one more thing I want to mention here, is that let’s say if you had to commence your court action under ordinary procedure and then at some point during that process either parties agreed that the matter could continue under simplified procedure or you amended your pleadings to bring your claim for under a $100,000 or to comply with the rule 76.02 sub 1... that rule which allows you to continue under simplified procedure... then, in that case the ordinary action can then be continued as a simplified action as long as you fill out forms 76A. So, the same process for form 76A, if you had commenced under ordinary action and then went back to simplified procedure... or another situation could be that you had commenced under simplified procedure, the defendant had objected for some reason, you continued under ordinary action, and then later on if the defendant agreed with you the parties consented or there is another reason you are able to amend your pleadings... or another reason that justifies that the matter can continue under simplified procedure, you can still come back to simplified procedure. So, form 76 is your tool to let the court know which way, under what procedure is your court action proceeding.

OK option number two, as I said, is a straight forward option that you withdraw your claim in excess of one hundred thousand dollars and how do you do that? You serve and file a reply. A reply is a specific document, it’s part of the pleadings, if you don’t know what a reply is, we have a separate lecture on replies... so you can review that... but you prepare a reply and you serve and file it with a court. So, in that reply, you want to use this language or something similar to this language in which you’re basically saying the plantiff withdraws its claim exceeding one hundred thousand dollars to comply with the rule 76.02 sub 1... so, similar language which indicates clearly to the court, to the parties, that you are withdrawing your claim in excess of one hundred thousand dollars. So, again, you prepare a reply, you serve it on all parties, and you file it with the court with the proof of your service. With the affidavit of service.

OK, I have two tips with respect to this. Number one is that, let’s say you have a statement of claim which has a claim in excess of one hundred thousand dollars and you want to continue under simplified procedure, right? And so one way is that you bring about the claim, it’s in excess of one hundred thousand dollars, let the defendant object to it, and if the defendant does object to it, you can withdraw your claim in excess of one hundred thousand dollars. That’s the part that we have already covered. Now, in this tip, what I’m suggesting is that you claim more than one hundred thousand dollars and within your statement of claim, you put a section there, or put a clause there, or put a paragraph there, which states that you’re withdrawing the claim in excess of one hundred thousand dollars. Doesn’t make sense, the way that I’ve stated it, why are you claiming more than one hundred thousand dollars, when you are at the same time, in the same breath next sentence, you are withdrawing the additional claim exceeding one hundred thousand dollars. Doesn’t make sense, but it does make sense in some scenarios and I have used it in those scenarios and I wanted to, sort of, give you that suggestion.

So, let’s say that you are in a situation where you have different heads of damages... let’s say you have a claim for discrimination... and you are claiming let’s say $50,000 for that and then you have another claim for loss of income. And let’s say you are claiming forty thousand dollars for that, then you have a claim... for some sort of tort... intentional infliction of mental suffering, for instance, and you’re claiming another forty thousand dollars. So, you have different kinds of damages and when you look at the total of these... if total of this claim but obviously it’s in excess of one hundred thousand dollars... this one is about $130,000. So, your claim is for more than one hundred thousand dollars, you commence it under a simplified procedure and my suggestion, what I’m saying is that, you put a paragraph that says that you are withdrawing excessive of $100,000, right?

So, in what circumstances does this make sense? It makes sense when, as a plantiff, you are happy to get one hundred thousand dollars from the court, you know, if your target is that you can get one hundred thousand dollars or something close to that... you are OK with that judgment... but at the same time you don’t know which parts of your claim the court is going to agree with and which part it is going to deny. So, let’s say you are in a situation where the court says we’re not buying your loss of income argument... you get zero on that. We’re not buying your tort claim... you get zero on that... and we’re agreeing with your discrimination claim. Now, the value of your claim based upon how the court has decided, is now literally come down to 50K. So, the court may award you fifty thousand dollars if it agrees with the claim and you get a judgment thousand dollars.

Let’s say, if you were trying to do the math to keep this total, under hundred thousand dollars, and then what you did was 40+ 40= 80 and then you brought, let’s say this claim, $20,000... to keep it under a hundred thousand dollars. Now, you get a judgment for twenty thousand dollars because you’re not going to get money for more than what you had claimed. So, you could have gotten $50,000 but you got $20,000 and in both scenarios the value of your total judgment is less than hundred thousand dollars. So, in some circumstances it makes sense to claim more than one hundred thousand dollars, but at the same time withdraw in excess of one hundred thousand dollars so that if parts of your claim are not succeeding, you can still get a better judgment as opposed to getting less money. So, this is a tip, and you can do that... and so one way you can do that is obviously that you prepare a reply... but again preparing a reply, filing it with the court, all of this costs time and money, and you can save all of that by putting a paragraph in your claim whereby your withdrawing it and that makes it easier for the parties to continue. So, that’s one tip, it may be helpful in some circumstances. Second tip you want to keep in mind, is that when you are filing a reply and if your reply is the only reason you are filing a reply is to withdraw your claim, then aside from the language that I mentioned in the previous slide which was that you say the plantiff withdraws the claim in excess of one hundred thousand dollars... you should also have this paragraph in your reply, “unless specifically admitted, the plantiff denies each and every allegation in the statement of defense”... if you have nothing else to say, with respect to the statement of offense, except that you are just withdrawing your claim in excess of one thousand dollars... then you should add that.

The reason why you want to put this in is because if you remember my lecture from reply, when you do not file or serve the reply, then the way way the court believes is that it is a deemed denial of all the allegations in the statement of denfense, right? When you do not file a reply, it’s automatically a deemed denial of everything the defendant is saying in the statement of defense…. but if you do file a reply then you always want to specifically deny the statement of defense allegation. So that’s why, if you’re filing a reply, if you’re addressing other issues in the reply with respect to the statement of defense, than you’re fine. I think this sentence should always be included in your reply... but in this scenario, where you are only withdrawing your claim in excess of one hundred thousand dollars, make sure you add this sentence, this paragraph, as well.

OK, so the resources are no different than what we provided you in the previous lecture which is you can look at the rules. Read rule 76 and you will understand a lot more about what we talked about today... there is a posting from attorney general on their website... and you can check that out with respect to simplified procedure.

So, hopefully this gives you an understanding of the very specific topic where the defendant has objected to you commencing the court action under simplified procedure and how do you go about dealing with it. Thank you for watching and please do provide us with any feedback that you have or any other questions you may have of on this topic.

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