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Welcome everyone, this is Amer Mushtaq from You Counsel.

Today, we’ll talk about an important topic that deals with the time period within which you can commence a legal proceeding in Ontario, if you believe that you have suffered some sort of harm. The topic is important because if you do not follow or if you do not commence your legal proceeding within the time period that you are allowed, you may not be allowed to proceed with your action, or you may not succeed in your action, simply because of the delay. So, you may have a strong case on the merits of it but just because you did not commence the court action within the time period, you may not be allowed to proceed with your claim... that is why the topic is important and we’ll try to explain some of the fundamental concepts in today’s lecture.

We begin 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.

In today’s discussion, we’ll talk about what is the statute of limitations... we briefly explained to you in the introduction. What is the purpose? Why is the statute of limitations exist to begin with? What is the Ontario legislation that deals in civil action, civil matters in Ontario with respect to limitations period? What is the concept of discoverability? I’ll explain, this is an important concept, so, you need to have some understanding of this concept and I’ll try to explain it by way of an example. What are some of the exceptions to the limitations period and that’s also very, very important for you to understand. And then we’ll talk about the tolling or suspension of the limitations period, is it possible and if it is how do we go about doing that?

Statute of Limitations, as I said, it provides the maximum time... it allows the maximum time after an an event has occurred within which a legal proceeding maybe commenced. So, the last one I’m saying is that, the limitations, the statute of limitations could be a complete defense to a claim... meaning you have a valid claim against the party and you want to pursue it, but simply because you delayed your commencement of your legal proceeding and went beyond the limitations period, you may not be allowed to proceed.

I can give you a very small example, let’s say you... someone borrowed money from you and the person said that person will return that money on such and such date... and after that date had expired, if you did not seek the return of the money or you saw the return of the money and the person refused to pay it back, then you have now a claim against that person to go in court and get a judgment against that person for not returning the loan or the money that you had lent. So, you can not wait for years and years and years to commence that court action and get a judgement. There is a time period within which you can go to court, ask the court that you want a judgment against that person, so that that person may be ordered to give you the money back and if you do not do that within a time period, within a specific time period which is covered under statute of limitations, then that person that defendant can simply stand up in court and say that, “your action is statute barred, you are out of your time and therefore, your matter should not be heard or a judgement should not be given against that person”. So, that’s why the statue of limitations is an important issue if you have a potential claim.

What is the purpose? Why do we have the statute of limitations, in the first place? The purpose is really to protect the defendant’s rights. And also by imposing limitations period, the judicial system requires the plaintiffs to pursue with reasonable diligence, if they have any claims. They don’t want people to sit on their claims for years and years if they have a valid claim or if they want to pursue it in the judicial system. So it imposes some onus on plaintiffs to pursue it with diligence and also it protects the defendants because if a significant amount of time has passed, the defendant may lose the necessary evidence that they need to defend themselves. And so, in that instance, there is a possibility that because off the loss of evidence, there’s a potential that the court may may grant unjust remedies that may not be appropriate.

In Ontario, the limitations period is defined in the limitations Act 2002 I have provided the link here, you can Google it, and check out the limitations act. I’ve opened it right here and it covers all the topics relating to limitations within this act. So, by all means check this litigation limitations act and get a sense of what kind of limitations are provided in this legislation. Now, Section 4 of the limitations act, provides a basic limitation period of two years. Let’s look at Section 4 let’s quickly read it, “unless this act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”... that’s called basic limitations period and it covers it covers a variety of legal claims... but there are exceptions as I mentioned in the beginning, so, you want to be very careful whether to understand whether your specific claims fall under the basic limitations period or it falls under a different limitations period and so, you need to understand that.

We talked about the concept of discoverability... let’s look at where this concept of discoverability is coming from. It’s coming from the very section four that I’ve just read and the last sentence towards the end it says, “the day on which the claim was discovered”. So what does that mean? When was the claim discovered, how do you determine when the claim was discovered and that concept is defined in section 5 which we’re going to read and then I’ll try to give you an example and explain what this concept of discoverability means. “A claim is discovered on the earlier of”... number one or paragraph A... “the day on which the person with the claim first knew that the injury loss or damage has occurred [or had occurred] that the injury loss or damage was caused by or contributed to by an act or omission and that the act or omission was that of the person against whom the claim is made and that having regard to the nature of the injury loss or damage or proceeding, would be an appropriate means to seek to remedy it, and the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters required to in Clause A”.

So, I will explain this to you- sort of- try to decipher it. The section is self-explanatory, but I’ll try to decipher it, so, that you can understand it in simple terms. Obviously, you need to know that the injury loss or damage has occurred, right? Secondly, the injury loss or damage that has occurred is because of an act or failure to act on part of somebody or someone and some party... and then that is the party whose failure or failure to act or whose action that you are alleging is the one who’s the defendant, right? So, that’s that straightforward and the fourth part is that commencing a court proceeding is the appropriate remedy... which is which make sense... and the paragraph sub B is important. This assessment of whether the injury has occurred, who has caused that injury, are you suing right defendant... it is an objective analysis, it is not a subjective analysis. So, what it does is, it puts an objective analysis in subsection B... basically saying that we will put a reasonable person in your shoes and then decide whether when was the first time that the person knew that they had a claim, right? So, that’s the discovery. So, the idea is that you can’t have every person subjectively stand up and say, “I did not know that the injury had occurred or I did not know that such and such person had caused this injury”... it is an objective analysis. So, that’s important.

Then, subsection 2 of Section 5 is also important, a person with a claim shall be presumed to have known of the matters referred to in clause 1A, on the day the actor or omission on which the claim is based took place, unless the contrary is proved. So, there’s a presumption here, that if you are the plaintiff, you knew on the day when the injury occurred, that you had a claim and the court is going to pursue that unless you can prove it otherwise.

So, there’s a basic assumption here... a bit of a complicated language... let’s explain that by way of an example, some of the aspects of this section so you can get an understanding of what it means. So, we’ve given the example of a broken leg vs. a lung disease. You get into a car accident, you know, let’s say yesterday and you end up having some like, you know, leg injuries and when you go to the hospital you find out that your leg is broken... and the broken leg was caused by- sort of- the failure or the negligence or an act of the other driver in another vehicle. So then, what you are looking at is, in terms of the discoverability, you have now discovered that the leg is broken, you have discovered that the leg is broken because of the negligent driving of a driver in another vehicle and so, and that is the person and that defendant is the person that you are suing... the driver or the insurance company or whoever is liable for that but that is the person the correct person that you are suing. Then you have, so if you have that knowledge, if you learned all of these things today you came out of the hospital or you went to the hospital and you discovered today... then you have a claim starting from today. That’s when the discoverability of your legal claim has happened, so, that’s the case of broken leg example which is sort of straightforward. Let’s take an example of lung disease and the example that comes to my mind is by use of asbestos, so, people who worked in these factories which were surrounded and they were surrounded by asbestos and they inhaled asbestos and they got some lung disease later on their life. So, the question then becomes when when did you discover that this person had a lung disease, it may not have occurred, you know, many years from that time when the person was working in a factory. So, what day or what what was the day when the actual injury or harm took place? So, it may have taken place a number of years after the exposure to asbestos... problem number one.

Number two, how do you know it was because of an act or ommission when people were suffering lung disease because of asbestos, there was not enough medical research available that indicated that because of asbestos, the lung disease was caused to those those individuals, right? So, the cause or the act or the omission was not clear, so, it became, it was discovered later on. So, your knowledge of what caused that injury or harm was discovered maybe later on in the time period... and number three are you suing the right defendant? Right, so in this situation in the lung disease situation, the discoverability does not remain a straightforward matter, right... and so, that’s why if you were unable to discover it fifteen years ago that asbestos caused a long disease and the defendants that you’re suing are the ones who were behind that act or omission... then you would not have been able to commence the claim. So, that’s why the discoverability is important that a reasonable person should have discovered that he or she has a claim, right? So, in most cases the discoverability is straightforward: you loan somebody money, they were supposed to pay back to you in a certain date, they did not, you know that your loan is unpaid, you have a claim against them. You get into a car accident, you have a broken leg or a broken arm, you know that you have a claim against and that is discovered. You work for an employer, the employer has not paid you your wages on time, it was supposed to pay you on a monthly basis, and in first of that month has arrived, and you have not received your money, you have a claim for unpaid wages. So, in a lot of cases discoverability is a straightforward matter, but in a lot of cases it becomes very, very complicated.

Now to complicate matters further, there are exceptions to basic limitations period and I’ve given some examples. Example number one is that other legislation may show or may set out a different limitation period, for something else... and the common example is human rights code. In human rights code, if you have a human rights claim... the limitation period is one year, not two years and so if you have to bring a human rights application or an action simply based on human rights violations, then you actually have one year from the date of that injury to commence your legal proceeding. Now these exceptions are also covered in section 2 of the legislation.

So let’s look at Section 2 and it lists a number of other legislations, so, this act applies to claims pursued in court proceeding other than- you know- real property limitations act, judicial review Procedure Act, provincial offenses, so on and so forth, Aboriginal rights have different limitations period and whatnot. Sexual assaults you will see further down in the same legislation, in the limitations period, the sexual assaults have no limitations period. So, if someone has suffered sexual assault, then they can commence court action even beyond the 2 year basic period. Minors have no limitations, period and so there are specific sections that deal with minors in this legislation. Incapable persons who are legally incapable, they have no limitations period during the time that they’re incapable. Then what you also want to know is that there may be separate limitations periods against crown or municipalities. So, for instance, if you are in a car accident that was because of a pothole on the road and the road was not properly maintained by the municipality in which you’re driving... your probably... you don’t have two years, period. I think depending upon where you are, it could be as low as one week or two weeks within which you have to commence your court action. So, the so the limitations period vary significantly, so, you always want to be careful about the exceptions, so, that you are clear that your specific injury falls into the limitations period. Now, let’s talk about tolling or suspension of limitations period, quickly. This is dealt in Section 22 sub 3 and by all means, check it out. What this section 22 sub 3 allows, is that it allows the parties to suspend their limitations period or extend their limitations period by agreement... and when does it happen? When the parties are trying to find for example, non-judicial ways, to resolve certain issues. Let’s take the example of the friend who had borrowed money from you and he has not paid the time that he has promised to pay, when you threaten that person, and indicate that you wish you are going to commence a legal proceeding against that person to get a judgment against that... you may have some sort of, bilateral discussion, where the person may say has just found a job and he needs some time to save some money and pay you back and can we suspend the limitations period? So you can enter into an agreement whereby you can suspend the limitations period for a certain time period but then again, the suspension of imitations period by agreement in itself is a bit of a complicated matter and the courts have specific requirements on how you go about suspending that limitations period, so, you want to be careful that even when you’re suspending or tolling the suspension the limitations period you’re taking the right steps.

So, what is the message from this lecture? You must always consider limitations period first... as soon as you believe that you may have a claim against someone, the first thing you want to make sure is that are you within the time you can commence the legal proceeding... because if you’re out of the time period then you have a huge problem and then the concept of discoverability and all of the other things that I’ve talked about... they are relevant.

So, if you’re unclear about anything... you should consult a lawyer... I can tell you by way of experience that I have been consulted on limitations issues that were so complicated that they required many, many hours of research for me to be able to give my client a valid or reasonable opinion, in terms of whether they have a claim within the limitations period or not. So, it could get very complicated and you want to make sure that you are on the right side of the law. Just a question for you, for food for thought, we have two years basically imitations period... do you think that’s fair and I contrast that by ancient Greeks who had five years of limitations period and this is centuries ago, except for homicides and so why do we have two years’ limitations period? Consider the issue that in today’s day and age with the technological advancements that we have... the chances of finding evidence or keeping evidence is a lot more than ancient Greek. We have emails, text messages, documents, all these kind of things tape recordings, Google, Facebook, all these evidentiary pieces that may show or may be able to prove someone’s case or may allow the defendant to disprove the case. Is two years really an appropriate limitations period? I would love to hear your comments on that and if you have any questions or other comments or feedback a love to hear from you thank you for watching.

Show Notes:

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Lecture Slides:

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Machine Transcription:

Welcome everyone, this is Amer Mushtaq from You Counsel.

Today, we will talk about performance improvement plans and what are employees’ rights when they are issued with the performance improvement plan. This question was asked of me a few times in the last month or so, and I thought it will be a good topic to cover in these lectures.

We’ll begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact an employment lawyer.

Performance improvement plan, what is it? You may have seen it in your work place, you may not have, but a performance improvement plan usually has a few components. It is a plan that is put in place when an employee is not meeting the expectations of his or her job, or duties, or targets... and the components that are usually part of the performance improvement plan is, first of all, the areas in which the employee must improve his or her performance. That’s clearly identified.

Secondly, there is a time frame that is established, usually 3 months, sometimes four or five months. During which time, the employee is given the opportunity to improve performance and meet the expectations that are required. There is usually some ongoing supervision or monitoring... often times, there is a bi-weekly meeting session, one to one meeting session, with the supervisor where the supervisor will go over the performance of the previous two weeks, provide his or her input, and suggest some of the ways in which the employee can further improve performance... and also, the performance improvement plan usually has some sort of support mechanism. If there is need for an employee to get additional training, that may be part and parcel of it... if the employee needs one to one coaching on certain aspects of his or her work, then that may be in place. So, these are not, sort of, legal requirements of a performance improvement plan... there is no such thing... but these are, sort of, the general components of a reasonable performance improvement plan that may be put in place.

Let me give you an example of how these performance improvement plans, are sort of brought in, the most common example that comes to my mind is with financial institutions or large banks. If you are an employee whose target is to, let’s say, to sell 20 credit card applications in a week and you are not meeting that target you may be called into a meeting and then put on a performance improvement plan where the employer and the supervisor will sit down with you and discuss why you are not meeting that target, what is the expectation, and what are some of the ways in which your performance could be improved. And the performance improvement plan may also indicate in that plan, that if you are unable to meet those targets, meet the expectations, in the timeframe of the performance improvement plan then what is the possible outcome... whether your employment can be terminated or not. So, that’s one example, there could be other areas of work where you are employed and you get a performance improvement plan and you have to deal with it.

I want to briefly tell you about the difference between a probationary period and a performance improvement plan. Usually they are two, sort of, separate entities. So, we want to talk about it. Probation, as you may know is usually set at the outset of the employment. So, once you’re hired, your employment contract may say that the first three months or six months of your employment may be considered a probationary period during which the employer may consider whether you are the right fit for the job that you’ve been hired... whether you have the skills and abilities that you said in your resume and interview that you have, to accomplish the work that is being passed and so, the employer has the right to assess that during the probationary period... and usually, it’s the employer’s discretion at the end to decide whether you should get continued employment or not. So, probationary period usually does not have a detailed plan. It is as simple as that. There is a time frame set and then the statement is that you will be assessed during that time whether you are able to perform your job or not.

So, I say probationary period is set usually at the outset of employment, but I’ve seen examples where during the employment the employer may put you on a probationary period and that often happens when there is a change in your role. So, let’s say if you’re working in payroll department and now you’re going to accounts receivable department and your job function has changed significantly and the employer, or you get a promotion... and so the employer may put you on a probationary period during employment, basically to assess whether you are capable of performing the new role... but it is not common that once you have passed your initial probationary period at the time of hiring and you have been working, you know, for a few years or for a few months in excess of your probationary period... that you are put on probationary period again, that’s that’s very uncommon, but it can be done. There is no law that prevents the employer from doing it.

So, that’s sort of the probationary period and then performance improvement plan, as I mentioned earlier, is usually provided during the course of employment... it’s supposed to be, generally, a very detailed plan because the idea is this is a plan that is being laid out to support the employee a) forewarn the employee that the performance is not being matched and b) lay out a plan where the employee gets some support in order to get to where the targets are.

I have seen cases in which an employee has been employed for twenty years. Same job, same function, and then all of a sudden, the employee has been put on a performance improvement plan…. usually, you know, very uncommon but it has been done... I have seen it happening and for a variety of reasons, some genuine, some disingenuous. So, you have to be careful about the performance improvement plan when you have been performing your duties appropriately... there hasn’t been any change in your performance and all of a sudden, either because of the restructuring in your workplace or because of the change in command... you get a new supervisor, a new manager, all of a sudden, targets have shifted and you end up getting on a performance improvement plan. So, you have to be watchful of the performance improvement plan.

So, what are some of the consequences? If you are put in a performance improvement plan, what happens, obviously, step number one, is that you end up meeting those performance targets and the paper has concluded so everything is good. Number two, there is no improvement and the employer believes that there may be some opportunity for you to benefit from an extended P.I.P. that may help you to get to the targets that are required and so you may get an extension in your P.I.P for another 3 months or so. Let’s say, there’s no improvement, the employer may decide to terminate you on a without cause basis... as you know, from previous lectures, on a without a cause basis, means that the employer can terminate you but will have to provide you with your termination, severance Rights, or common law termination rights if they’re applicable to you as an employee. And number four is that, if there’s no improvement, the employer may terminate you on a with cause basis. Meaning you will not got any rights on termination and severance. This fourth aspect is the one that worries me most... if you are an employee, because in this situation you end up losing all of your termination rights. So you want to be careful that you don’t want to end up- even if you’re on a performance improvement plan- you don’t want to end up in the fourth scenario here where your dismissal could be with cause.

Now, I just want to clarify that, in most circumstances, where performance is an issue... the termination with cause is not an appropriate remedy. And if an employer chooses to terminate you with cause, that may not be upheld by the court and that’s in the majority of the cases... but review of whether the employer has the right to terminate you on with cause or without cost basis is a very fact-specific review. It will vary from your circumstances, to another person circumstances... so, there’s no sort of general law here that says that if your performance is an issue you cannot be terminated with cause... that’s not what the law is... so, it is really based upon the specific circumstances of your case, but I want you to keep in mind is that in the majority of the cases and in a large majority of cases... performance is really not the grounds for an employer to terminate you with cause.

It usually falls in without cause category and one of the reason why that happens is because the general expectation is that when an employer is performing it’s due diligence in hiring an employee... they have the opportunity to look at your resume, they have the opportunity to interview you, call your previous references... so, there is an opportunity for an employer to assess before hiring you whether you will be a suitable match or not and whether you’ll be able to perform your duties... and later on, if it turns out that you are not the right person, then the law generally expects the employer to terminate you without cause because you took that position in good faith, in hopes that you will be able to perform and the employer hired you in good faith, so that you will be able to perform. So, it’s not a situation where you were negligent or you acted in a way that was contrary to the job that was provided to you... you just couldn’t perform it and so, then the option really is without cause termination. But in some situations, termination with cause, can be established or at least claimed by the employer... and I have seen circumstances as I mention. I’ve had cases in which it was a long term employee who had performed fine, for a course of a decade or even longer and all of a sudden, he was put on a performance improvement plan because the employer had now put in unrealistic targets which could not have been met by the employee and so, the employer was trying to use that as grounds for dismissal for cause... and so we had challenge that and fight that.

So, in the next slide, what I’m going to tell you is what are the steps that you will take to avoid this fourth scenario, so that you’re not getting caught in this situation where the employer may claim dismissal with cause. So, what do you do? First step is if you believe that the performance improvement plan is unfair... whether it’s unfair because your performance had no issues and you believe there is no issues and it is unfair for the employer to say that you have deficiencies in your performance... then you must send in writing... so verbal dissent is not sufficient. You must send an email to HR or to your boss saying that you do not agree with performance improvement plan... it’s unfair... or the performance improvement plan may be unfair because of the targets that it’s putting in place. Those may be unrealistic and cannot not be done.

Common joke that goes around is that you should never meet your targets because if you do meet your targets, the targets are going to go up next year. So, it’s a scenario which is happening more and more, in many work places because of the challenges in economy. The employer is trying to improve their business or keep it profitable by, you know, increasing their targets, making, you know, fewer employees to do more work and sometimes that target becomes reasonable and unrealistic. So, you must dissent in writing.

So, when you’re dissenting in writing, it could be as simple as one sentence saying that, “I believe the performance improvement plan is unfair and I do not agree with it” and that may be sufficient or you can provide a bit more explanation as to why you think the plan is unfair... but you don’t need to get into a lot of detail as long as you put it in writing that you dissent, you disagree with the performance improvement plan and that your goal is you’re open to the idea that you sit with the employer and discuss this... then you leave it up to the employer to figure out whether they would like to have a meeting with you or a discussion to that effect. So, that’s the dissent in writing and the reason to do that in writing is because you want a documentary trail... where it’s not your word against the employer or the HR person, but there is a document that indicates that you disagreed with that.

Now, I get often this question from employees that they are very reluctant to dissent or say anything negative about the performance improvement plan because they’re concerned that they may end up losing their job at this stage, but my advice always is that you must decide if it’s unfair... even if you believe that employer will end up terminating you because once the performance improvement plan is in place, you are already in the direction of going to termination anyways. The train is leaving the station and so, you have to dissent it because if you don’t, then implicitly you are acknowledging that you have those deficiencies in your performance and then later on if you are dismissed... regardless of whether you improved or not, it will be hard for you to argue at that stage that the performance improvement plan was unfair because the employer will argue that you’re now complaining only because you couldn’t meet the targets. So, I think, whether you believe that you will be terminated just as soon you have dissented or that dissent is in place but you may be terminated later down the line... I think the smart approach is to do the right thing and dissent it at that time and if the employer chooses to terminate you, then so be it... your termination rights are preserved.

So, it’s the second part that I want to mention, is that you must document everything because performance improvement plans can be tricky... there’s a lot of detail in it. What are the targets? How many other people are meeting those targets? Are you the only person who’s not meeting those targets? Why are the targets unrealistic? How many calls you have to make to get one client for a credit card application and so on, and so forth.

So, the more you document this information about what is happening, why the performance improvement plan is unfair, what is happening during the time when you’re in performance improvement plan, the better off you will be because you will have more evidence, if this matter ever goes to trial... but if you don’t document it, then you’re relying simply on the employer’s documentation to prove your own case... which is usually difficult.

A third part that you want to remember is that you do want to comply in good faith. So, even though you are dissenting, you’re protesting, that’s not fair. After after having documented and lodged that dissent, you must comply in good faith. So, on one hand, you’re saying it’s unfair but on the other hand, you’re saying I’m going to try it in good faith to see if the performance challenges are met, even if they are unrealistic and I’ll try it... and that’s important because that will put you in good stead with the judge who will be reviewing your matter in trial.

So, the most important thing you want to carry is that if you are getting an unfair performance improvement plan, you must respond, you must voice your dissent, and have that documented... and you want to make sure that you have documentation in place. Document stuff at your home, write it down in your diary, and make sure that you don’t copy any confidential information from your employer... but at least document what’s going on as your own log at home and not on your work computer. Then, you want to make sure that your rights are preserved, if there is a dismissal, so, that you get a without cause dismissal and you get your termination and severance rights. So, those are the things to keep in mind with respect to performance improvement plans. If you have any more questions, any comments, please feel free to contact us and we look forward to seeing you in the next lecture.

Show Notes:

https://canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html

https://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/fact_sheet_simplified_procedure_76.pdf

Lecture Slides:

Coming soon …

Have a question about this video?

The team at Formative LLP has created a free discussion forum where anyone can post a legal question and get feedback from the wider audience of self represented litigants.  Join the discussion today!

Machine Transcription:

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.