Understanding Simplified Procedure

Written on behalf of Peter McSherry

In a recent post, we reviewed the advantages of bringing an employment case in Small Claims Court. Small claims now are not so small, as the monetary ceiling will be raised to $35,000 as of January 1, 2020.

Simplified Rules

There is yet another monetary division within the Superior Court rules. There is a classification of cases that can be brought under what is called “Simplified Procedure” under Rule 76 of the Rules of Civil Procedure. The objective is to try to make the court process accessible to as many persons as possible and to reduce the legal costs in this process. Costs are an important issue. The successful party will likely recover a significant percentage of their real costs. However, the unsuccessful plaintiff employee will also need to pay their own lawyer, absent a contingency fee arrangement, but also must pay a real contribution to the employer’s costs.

Presently the ceiling of these cases is set at $100,000. That limit will change to $200,000 as of January 1, 2020.

What to Expect Under Simplified Procedure

No Trial By Jury

No jury trials will be allowed for cases within this threshold. Jury trials tend to be rare in employment cases but until this amendment, they were allowed by the wish of either party to the case. The motivation of this rule amendment is to minimize costs as jury trials generally take much longer to complete.

If you have a demand for a jury trial, and a case within the $200,000 cap, you can still have such a trial, provided that you start your case immediately and serve the jury notice before December 31 of this year, before the new rules come into effect.

Limitations on Discovery

Discovery is a pre-trial procedure allowing the opposing lawyer the right to examine the other side to the case under oath. This time is currently limited to 2 hours but it will be increased to 3 hours under the new rules.

Speed Up The Process

Under the new rules, once the case starts, the parties must set a date for a pre-trial conference within 6 months from setting the case down for trial. A pre-trial conference is essentially a settlement conference with a judge in an attempt to settle the case before trial. The parties may also voluntarily use a mediator at any time to try to settle the case. This is not yet mandatory in Kitchener-Waterloo but is mandated in Toronto, Ottawa and Windsor.

Trial Management

Before the pre-trial, each party must submit a list of witnesses to the opposing party and the court, as well as the likely time needed for each one, and other time allocations for their case. Significantly, a Simplified Procedure trial cannot exceed 5 days in court from start to finish.

Costs

A limit has been placed on the sum of costs which are recoverable as legal fees from the opposing party. That sum is now capped at $50,000. Also allowed are disbursements of $25,000. These are payments to pay for sums such as expert fees, transcripts of examinations of discovery and similar out-of-pocket costs. The latter sums are usually in the range of $1,000 but expert fees can be considerable. These again are sums recoverable from the unsuccessful party.

Take Away for Employees

These are significant revisions to the court rules, all well-intended to speed up the process and reduce costs. This is good news for all employees thinking of suing for, say, wrongful dismissal, as the increased cap will allow more claims to be brought under the Simplified Procedure process, saving parties time and money.

Get Advice and Know Your Rights

Stay up to date and understand your legal rights. Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation