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The Value of Ontario Personal Injury Firms Just Went Up

As recently reported here, Juries are being eliminated for simplified procedure claims, where damages are typically $100,000 or less. This is due to a January 1, 2020 change to the Courts of Justice Act, affecting cases where a Jury notice has not been delivered.

This change will have a noticeable impact on the value of personal injury firms across Ontario – both plaintiff and defence firms. Plaintiff firms will be able to run trials for small cases more efficiently. Defence firms will have more work to do to defend small cases. The reality is that a majority of personal injury claims probably belong in the simplified procedure.

It is anticipated that the use of summary trials will become common for personal injury trials. For plaintiff trial counsel, rather than calling the plaintiff, family and friends, treating experts and rule 53 experts, much of the direct examinations will likely be through affidavits. It may be tricky to get affidavits from some treating experts who may require a summons to testify live. Rule 53 experts will simply attach their reports, C.V. and acknowledgment of expert’s duty to a generic affidavit.

Affidavits, together with the imposition of time limits on direct examination of key witnesses and cross-examinations may really streamline trials. 2-3 week long Jury trials can be condensed into 1 week or less. There will likely be a template order circulating among pre-trial Masters and Judges and the Bar.

What can plaintiff counsel be doing? Move cases to the simplified procedure and request summary trials.

Move Cases to the Simplified Procedure

It would be wise to re-value all cases and move any cases that belong in the simplified procedure out of the ordinary procedure. Keep in mind with the MVA case deductible approaching $40,000, cases with a value of up to $140,000 (and possibly slightly more) are good candidates for the simplified procedure.

Moving a case to the simplified procedure follows rule 76.02(7) and requires the consent of the parties or an amended claim that complies with rule 76.

Please click here to purchase a consent to continue under rule 76 and notice whether action continues under rule 76. (scroll down between mediation and pre-trial)

Details on how to amend a claim if consent is not obtained are here. There would be no good reason defence would object to a claim be reduced to fall into the simplified procedure provided the plaintiff agrees to cap net damages at $100,000.

Request Summary Trials at Pre-Trial Conferences

Re-reading rule 76 will be worthwhile, especially with respect to summary trial procedure. Summary trials can be requested at the pre-trial conference through the trial management checklist.

Please click here to purchase a pre-trial conference brief template including a trial management checklist.

This article is courtesy of the Ontario Civil Trial Manual

Click here for the Ontario Civil Trial Manual

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