Toronto Injury Lawyer Blog
On April 1st, the Ministry of the Attorney General released its Civil Rules Review Consultation Paper. It’s 122 pages in length, making it either the most elaborate April Fools prank on litigators I’ve ever seen; or something poorly thought out on many levels, including its release date.
If any of these changes are adopted, they are game changes in a bad way. It’s clear to me that the people behind these proposed changes aren’t the ones on the front lines of personal injury litigation; or aren’t listening to those who work on the front lines who see cases day in, day out.
These changes, if adopted will present significant barriers to access to justice for the general public. They will also drive litigation further towards AI in a bad way, thereby taking the human element out of litigation. Which is crazy to think given that the ultimate end of a case is trial, which is entirely based on testimony from people (not AI machines or algorithms). The proposals place a lot of emphasis on pre-litigation forms; which creates unnecessary make work projects for litigants. These are artificial barriers to litigating matters which should not exist. They are being proposed simply because the Courts can’t handle the volume of cases. These forms are a backdoor way to preventing litigants to advance their claims.
Here’s something I liked about the proposed rule changes: it makes it easier for lawyers to get off the record. Instead of wasting the Court’s time with motions to get off the record, the Working Group proposes that a lawyer should be entitled to requisition an order to be removed as counsel of record when the following preconditions (the “Preconditions”) have been met: (i) there are no deadlines (agreed upon or imposed by the Court or the Rules) or Court attendances within the next 90 days; (ii) there is no trial or dispositive hearing scheduled to be heard within the next 180 days; and (iii) the client is not under a disability. The requisition will need to be made on notice to the client and opposing parties. The lawyer seeking to get off the record will need to certify that the Preconditions have been met. That’s great! Saves time, money and Court resources. This change ought to have been adopted 20+ years ago. The crazy thing is that a lawyer can get appointed as easily as filing a Notice of Appointment, or filing a Statement of Claim or Statement of Defence, or Notice of Change of Lawyer. But, if a lawyer has to get off the record, there’s still a whole song and dance that needs to go with it. The proposal is that the song and dance eliminated with the filing of a simple form (Can you hear the AI Bots grinning!?!)
Here is where it starts to get weird.
The group has recommended completely eliminating examinations for discovery. The one really human part of personal injury litigation is being proposed to be stripped away completely; and replaced with…forms! Lots and lots of more pre-populated forms. Can you hear the AI Bots grinning?!?!
Examinations for Discovery may not be important in commercial litigation cases. These matters often involve sophisticated and experienced litigants. Commercial litigants are often well coached, and have been through the discovery process before.
Commercial litigation matters boil down to a few critical documents; followed by a mathematical calculation of the business losses, which are dealt with by some sort of valuation expert. The likeability and credibility of the parties; while valuable; isn’t as critical as it is in a personal injury case.
Here is the truth. In personal injury cases, both Plaintiffs and Defendants lie or exaggerate the truth! Not all of them. But certainly some of them do. This only becomes evident at discovery. The lawyers quickly find out if the party is a liar, a cheater, or a faker. It does not come out in the standard forms or on the paperwork.
When a party lies, or is found to be dishonest, or simply not likeable or credible, it will impact the way that the parties assess the claim. The more likeable a party, the more likely a Judge/Jury will accept their version of the events and sympathize with their claim.
Eliminating discoveries takes out a big tool for all personal injury and insurance defence litigators. It’s not like examinations for discoveries took up Court time or resources. They were held outside of Court and had nothing to do with the Courts themselves. How can any lawyer have any reasonable assessment of how a party will perform under oath at trial; if they’ve never given any evidence about the case under oath at all before the trial? The examination for discovery was a great dress rehearsal for that.
The elimination of the examination for discovery also takes away the lawyer’s tools at discovering the case itself. Do you really trust the other side to be forthwith and upfront about what documents they believe to be relevant in the case and get produced to the other side? Is it not in their best interest to hide those documents on then basis that they don’t deem them to be relevant? I can’t tell you the number of times in a case where new evidence which had not been previously disclosed which is relevant to the case first came to light at examinations for discovery.
What we are doing is limiting a lawyer’s ability to explore and “discover” the case at hand; and instead; leaving it to some pre-populated forms which will state that “all relevant documents have been produced“; and because of that, no other documents will need to be shared.
It’s amazing the amount of times a Defendant “forgets” to tell their lawyer something; but then magically remembers it at discovery therefore necessitating documents to be produced which are relevant to the case. Do you really expect the parties to be completely forthcoming in their productions in the adversarial process which is personal injury litigation? How does a lawyer even prepare for trial having never heard or seen the party which they are seeking to cross examine? It’s asking the lawyers to fly blind at trial, and throughout the case.
Here’s a fact: often cases get settled shortly after discovery, or the discovery lubricates the wheels of settlement. That is being completely eliminated for no apparent reason.
The final item I wanted to address is the concept of Pre-Litigation Protocol; which is now required before filing a Statement of Claim. This is brand new; and is an example of bureaucracy for the sake of bureaucracy in order to supress the masses from accessing the Courts.
At least 90 days before issuing a Claim, the Plaintiff must send the Defendant a letter which sets of the details of their claim. This is called a Letter of Claim. This Letter of Claim should include the information that is set out in a template (Can you hear the AI bots grinning?!?). The Letter of Claim must indicate that it is being sent pursuant to the Pre-Litigation Protocol and enclose a copy of the Protocol.
Within 21 days of receiving the Letter of Claim, the Defendant must send a Letter of Acknowledgment to the Claimant (another standard form…AI anyone?)
Within 21 days of receiving the Letter of Acknowledgement, the Plaintiff must provide the Defendant with all sorts of documents such as:
- Decoded OHIP Summary
- CNRs from the family doctor (3 years prior)
- CNRs from the hospital
- Accident Benefit File
- Police Report
- Copy of a statement provided to the Police
- Collateral Benefits File
- Any Expert Reports that have been obtained that the Plaintiff intends to rely on
Within 30 days of receiving the Claimant’s Protocol Documents, the Defendant must request production of any of the Defendant’s Documents that are in possession of Third Parties. The Defendant also must send the Plaintiff a “Letter of Response” (another standard for that the AI bots will pre-populate and send).
If a Defendant fails to provide a Letter of Response within 30 days of receiving the Plaintiff’s documents, the Plaintiff may issue a Court proceeding.
Within 18 days of the Plaintiff receiving the Letter of Response (and before a Court proceeding has been commenced), parties shall participate in a meeting by phone or videoconference to discuss whether negotiation or some other form of Alternative Dispute Resolution might enable them to resolve their dispute.
That 2 year limitation period to issue a claim? No more. Better get cracking right away so that your personal injury lawyer and their AI Bots have time to send in a bunch of pre-populated forms to satisfy these Pre Litigation Protocols. AI Generator anyone?
