Toronto Injury Lawyer Blog
Ontario Courts, along with the civil litigation process are governed by a complex set of rules. These rules are made by people who have an understanding of how the law works, how cases work, and what problems our civil justice system is facing, and how those problems should be addressed.
Every once in a while, the rules are examined and tweaked, in order to better administer civil justice and help the system operate more efficiently.
The Civil Rules Review (CRR) was launched in January 2024, under the leadership of Co-Chairs Justice Cary Boswell of the Superior Court of Justice and a partner at a law firm. The mandate of the CRR is to conduct a comprehensive and complete review of the Rules and identify, through consultation, areas where targeted changes to the Rules would increase efficiency and access to justice for Ontarians, reduce complexity and costs, maximize the effective use of court resources, reduce delay, and leverage technical solutions.
The CRR Group has made a lot of recommendations, which, in my opinion, fail to achieve the goals set out by the CRR. In fact, what these recommendations will bring will be greater injustice to Plaintiffs seeking justice through the civil justice system. The proposed reforms favour Defendants, who need not work hard to advance a claim. It will embolden Defendants to sit back, and really not do much until absolutely necessary to do so.
Personal injury litigation is quite different than commercial litigation, estate litigation, real estate litigation or any other form of litigation.
In all of the forms of litigation I have mentioned, the Plaintiff and the Defendant knew each other; or had some sort of history or relationship.
In a commercial matter, or real estate deal gone bad, both the Plaintiff and the Defendant had dealings with one another before the deal went sour. There are documents to look over before the tipping point which led to the litigation. Often, both parties know about those documents which are likely in the power, possession or control of the parties, or both parties. Imagine a advancing a real estate case without the Agreement of Purchase and Sale; or any other contract relating to the real estate deal. Those contracts will be known to the parties, and will be in the power, possession and control of the parties. Both the Plaintiff and the Defendant will be able to comment on their dealings and correspondence which led to the deal gone bad.
A personal injury case is entirely different. We have two completely strangers, a Plaintiff driver, and a Defendant driver who have never met, or known of each other’s existence before the motor vehicle accident leading to the personal injury case. The only reason they have been brought together and now know each other is through the car accident.
Unlike in commercial litigation, often the parties in personal injury cases are new to litigation. They are unsophisticated litigants whereby this is their first time needing to retain a litigation lawyer. They don’t know how the system works, what to expect or the right or wrong thing to say. They don’t know what information is important, relevant, or helpful.
Part of the proposed rules changes is the elimination of the examination for discovery. This limits the parties abilities to discover the case at hand, and ask questions about the case along with the mindset of the parties before and after the subject accident.
This is crazy to me.
Here is an example of why it’s crazy.
I’ve had a number of cases where the insurer’s defence is that their insured was not to blame for the accident. Their position has been that their insured Defendant was driving their car properly before the accident, and did all they could to avoid the accident.
If you took the insurance company’s word for it; and believe what they were alleging at face value, then the Defendant would win the case.
But only through the examination for discovery process could we find out that their defence was complete and utter BS.
Here are some admissions from Defendants at examinations for discovery; which otherwise would not come out in the productions:
- I was checking my cell phone/texting while driving. The cell phone records produced by way of undertaking back that up
- I had a pot gummy (or a few) before heading out to drive that day
- I didn’t take my anti-seizure medication that day because I didn’t want to. I don’t have any recollection of the accident itself (likely because they had a seizure)
- I broke my arm a few weeks before the accident and I was in a cast. I was told not to drive by my doctors, but I was still driving. Corroborated in the clinical notes and records of the doctor which were produced by way of undertaking after the examination for discovery
- I don’t know how fast I was travelling, nor did I know what the speed limit was for the road on which I was travelling on prior to the collision
- I was late for a meeting/in a rush
- I had a late night of partying the night before the accident
- I was wearing flip flop sandals while driving (in the winter)
- My windshield wipers weren’t working properly or I didn’t have any wiper fluid in my car (hence I couldn’t properly see where I was going, yet I was still driving)
- My doctor prescribed me new medication which made me drowsy
- It was my first time driving this vehicle
- I was an inexperienced driver
- My large Siberian husky was on my lap while I was driving
- My kid was yelling/crying in the back seat so I wasn’t paying proper attention to the road
- The passenger side door was not properly closed, so I was driving with the door ajar and trying to get it shut before the car accident
None of this information can be deduced from any documents! This information only surfaced at Examination for Discovery once questions were asked under oath. These facts were unknown to both the Plaintiff lawyer, and to the Defendant lawyer prior to discovery. These cases settled shortly after discovery because liability was no longer such a big issue; and now the parties could focus on damages/the value of the case.
How naive are we to believe at a Defendant would volunteer any of this information to its opponent before trial? Without examinations for discovery, how will any of this information come to light to any of the lawyers unless it’s at trial? Are litigators just going to have to expect for more trials by surprise, because their most effective tool to assess the case is being taken away?
