Changes to the Rules of Civil Procedure - Part 2

Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 2 of our review of the amendments.

In our last post we discussed the introduction of the discovery plan. In addition to aiming to increase efficiency in the discovery process, the new rules emphasize proportionality. Rule 29.2 is a new rule which introduces proportionality into discovery. In making production orders, a court will analyze a number of factors, such as whether answering a question or producing a document would:

1) require an unreasonable amount of time;
2) create an unjustified expense;
3) would cause undue prejudice;
4) would unduly interfere with the orderly progress of an action;
5) result in an excessive volume of documents; and
6) whether the document is available from another source.

These criteria could be problematic. It seems to me that these factors create room to argue that relevant documents need not be produced; for example, does this allow a plaintiff with a lengthy pre-accident history to argue the records do not have to be produced because there is an “excessive” amount of them? There will be disputes and hopefully judges will apply a common sense application to r. 29.2.

Ontario Government Proposes New Auto Insurance Options

According to The Globe and Mail, the Ontario government is proposing to allow consumers to purchase less auto insurance coverage in order to keep down their auto insurance premiums.

Proposed changes include:

- lower the minimum medical and rehabilitation coverage for auto insurance to $50,000 from the current $100,000;
- adding a new deductible for property damage; and
- removing an insurer's right to an assessment from their own doctor if they disagree with the findings of the insurance company's health provider.

Sidewalk Non-Repair

A recent decision of Justice Matheson of the Ontario Superior Court of Justice in Hamilton found that a depression in a sidewalk of 5/8 of an inch does not constitute a state of non-repair, Anderson v. Hamilton, [2009] O.J. No. 4358.

The plaintiff had tripped over a small depression in the sidewalk and fell, breaking her wrist. The court confirmed that each case of non-repair of sidewalks is governed by its own factual basis and the affirmed the traditional formulations that a Municipality is "not an insurer" of anyone walking on its streets and that a Municipality does not have to keep its sidewalk as "smooth as a billiard table".

Further, the court held that the City of Hamilton did have a regular inspection routine for its sidewalks. The City inspects its sidewalks in Hamilton once a year. The court held that this was more inspection than some courts had called for, noting that in some cases inspections every three years have been acceptable. The City of Hamilton therefore was held to have satisfied the duty placed on it by having regular inspections.

Tara Pollitt

For the one or two people out there who regularly follow this blog (thanks Mom), you may have noticed that there have been new contributions made in the last month by Tara Pollitt. There is also a new photo on the main page - the white haired guy is me, in case you couldn't guess.

So, this is to officially announce that Ms. Pollitt is now a co-editor/writer. Tara grew up in Owen Sound. She received an undergraduate degree at the University of Waterloo and a law degree from the University of Western Ontario. Suffice to say, she is smarter than me. Tara practiced law initially on the plaintiff side for several years at a well-known plaintiff's law firm before switching over to practice law exclusively for insurance clients. We at McCall Dawson are glad she made the change. So are her clients.

I am very happy to have Tara join me on this blog. We hope you enjoy our regular legal updates in the weeks and months to come. We are always happy to have your comments.

Changes to the Rules of Civil Procedure - Part 1

Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 1 of our review of the amendments.

A brand new rule has been created which introduces a “discovery plan”. This is a document created by the parties which will set out things such as the scope of discovery, timelines for service of Affidavits of Documents and names of persons to be examined. There is no prescribed form for the discovery plan, so precedents will have to be developed. This rule presumes a level of cooperation between counsel which may or may not exist. The aim of the rule is to make the process of documentary and oral discovery more streamlined and efficient; however, it could result in a new area of dispute between parties. It could be especially difficult in cases involving self-represented litigants to come to agreement on the elements of the discovery plan. If there is no discovery plan, a judge on a motion can refuse to grant the relief sought; for example, on an undertakings motion, the court could refuse to order the undertakings be complied with if there is no discovery plan. It would seem prudent to “paper the file” if counsel is unable to come to an agreement on the discovery plan, so that at least there is proof that an attempt at complying with the rule was made.

Although the discovery plan aims to make discovery more efficient, it is possible that it increases cost, at least in the short term, as counsel develop a standard practice for the discovery plan.

OPCF 44: McGrath v. Arshad, [2008] O.J. No. 5771 (S.C.J.)

This decision clarifies the underinsured provisions of the OPCF 44. The at fault driver, Arshad, had $200,000 in liability insurance. There were multiple plaintiffs, whose claims exceeded $200,000 and would therefore share pro rata. One of the plaintiffs, McGrath, had purchased $2,000,000 in extra insurance but his pro rata share was only $20,000. His insurer took the position that its obligation to pay started at $200,000. The court disagreed and held that the insurer was obligated to make up any shortfall between the actual amount the claimant received from the underinsured driver ($20,000) and his damages up to the OPCF limits ($1,800,000).

Distracted Driving Legislation Comes into Effect October 26, 2009

Bill 118, which amends the Highway Traffic Act to prohibit the use of handheld electronic devices while driving, comes into effect October 26, 2009.

Some highlights of the new legislation:

• drivers cannot use handheld devices while driving. This includes cell phones as well as handheld entertainment devices such as iPods, Gameboys and so forth;
• drivers may use devices such as cell phones in hands-free mode;
• drivers cannot view display screens on devices unrelated to driving, such as DVDs or laptops. This does not include GPS systems;
• the use of such devices while off the roadway, not in motion and not impeding traffic is permitted;
• calls to 911 are exempted.

Fines for contravening these provisions range from $60 to $500. Police can also charge drivers with careless driving which has more serious penalties, including imprisonment.