TRAVERSING THE RULE 76 TERRAIN

STRATEGIZING THE SIMPLIFIED PROCEDURE

OBA Institute
February 7, 2017
Hassan M. Ahmad, J.D., LL.M.

The information presented is for general discussion purposes only and does not constitute legal advice for any
specific situation. Please contact any of the presenters if you have need for any specific legal advice.
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TRAVERSING THE RULE 76 TERRAIN

Introduction

The Osborne Report Today

2010 Amendments: Lasting Effects

The Simplified Procedure: An Untapped Resource

Using the Simplified Procedure Strategically

Conclusion
TRAVERSING THE RULE 76 TERRAIN

TIMELY JUSTICE IS ONE OF THE HALLMARKS OF A FREE AND DEMOCRATIC SOCIETY.

Supreme Court of Canada (R. v. Jordan)
INTRODUCTION

Rule 76: What does it do?

Expedites litigation: How?
streamlines documentary and oral discovery
limits interlocutory motions
Implements time-limited summary trials

MAG Civil Rules Committee (1993)

on average, litigants only left with 20-30% of judgment for claims under
$25,000
INTRODUCTION

[w]e felt that, although the current Rules are admirably suited to litigation
involving large sums of money, those same Rules, when applied to disputes
over lesser sums of money, generate prohibitive costs.
Civil Justice Review: First Report, March 1995
THE OSBORNE REPORT TODAY

Issues and Principles:

access to justice
proportionality
culture of litigation
2010 AMENDMENTS: LASTING EFFECTS

Amendments to rule 76 pursuant to

Osborne Report
Monetary jurisdiction: $50,000 $100,000
Oral examinations = 2 hours
Summary trial: 10 minute exam-in-chief / general
statement from affiant
THE SIMPLIFIED PROCEDURE: AN UNTAPPED RESOURCE

Commencing a rule 76 claim

Post-pleadings

Pre-trial

Summary trial
THE SIMPLIFIED PROCEDURE: AN UNTAPPED RESOURCE

Commencing a rule 76 claim

money, real or personal property
does not apply to:
class proceedings;
construction lien actions (except trust claims);
rule 77 claims;
family law actions;
small claims court actions; and
applications
THE SIMPLIFIED PROCEDURE: AN UNTAPPED RESOURCE

Post-pleadings
form 76A
list of potential witnesses (rule 76.03(2))
rules 35, 39.02, 39.03 not allowed
settlement discussions within 60 days of filing defence
motions: Form 76B
THE SIMPLIFIED PROCEDURE: AN UNTAPPED RESOURCE

Pre-trial
notice of readiness for pre-trial conference, Form 76C
5 days before:
affidavits of documents
schedule A productions,
any expert report(s); and
any other necessary materials
Form 76D
choice: i) summary trial; or ii) ordinary trial
THE SIMPLIFIED PROCEDURE: AN UNTAPPED RESOURCE

Summary Trial
trial record: 10 days before summary trial
affidavit evidence
exam-in-chief: 10 minutes
cross-examination: 50 minutes
USING THE SIMPLIFIED PROCEDURE STRATEGICALLY

To simplify or not to simplify?

Mandatory: under $100,000 (each plaintiff)
Optional: over $100,000 (with no objection)
document-heavy cases
none or little conflicting evidence requiring oral testimony
Communicate early with counsel
USING THE SIMPLIFIED PROCEDURE STRATEGICALLY

Defending a rule 76 claim: when to object?

In clients best interest (limited discovery and motion
rights)
Avoid unnecessary legal costs
Potential counterclaim, crossclaim, third party claim?
Preferential examination rights
USING THE SIMPLIFIED PROCEDURE STRATEGICALLY

Summary judgment under rule 76

No/little conflicting evidence AND oral
examinations not necessary
Rule 20.04 (2.2): oral evidence at SJ
Partial summary judgment discouraged
USING THE SIMPLIFIED PROCEDURE STRATEGICALLY

Summary trial or ordinary trial

decide at pre-trial
ordinary trial
complex facts
witness credibility
not limited to affidavit evidence
USING THE SIMPLIFIED PROCEDURE STRATEGICALLY

Costs consequences
continuing obligation
rule 76.13(7): real/personal property value
costs proportionate to claim
CONCLUSION

Remember:
Osborne Report principles and issues

Consider:
rule 76 even when not mandatory

Think:
recovery for your client!