On January 1, 2020 Ontario introduced amendments to Rule 76 of the Rules of Civil Procedure to address concerns that the rule was not meeting its intended objectives of simplifying and expediting the legal process. Now, its catchment has been doubled, and the process has been made more prescriptive. What do these changes mean for a personal injury claim?

What is Rule 76

Rule 76 was introduced in 2010 to streamline cases in which the quantum of the claim was between $25,000 and $100,000. Its objectives were to keep litigation costs down, resolve matters in a timely manner, and preserve court resources. Personal injury cases do fall within the Rule 76 purview — though such claims often exceed the $100,000 limit and, as a result, they are more likely to be brought under the Ordinary Procedure.

Why Rule 76 had little impact on personal injury matters

The unique nature of personal injury claims means Rule 76 (unmodified) is applicable in few cases:

1. Since claimants often file claims before the full and complete extent of injuries is ascertained, claims in excess of $100,000 are often made;
2. Since personal injury claims often result in settlement, plaintiffs are not motivated generally to proceed via Rule 76 in an effort to reduce the costs risk; and
3. Given the evidentiary restrictions in the simplified procedure, personal injury lawyers have every incentive to file claims that exceed the $100,000 cap.

Changes introduced to Rule 76 in 2020

1. Upper claim threshold has been increased from $100,000 to $200,000
2. Parties can rely on up to three experts at trial
3. Costs awards capped at $50,000 and disbursements at $25,000 (excluding H.S.T.)
4. Trials are not to exceed five days
5. Examination-in-chief evidence must be adduced by way of affidavit
6. The right to jury trial has been removed (except in cases of libel, slander, malicious prosecution, false imprisonment, and malicious arrest)

Impact on personal injury claims

It remains to be seen as to whether or not the increased $200,000 limit will lead to a substantial increase in the number of Rule 76 personal injury claims being issued. The slowdown brought by the Covid-19 lockdown means we will have to wait to assess the impact of the Rule 76 revisions on personal injury cases. Nevertheless, it seems unlikely that there will be a significant increase in Rule 76 cases because personal injury claims are typically pursued in terms of the limits of the defendant’s insurance policy coverage ($1 million or more).

Personal injury claims, even straightforward ones, rely on expert evidence regarding accident scene reconstruction, assessments of medical, psychological, and vocational issues, loss of income, and other relevant areas of expertise. In fact, it is common practice for many lawyers to introduce as many experts as they can to present a stronger case. For personal injury lawyers, then, agreeing to abide by the Rule 76 limit of three experts — which may undercut or limit the presentation of their case — seems unlikely.

Subrogated claims

If there is a possibility for change, it would seem to apply to the case of subrogated claims. Insurance companies are not only able to better assess the quantum of damages than plaintiffs, they are also more likely to reduce the claim if it means complying with the ‘cheaper’ Simplified Procedure.

If you or a loved one have suffered injuries due to the actions of another, talk to a Toronto personal injury at Pace Law.

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