AccounTrust Business Services Inc.
Personal Injury

Summary trials ideal for speeding along smaller claims

Toronto personal injury lawyer Sharon Bauer isn’t sure why more lawyers aren’t taking advantage of summary trials to get their clients through the court room doors faster and reduce their clients’ risk of costs consequences. 

Summary trials are available when a claim is issued under simplified procedure. By issuing a claim under simplified procedure, the claimant limits the claim to $100,000. In many circumstances where a claim is issued under simplified procedure, a summary trial is ideal, says Bauer, partner with Wolfe Lawyers.

“Young lawyers may not want to go to trials or don’t want to spend time away from their practices for long trials. But this process is an effective strategy to speed-up trials," she tells AdvocateDaily.com

Bauer is speaking at a webinar on Sept. 13 through the Ontario Trial Lawyers Association (OTLA) to teach others about simplified procedure and summary trials, especially young lawyers who typically handle claims of that size.

It is of particular benefit to our clients who do not wish to go through a long and drawn out litigation process, says Bauer. Issuing a claim under simplified procedure already shortens the proceeding before trial. A summary trial further shortens the process by shortening the trial itself. 

“The threat of spending years in litigation can scare our clients. Our clients are further scared of the cost consequences of going to trial as well as the significant disbursements incurred. This fear often prevents our clients from proceeding with trial and our clients give up on an avenue to enforce their right,” she says.

Recently, Bauer requested a summary trial on a case she issued under simplified procedure. She was granted her request by the pre-trial master. The case was settled before it went to trial.

A party to a proceeding under simplified procedure can request a summary trial. A party does not have an absolute right to a summary trial. The requesting party must show why it would be appropriate to be granted a summary trial.

Summary trials are not new but they are uncommon in this province. As far as Bauer is aware — and she’s done extensive research — few cases have proceeded to summary trial in Ontario. The process is much more utilized in Alberta and British Columbia.

The goal of a 2006 review of civil justice undertaken by former Associate Chief Justice of Ontario Coulter Osborne was to make the system more accessible and affordable for plaintiffs. His report reinforced the idea that all points of the system must be conducted with due regard to cost and efficiency.

Osborne’s recommendations, which included increasing the damage limits for claims that could proceed under simplified procedure from $50,000 to $100,000, formed the basis of changes that came into effect in 2010. Those changes included allowing for a summary trial.

“Unfortunately, many lawyers here either haven’t considered summary trials or they do not know about this rule. It’s completely underused,” she says.

In some cases, lawyers don’t want to have to limit their claims to proceed under simplified procedure, says Bauer, and that is understandable for claims worth or potentially worth $100,000 or greater.

Simplified procedures set strict timelines to be met throughout litigation. For example, examinations for discovery are limited to two hours, down from seven hours allowed under ordinary rules. This is meant for claims to move through the litigation process faster. It is also meant to address the rule of proportionality.

Proportionality is the underlying principle in summary trials where parties rely on witness affidavits instead of viva voce evidence. Examinations and cross-examinations of witness affidavits are limited to 10 minutes, a far cry from the hours or days under ordinary procedures.

“An affidavit should be enough in most cases. If the defendant wants to cross-exam on that affidavit, then they are going to pay the cost of bringing in the witness. If a party needs more than 10 minutes to cross-examine a witness, the judge has the discretion to extend that time but a judge will always have the principle of proportionality in mind.”

The summary trials also limits closing arguments to 45 minutes.

Bauer says summary trials are not only beneficial for claimants and their counsel, but also for the court system. Moving through trials faster, frees up more court time to run more trials and therefore there won’t be a significant backlog of trials like there currently is.

Bauer’s client in the recent summary trial case involved a woman in her 80s who suffered soft tissue damage and a concussion in an accident. The case had been in litigation for a couple of years before a settlement was reached about a month before the start of the trial.

Bauer says it makes sense that big cases, those worth millions of dollars, should take longer to resolve.

“But smaller files should not take that long. It’s about proportionality. When there is less money at stake in a claim, my client should not be exposed to potential costs which are greater than what the claim is worth.”

She says one issue yet to be determined is how to proceed when the plaintiff requests a summary trial in an action where a jury notice has been filed.

“I am not aware of any summary trial that has been conducted with a jury. That’s an interesting question. Does filing a jury notice hijack a plaintiff’s right to a summary trial?”

Though her case was settled out of court, Bauer says applying for a summary trial procedure was a thrill.

“There isn’t much case law out there so knowing this could make case law was very exciting.”

To Read More Sharon Bauer Posts Click Here
Lawyer Directory
BPFG: NEW AD TO ROTAE MONTHLY WITH BICOToronto Lawyers AssociationMKD InternationalFeldstein Family LawLegal Print & Copy Inc.Davidson Fraese Family LawyersJHG Criminal Law/Jordana GoldlistAchkar Law