The Government of Ontario has enacted a series of legislative changes to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) which will come into effect on December 1st, 2024.
Factums and Expert Reports
On October 9th, 2024, O. Reg. 384/24 introduced new procedural requirements for factums and expert reports under the Rules.
Now, any party who submits a factum or an expert report at trial, on appeal, or in a judicial review application to the court, must file a signed certificate of authenticity. The certificate must state that the submitting party is satisfied with the authenticity of all authorities cited in the relevant document. Authorities which are published on a government website or by a government printer, scholarly journal, or commercial publisher of researched is presumed authentic unless proven otherwise.[1]
As it relates to expert reports, the rule does not apply to authorities or documents or records that were i) analyzed by the expert themselves after they were provided to them by the party engaging them, ii) cited solely to respond to the same evidence used by another expert in the proceeding, or iii) referenced in the report but for which the authenticity is doubted by the expert themselves.[2] Moreover, all party-engaged experts must now add the exact same certification to the Form 53, Acknowledgment of Expert’s Duty, which they must fill out and sign.[3]
The amendments shed light on the importance of protecting the record by ensuring that the authorities being relied upon in court are authentic, especially given the increased use of artificial intelligence in legal research and practice.
Vexatious Litigants
A vexatious litigant is a person who abuses the legal process and wastes valuable court time and resources by pursuing a frivolous legal claim.
Amendments to the vexatious litigant provisions under the Courts of Justice Act (“CJA”) were introduced on March 6th, 2024.[4] In order to harmonize the legislation, several months later, the government introduced amendments to the vexatious litigant rules under the Rules of Civil Procedure (“the Rules”).[5]
Section 140 of the CJA grants judges the discretion to order that a vexatious litigant is prohibited from initiating or continuing a proceeding in any court, except with leave of a judge.[6] The recent amendment to section 140 expands judicial discretion to make such an order on “any other term that is just”.[7]
Further, the amendments to the Rules as introduced by O. Reg. 322/24 brought certain changes to proceedings involving vexatious litigants such that the courts may now order proceedings to be stayed or dismissed for appearing to be frivolous or vexatious. The amendment not only allows the order to be obtained either on the court’s own initiative or on request by one of the parties, but also provides additional court forms which must be delivered by the moving and responding parties, or registrar.[8] Once initiated, these proceedings will now be governed by the new Rule 2.2, rather than Rules 37, 38 and 39, which govern all other motions or applications brought under the Rules.[9] These changes are aimed at clarifying the procedural rights of parties, while ensuring that judges also retain the necessary discretion to weed out unmeritorious claims for the betterment of Ontario’s court system.
[1] Rule 4.06.1(2.2), Rule 53.03(2.1), Rule 53.03(2.2).
[2] Rule 53.03(2.1).
[3] Ibid
[4] R.S.O. 1990, c. C.43
[5] O. Reg. 322/24
[6] Supra, note 4, at s. 140.
[7] Enhancing Access to Justice Act, 2024, S.O. 2024, c. 2 – Bill 157, Schedule 6, subsection 7(1)
[8] Rule 2.1.01(4), Rule 2.1.01(6).
[9] Rule 2.2.03(7).
The author would like to thank our Student-at-Law, James Moskowski, for his assistance in writing this blog.