Proportionality in construction cases

One of the hottest legal principles emerging across Canada is proportionality — where each case is dealt proportionately to the nature of the subject matter involved, the case’s jurisprudential value, and the proceeding’s complexity. In Ontario, for example, the simplified procedure rule embodies proportionality as a practical limit when litigating cases of lower monetary amounts. Recent changes to the Ontario Rules of Civil Procedure and the B.C. Civil Rules, and proportionality under simplified or ordinary procedure, affect the litigation of construction disputes.

Under the rule changes in Ontario, litigants must determine whether to bring their construction claims under either small claims, simplified or ordinary procedure. There are different procedures for actions under the Construction Lien Act. For non-lien actions, the formal changes to Ontario Regulation 626/00 and the Rules of Civil Procedure, which became effective Jan. 1, have raised the monetary limits for small claims court from $10,000 to $25,000, and in Superior Court under Rule 76 Simplified Procedure from $50,000 to $100,000 (excluding interest and costs). In practice, Ontario courts have also encouraged the use of simplified or equivalent procedure in suitable cases for claims involving more than $100,000.

In Ontario, the rules now embrace proportionality for all types of procedure as part of a growing trend to simplify matters and make litigation more cost-effective. Under Rule 1.04(1.1), proportionality has been used to limit demands for extensive documentary production or oral discovery, including requests for e-discovery that are disproportionate to the monetary amounts at issue. Rule 29.1 now requires a discovery plan upon request, and the Canada Sedona Principles for E-discovery (January 2008) apply to proportionately limit electronic discovery and avoid excessive costs resulting from the production of high volumes of information. These limits are useful in construction cases, which are notorious for large volumes of documentation.

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Source: lawyersweekly.ca
By: Albert Wallrap