Court Permits Amendment Into Simplified Procedure in Non-Jury Case

In Sutherland Estate v. London Health Sciences Centre, 2022 ONSC 5942, the plaintiffs sought to amend the Statement of Claim to limit the claim to $200,000 and to continue the action under the Simplified Procedure.  The defendants opposed the amendment.

A patient sustained injuries while at a hospital.  Over five years later, the patient died of natural causes.

The plaintiffs’ lawyer indicated that, as a result of the death, the damages are significantly less.  In particular, there is no longer the need for any future care.  The plaintiffs’ lawyer advised the court that the damages will not exceed $200,000.

Justice Heeney indicated that, if the trial were to proceed in the ordinary procedure, the trial length would be 15 days or more.  In the Simplified Procedure, trials cannot exceed five days.

The defendants argued that a five day trial would not provide them with enough time to put in all of their evidence.  Justice Heeney disagreed, indicating that, in Simplified Procedure trials, evidence in examination-in-chief is given by way of affidavits.

Justice Heeney also rejected the defendants’ argument that a Simplified Procedure trial would hinder the ability of the judge to analyze the evidence and render a just verdict.  On the contrary, Justice Heeney said that having all of the evidence-in-chief in writing at the outset of the trial would make things considerably easier for the trial judge.

Previous case law in which plaintiffs were not permitted to amend out of the Simplified Procedure was distinguishable because those cases involved jury trials.

In the end, Justice Heeney permitted the plaintiffs to reduce the damages to $200,000 and to have the claim proceed in the Simplified Procedure.

The defendants raised an alternative argument that, should the amendment be granted, they would be seeking an order for costs on a substantial indemnity basis up to the date of the amendment.  This issue was not fully argued at the motion, and Justice Heeney ordered the parties to provide written submissions on the issue.