Written by: Lindsay Charles, and Savannah Snyder, Articling Student
On December 1, 2024, significant amendments to the Rules of Civil Procedure[1] came into effect.
Regulation 384/24[2] introduced changes to improve the certification of authenticity for authorities cited in factums and expert reports while eliminating duplicate filings. Seven rules and one form were amended. This will provide an overview of the main amendments to the seven rules and one form.
Certifying authenticity of authorities cited in factums
Additions to Rule 4.06.1 require factums to include a statement by the filing lawyer, or someone authorized on the lawyer’s behalf, to certify the authenticity of all authorities cited in the factum.[3] However, authenticity of authorities published by government website, government printers, CanLII, court websites, or commercial publishers is presumed, unless proven otherwise.[4]
Proof of Service of Notice
Rule 38.06 was amended to remove the requirement to file a copy of a notice of application alongside proof of service for that notice.[5] Now, only proof of service of notice of application is required to be filed.
Expert Witnesses
Expert reports are now required to include a certification from the expert witness affirming authenticity of all authorities, documents or records cited, with certain exclusions for evidence provided to the expert, documents cited solely in response to other experts, or those the expert challenges in the report based on the amendments to Rule 53.03.[6]
Subrule 52.03 was amended to require court-appointed experts to prepare and send a report containing information listed in subrule 53.03(2.1), other than an acknowledgement of an expert’s duty, to the registrar.[7] The information required in the report are the same as the additions to 53.03 above.
Additionally, authenticity is now presumed for authorities, documents or records published by government websites or printers, scholarly journals, or commercial publishers in the subject area of the report unless evidence suggests otherwise, for expert witnesses and court-appointed experts.[8]
Harmonize Certification Provisions
Rules 61.11(1) and (5), 61.12(3) and (5.3), and 68.04(3) and (6) were amended to harmonize existing certification provisions for appeal and judicial review factums with the new authenticity requirements.[9] These amendments require the appellant’s and respondent’s factums to include a statement required by subrule 4.06.1(2.1), which was outlined at the start of this blog.
For a complete list of changes, please review Ontario Regulation 384/12 made under the Courts of Justice Act.
[1] Rules of Civil procedure, RRO 1990, Reg 194.
[2] Ibid as amended by O Reg 384/24, s.1.
[3] Ibid, R 4.06.1(2.1).
[4] Ibid, R 4.06.1(2.2).
[5] Ibid, R 38.06(4).
[6] Ibid, R 53.03(2.1).
[7] Ibid, R 52.03(7), (7.1).
[8] Ibid, R 53.03(2.1.1).
[9] Ibid, R 61.11(1), (5), 61.12(3), (5.3), 68.04(3), (6).