On November 22, 2007, the Ontario government released the
preliminary report of the Civil Justice Reform Project (the
Project). The Project — headed up by the Honourable
Mr. Coulter Osborne, a former Associate Chief Justice of
Ontario — was charged with delivering practical
recommendations on how to make civil litigation more accessible
and affordable to Ontarians. The Project consulted broadly with
members of the judiciary and the bar.
The preliminary report, which was presented to Attorney
General Chris Bentley, makes over 80 recommendations covering
issues that range from access for unrepresented litigants to
the use of technology in courtrooms. In making his
recommendations, Osborne was guided by the overriding principle
of proportionality, recognizing that the "time and expense
of any proceeding should be proportionate to the amount in
dispute and the importance of the issues at stake." We
highlight some of the recommendations below.
Disposing of Matters Summarily
Civil actions do not always require a full trial; many can
be dealt with in a more summary fashion. Under Rule 20 of the
Rules of Civil Procedure, a court can grant summary
judgment where there is "no genuine issue for trial."
The report recognizes, however, that the current functioning of
the summary judgment procedure is flawed. Osborne acknowledges
that the Ontario Court of Appeal’s interpretation of
the powers of a summary judgment motion judge or master
"has limited the effectiveness of the rule."
The report recommends granting the court "the express
authority to do what some decisions of the Court of Appeal have
said a motion judge or master cannot do." Specifically,
courts should be permitted on a summary judgment motion to
weigh evidence, draw inferences and evaluate credibility in
order to determine if no genuine issue for trial exists.
The report also recommends introducing new procedures to
dispose of matters summarily. If, in the course of a summary
judgment motion, the need arises for a brief trial on one or
more issues, the motion judge or master should be permitted to
conduct a "mini-trial."
Further, Osborne recommends the adoption of a new summary
trial mechanism, similar to that used in British Columbia,
where issues can be decided on written evidence alone. He notes
that a summary trial procedure would allow for the early
disposition of cases without the cost and delay associated with
other pre-trial steps.
Reducing the Cost and Delay Associated with Discovery
Much work has been done in the area of document discovery,
particularly regarding best practices for electronic discovery.
The Ontario Discovery Task Force has developed a set of
non-binding e-Discovery Guidelines, and a working group of the
Sedona Conference has published a draft set of principles
related to document discovery in Canada. Rather than
introducing new rules, Osborne recommends encouraging greater
compliance with the already established e-Discovery Guidelines
and Sedona Canada Principles. A practice direction issued by
the court could provide judges and masters with the authority
to sanction parties when these guidelines are not followed.
In a further effort to reduce cost and delay, Osborne
recommends narrowing the scope of discovery. The current state
of the law requires that all documents be disclosed and all
answers on discovery be answered if they bear a "semblance
of relevance" to a matter in issue in the case. In his
report, Osborne recommends moving to a stricter test of
"relevance." This is needed, Osborne notes, "to
provide a clear signal to the profession that restraint should
be exercised in the discovery process."
Also of note, Osborne recommends:
reducing the time and cost associated with motion and
trial scheduling by eliminating trial assignment court and
setting more specific times for motions;
increasing the monetary jurisdiction of the Small Claims
Court from $10,000 to $25,000 over a period of two
increasing the monetary jurisdiction of the Simplified
Procedure rules from $50,000 to $100,000 as soon as
mandating the use of a litigation budget, whereby lawyers
would set out the expected costs of a proceeding to their
clients at the outset of any litigation;
rethinking the current case management regime so that
cases are only managed by the courts when necessary; and
reforming the rules relating to the use of experts to
A final report is expected to be delivered shortly. It will
then be up to the Attorney General to determine if and how
these recommendations should be implemented.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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