A working group commissioned by the Attorney General and Chief Justice of Ontario has released proposed reforms to Ontario's Rules of Civil Procedure, which govern civil litigation. The proposed recommendations, while not binding, are far-reaching. If all, or even many, are implemented it will radically change how parties resolve disputes in Canada's largest province.
The proposed paper, which runs nearly 100 pages, can be found here. At their core, the changes are premised on the following ideas, which very few would dispute:
- The civil justice system is broken;
- The cost of litigation is far too high; and
- Litigation processes are plagued with unacceptable delay.
The premise of the proposed reforms is that the complexity of the underlying system itself is largely to blame. The report quotes Justice Rosalie Abella, a former Supreme Court of Canada judge, who pithily observed that: "We have moved from being a society governed by the rule of law to being a society governed by the law of rules. We have become so completely seduced by the notion, borrowed from criminal law, that process ensures justice, that we have come to believe that process is justice."
The authors of the report contend that the perfect has become the enemy of the good. They argue that by permitting parties to conduct exhaustive discovery, bring endless motions, and delay hearings and trials, we are promoting a manner of seeking the 'truth' that results in a denial of justice. While unstated, a key idea underlying the report is that it would be much better for the system to resolve far more disputes and get some things wrong than for the status quo to persist.
The devil is in the details of how to fix what are clearly systemic issues. Some of the key concepts that drive the specific proposed reforms include:
- Getting cases to trial in two years from commencement.
- Dramatically narrowing the scope and extent of discovery (including getting rid of oral examinations for discovery).
- Requiring parties to 'front load' cases and invest more time, effort and thought into them at an early stage.
- A significant shift away from the use of motions and a reduction in their complexity.
- Streamlining and simplifying processes that apply in different types of cases.
- Making the conduct of litigation 'system-driven' with hard deadlines and real consequences for missing them, rather than 'party-driven'.
While exhaustively summarizing every proposed change is beyond the scope of this article, some of the key changes include:
- Implementing pre-litigation dispute protocols in certain cases such as personal injury, debt collection and estate matters.
- A single way of commencing a proceeding (e.g. no more actions or applications) using a specific court form that will be structured more like an American 'complaint' that lists out each cause of action.
- Streamlining service of claims, including a presumptive obligation that service by email is acceptable, requiring parties to accept service when they have received a document, and prescribed penalties for not accepting service.
- After pleadings close, parties will be required to deliver the core of their case for trial in the form of: (a) sworn witness statements which will comprise a party's evidence in chief at trial (only parties themselves will be expected to testify in direct examination), on which the witnesses will be cross-examined; (b) documents parties intend to rely on; (c) "Known adverse documents" (e.g. documents unhelpful to a party's case; and (d) a timeline for providing expert reports.
- After this is completed, parties can make narrow and specific requests for documents not in their power, possession, and control.
- The elimination of oral discovery – there will be no more pre-trial examinations for discovery (the report proposes that this not even be permitted in exceptional cases). There will be limited written interrogatories, where parties will be required to answer question unless they are scandalous, call for privileged information, or would be disproportionate.
- Motions will be triaged through a case conference, with the judge presiding being in a position to decide the issues summarily, or to direct them to be dealt with in a circumscribed manner. Contested motions will be resolved using more streamlined and shorter documents.
- Case conferences will be automatically booked within a year of the commencement of a claim with the goal of booking the mediation and a trial within a year after that conference.
- Mandatory mediation will be expanded outside of Toronto, Ottawa, and Windsor. Judicial pre-trials will be focused on trial management rather than dispute resolution.
- Changes to how expert reports are tendered, their form, and how expert evidence is presented at trial, including more reliance on joint experts, that a party can only call one expert per issue, and that an expert report be taken as read into evidence at trial.
- Specific trial management procedures, including written opening statements, the filing of an agreed chronology, and the filing of a joint book of documents.
- Stronger deterrence through costs awards, including clear and stringent rules on awarding full indemnity costs in more circumstances, and prescribed penalties and fines for missing hearings or breaching deadlines.
- More clarity on appeal rights and routes, including narrowing the scope of what is considered a final order (meaning that leave to appeal will be required in more cases, although the leave standard will be relaxed), creating a presumption that the filing of an appeal does not stay the continuation of the proceeding, and permitting interlocutory orders to be appealed at the end of a case.
These proposed reforms are not yet a fait accompli, though anyone strongly opposed to or opinionated on these topics would be wise to register any objections before it is too late. The working group has invited comments and suggestions on the proposed reforms by June 16, 2025.
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