A critique of Ontario’s Civil Rules review | Allan Rouben

Law360 Canada (April 7, 2025, 2:46 PM EDT) --

Allan Rouben

Excessive cost and delay have become so endemic to our civil justice system that the authors of the Civil Rules Review consider that the only remaining solution is to redesign the rules “from the ground up.” The fault for this is placed squarely at the feet of lawyers who, aided and abetted by the existing rules, adopt a “maximalist” approach to documentary and oral discovery. For the generations of lawyers schooled in this tradition, it will come as a shock to the system to read in the Phase 2 Consultation Paper released on April 2, 2025: “We believe oral discoveries are simply not necessary in any type of case in the up-front evidence model.”

A shift in culture is to be effected by mandated goals, consisting of the promotion of cost-effective, proportionate and expeditious procedures, together with an overriding duty to co-operate. Pleadings and other documents filed with the court will be deemed to include a certification that the document is not being presented for an improper purpose and can be supported.

After the close of pleadings, the parties are to exchange sworn witness statements of the witnesses they intend to rely upon, which will form the basis for the party’s case in chief at trial; affidavits of documents including the documents intended to be relied upon; and a timetable for expert reports. A party can make a request for additional documents and there will be an opportunity for limited written interrogatories.

The aim for all civil cases will be a hearing on the merits within two years of the issuance of the claim. Cases that require minimal judicial intervention will be sent to a One Year Scheduling Conference to fix a date for trial. The others will be sent to a Directions Conference to address any disclosure issues or potential motions. Personal injury actions, debt collection matters and disputes involving testamentary instruments will be subject to a pre-action protocol wherein information and documents are to be exchanged before the issuance of a claim. For all claims, the scope of documentary discovery is to be altered to the production of those documents intended to be relied upon, as well as any “known adverse documents” in the party’s possession. Oral examinations for discovery are to be eliminated.

This is indeed radical surgery, but if the result is that claims are brought to a dispositive hearing within two years, it will likely have been worth it. Similarly, with the hoped-for shift away from a maximalist to a minimalist approach to the conduct of litigation.

Constraints of space prevent a review of the committee’s extensive proposals, so I would like to focus on a few that are cause for concern. Oral examinations are rightfully seen as a critical information-gathering tool where the parties can assess the credibility of their opponent and ask follow-up questions. With settlement rates of over 95 per cent, an oral examination may be the only opportunity a party has to face their opponent. A wrongdoer or bad actor will be only too pleased to answer written questions alone in the comfort of their lawyer’s office with limited opportunity for follow up. Written examinations under Rule 35 have been part of the rules since 1985, but there is virtually no case law on it because the procedure is simply not used, no doubt because the profession does not consider it an adequate substitute for oral examinations.

As regards documentary production, so critical to the just determination of a dispute, the obligation will be to produce what is being relied upon, as well as adverse documents. As noted by the committee: “Parties will be required to take reasonable and proportionate steps to identify known adverse documents but will not be obligated to conduct extensive searches or reviews.” The concern here is that this may leave too much room for litigants to shield relevant information unhelpful to their case, and this is compounded by the absence of oral discovery where such matters can be tested.

I am also doubtful that pre-action protocols, which result in front-end loading of time and effort, will have the effect of reducing cost or increasing the number of pre-action settlements, such as would justify the use of this procedure. Rather, it seems to me the protocols put more hurdles in the way of plaintiffs seeking to access the courts and give more room for defendants to delay.

Opinions from the bar are now being sought to the proposals in the consultation paper. Whatever the outcome, it is to be hoped that the profession will embrace the culture shift in the conduct of litigation being advocated for: that lawyers will take more responsibility to streamline their cases at an early stage; they will confer so as to narrow the issues in dispute, focus on the essentials and discard the rest; and thereafter they will take the initiative to resolve matters jointly without the overlay of mediators and pretrials we have become familiar with.

What is abundantly clear is that the authors of the consultation paper, consisting of 14 esteemed members of the bar and academia, under the leadership of the exceptional jurist Justice Cary Boswell and Allison Speigel, have put enormous care and effort into the fulfillment of their mandate. The profession and public owe them a great debt of gratitude. The stakes could not be higher.      
    
Allan Rouben has carried on a civil litigation and appellate practice since 1988. He has been actively involved in the profession and community, and has written and lectured on issues relating to civil litigation and the administration of justice.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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