The civil rules review, or CRR, was launched by provincial Attorney General Doug Downey and Superior Court Chief Justice Geoffrey Morawetz in 2023 to identify issues and develop proposals for reforming the rules to increase efficiency and access to justice, reduce complexity and costs, maximize the effective use of court resources, reduce delay and leverage technical solutions.
Superior Court Justice Cary Boswell, who is co-lead of the review working group, noted there have been three major civil rules reform projects since 1985, but what distinguishes the current effort is the depth of the scope the working group has been given.
“It’s to not tinker around the edges — it’s to redesign the system from the ground up,” he said. “They have asked for major changes to the structural model that has been in place, really, since 1881 when the Judicature Act of Ontario came into force.”
Allison Speigel, Speigel Nichols Fox LLP
One of the areas targeted is document discovery. The complete discovery model was introduced in 1985 — an era in which, as the report noted, document discovery was “significantly less burdensome.” But digital technology has since dramatically changed the way people communicate, and the scope and burden of documentary discovery has dramatically increased. The proposed new model moves from a relevance-based standard of disclosure to a modified reliance-based standard, which would require parties to disclose the documents upon which they intend to rely to prove their case, as well as all known adverse documents in their possession, control or power.
Speigel noted this is a “huge, huge change,” and said when one looks at how many documents get produced in cases, compared to how many end up in a trial record, people are “exponentially over-producing.”
“The number one question that I would ask as a lawyer is, how many documents are involved? How much do I have to look through to understand what this case is about?” she said. “What we have tried to do is tailor this to a standard that will produce documents that are relevant to the matters at issue in the case. So, you can’t just raise a claim anymore with nothing to back it up and then request every document under the sun relating to it.”
Another major change the review is proposing is elimination of oral examinations for discovery in favour of the exchange of sworn witness statements — which Speigel said is going to be “hard for people to swallow.” She said in this “new proposed world” where a lawyer has all the evidence in chief of the other side, they know exactly what everyone’s case is — so examinations for discovery are no longer necessary.
“It’s important to understand that we are not contending that they hold no value,” she said. “Our contention is that they are not necessary and do not overcome the cost and the delay that examinations for discovery infuse into litigation.”
The current civil justice system is a party-driven system, the report said, which allows parties — for the most part — to proceed at their chosen pace. But the working group wants to move to a court-managed process, which is viewed as being necessary to reduce delay and interlocutory wrangling.
In the proposed new model, as soon as it is practical after issuing a claim, the court is going to give parties a one-year scheduling date — and at that date, if there are no issues, the court is going to set the date for the dispositive hearing in most cases.
Speigel said this would create a framework within which most cases will be able to be heard within approximately two years.
“In the current system, cases can sit and languish for any number of reasons because it’s up to the parties to drive the process forward,” she said. “In the proposed new system, that won’t happen — or shouldn’t happen — because the dates are being set and they will be very difficult to adjourn.”
Another fundamental change being proposed concerns motions. As Speigel noted, the current system is a world in which a party can seek any type of interlocutory relief, which are decided by motions. But the report proposes to distinguish between different types of interlocutory relief, which it says would be more process-driven and more substantive in nature.
Speigel said working group members are interested in doing what it can to curtail a “motion culture.”
“So, for instance, a request to bifurcate, you know, that’s just what is the process by which this claim is going to be heard? A request for an injunction gives you some type of substantive right,” she said. “Such a request under our proposals would be decided by way of a directions conference based on limited materials and would not go to the full motion materials.”
Other changes proposed deal with the summary judgment process, expert evidence, enforcement processes and appeals.
Justice Boswell noted people say the problem with the civil justice system is one of resourcing, and while he agreed that resources have not kept pace with demand, he said that is dependent on the federal government increasing the judicial complement — something that he said the working group doesn’t expect to happen in the immediate future.
“So, we’re left with two options — we can either throw up our hands and say we don’t have enough resources to make this work well, so we’re all stuck with a system that has runaway costs and scandalous delays, or we try and find some means of attenuating costs and delays through adjusting the processes that we use,” he said. “Obviously, the government and the court has opted for the latter choice.”
The working group is accepting commentary on its recommendations until June 16, which can be sent via email to Jennifer.Smart@Ontario.ca. Responses provided may be disclosable under the Freedom of Information and Protection of Privacy Act.
Members of the working group will hold a webinar May 12 to discuss the reforms. Details for joining the webinar will be posted on the Superior Court’s website soon.