Should We Defund the Civil Rules Committee in Ontario?

Past Ontario Bar Association president David Sterns argues that we should defund the Ontario Civil Rules Committee. In its place we should involve new voices and take an inter-disciplinary approach to building the committee. I agree.

We need to either supplement or change the Civil Rules Committee. We must look towards engaging new people. Let’s not just tinker around the edges. Let’s engage new voices. We need new perspectives. We need to hear what lay people think. We need to hear the insight of experienced practitioners and judges. We need to hear what articling students and law students think. We need to hear what young lawyers think. We need to hear what program developers think.

I am hopeful that we are on the path to great change. Recently, the Superior Court of Justice released a Notice to the Profession (click here). The Notice shows movement towards change in our courts.

For example, pre-trial records are now capped at 10 pages. No voluminous briefs are allowed. Voluminous records such as pleadings, treatment notes, accident benefit files, and so on, are not to be filed with the court by hyperlink, a dropbox, or otherwise. Parties may hyperlink to expert reports. The briefs are to be delivered electronically.

Additionally, motions are to be heard in writing as the default. Hopefully, hearing motions in writing will nudge litigants away from old school tactics of litigating by instalments.

Despite the extraordinary steps the Ontario courts have taken during COVID, we must go further. Requesting ad hoc submissions from the public is a good step. But, it is not enough. We must have a formalized and easy way for people to make suggestions for change. Such ideas could be:

  • A website dedicated to submissions for the Civil Rules Committee;
  • A Chatbot, linked to an existing or new website, to handle suggestions from interested individuals; or
  • An organized Zoom call, where people can opt-in to speaking, to the Civil Rules Committee.

Whichever path forward is chosen, I am confident that hearing from a variety of perspectives will enhance the civil litigation process.

 

(Views are my own and do not represent the views of any organization.)

 

 

Comments

  1. David Collier-Brown

    Color me interested: this kind of semi-forced change is surprisingly common in computer-related businesses, and is called a “pivot”.

    That community has lots of experience in what can be scary changes, and some folks who do it as a career: I’ve worked for two different ones at different times in my career, and greatly enjoyed it both times!

  2. Great article Heather!

  3. Heather Hui-Litwin

    I looked at the composition of the committee and I was dismayed to learn there was no lay person amongst its members. Feedback is so important in a legal system that is designed to serve the public, not lawyers and judges. I agree wholeheartedly that perspectives should be sought from all interested individuals.

  4. Rhona DesRoches

    As a layperson who has tried on more than one occasion to engage the Civil Rules Committee it was very apparent that there was no interest in what the public has to say about the systemic ways our court system works against them. Though we wrote on three separate occasions, we did not receive a response to our concerns.

    A 2017 letter to the Committee excerpt is below because for car crash victims the court system has been hijacked by auto insurers who use the courts as a club to squash claims and in some ways Ontario’s justice system has been made into a de facto auto insurance quality control without any real control itself. The FAIR letters contained the quotes of Ontario’s justices who spoke out about the expert witness problems within their decisions so the Rules Committee isn’t just ignoring what we are saying about the flaws in the administration of justice.

    This is no small problem for the public when the Rules are plainly ignored even by the Rules Committee itself and Ms. Douglas makes a valuable point that hearing from various perspectives including the triers-of-fact and the public would enhance the function of the court process. The public’s trust in the justice system is on the wane and perhaps the lack of public voice in the mix is the change-maker needed because 3 years waiting for an answer just isn’t cutting it.

    From our 2017 letter to the Civil Rules Committee:

    “Why aren’t the lawyers, who knowingly participate in bringing in the flawed expert opinions and evidence into Ontario’s courts, held to account for undermining the administration of justice?

    Why are Ontario’s medical experts, who have been the subject of repeated adverse judicial commentary (4) due to partisanship or shoddy assessment reports and testimony, being given a free pass? Shouldn’t the experts who don’t comply with the rules of the court be permanently barred from participating in the justice system? Where are the consequences for the expert who misleads the courts?

    It’s become obvious that the medical evidence used in our courts is of such poor quality that justice is routinely being subverted to favour the party that can best afford to manipulate the evidence. Recent exposure in the media underscores how profitable it has become for Ontario’s experts to ignore the court’s rules when there are no consequences for having done so. (5)

    The Civil Rules Committee should not ignore the over 58,000 auto insurance related cases on the court docket in 2016. (6) The number of cases is evidence that insurers are using our courts as a tool to increase profits with the use of partisan experts that they hope the judges will not spot in time to head off the negative impact on a case before the court. Insurers are counting on the judges in Ontario to underperform as gatekeepers for experts, and if it doesn’t work one day, it will the next, because the expert comes in clean each and every time without a mechanism to block those who disrespect the court.”

  5. I am all for reforming or modernizing the Civil Rules Committee. I’m just not sure that “defund” is the appropriate terminology here (leaving aside the very poor parallels with contemporary calls for defunding or diverting resources).

    The Civil Rules Committee does not receive “funding.” The PAS site states,

    Appointees do not receive remuneration.

    The statutory authority for the Committee comes from s. 65 of the the Courts of Justice Act. Their scope is stipulated in s. 66(2), and includes a wide variety of issues, all of which are broadly defined enough to encompass substantive and widespread reforms.

    Composition of the Committee, found under s. 65(2), largely comprises of members of the bench. There is representation from the bar (s. 65(2)(h-j)), including appointments by the Law Society of Ontario. The law society has recently publicized a call for applications to external appointments, which include the Civil Rules Committee. Applications close Aug. 15, 2020.

    Rather than “defunding” a committee that has no funding, I’d call for a broader segment of the bar to apply for these roles, and for Convocation to consider a wider range of criteria, including technological competence, in deciding who to fill them.

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