Don’t Just Change the Rules, Change the Game: The Rules Overhaul and Ontario’s Legal Ecosystem

It has been nearly six months since Chief Justice Morawetz called for an overhaul to Ontario’s Rules of Civil Procedure. One hopes that the delay in starting the process means that change will be more fundamental than a simple rewriting of the Rules. As I wrote shortly after the Chief Justice’s speech at the opening of the courts in October 2022, tinkering with the Rules will not address the access to justice crisis that has been staring us in the face for decades.

Since the changes to the Rules in 2010, cost and delay have simply increased. The principle of proportionality, around which those changes were built and which the Supreme Court of Canada emphasized in Hryniak v Mauldin in 2014, has for the most part made very little difference to the way civil litigation is conducted. Similar Rules reform efforts, undertaken at least once per decade for the past half century, have attempted to reduce cost, complexity, and delay, to very little avail.

The conduct of civil litigation has remained largely the same because the ecosystem in which the Rules operate has remained largely the same. The civil justice system continues to be chronically underfunded, lawyers continue to be incentivized to complicate and protract litigation, and there is very little recognition that the public doesn’t want streamlined Rules and access to lawyers – they want a solution to their legal problems. I discuss these issues under three headings: political will, legal culture, and lawyer-centred processes. Each of them must be addressed if the Rules overhaul is to facilitate access to justice.

1. Political will

In the wake of the COVID-19 pandemic, the Ministry of the Attorney General has made great strides in digitizing many aspects of our court processes. It is now (ostensibly) easier to commence claims and submit court documents online, many hearings are by Zoom, and the fax machine is a thing of the past.

Without the political will to fund and support these processes, however, the digitization of our courts system will change very little. For example:

• Minimal progress has been made towards the digitization of the courts’ back-office systems. This means that, while it is easier to submit court documents online, a human being still has to process those documents – resulting in processing delays and unacceptably high rejection rates. Scheduling continues to be enormously difficult, with different processes at different courthouses. In his October speech, Chief Justice Morawetz spoke of an end-to-end case management system for the Superior Court, but the procurement process he described appears to have stalled.
• CaseLines was implemented as a document management solution so that documents for hearings could be uploaded and shared by parties and judges. Yet parties are still required to file their documents separately with the court, and the practice directions regarding CaseLines have been quite onerous, especially on solo practitioners. Courtroom Wi-Fi is often embarrassingly slow, so participants often have to download PDFs, removing some of the efficiencies of CaseLines.
• Zoom hearings still require human judges, yet the judicial complement on the civil side is only 60% of what it was before COVID. Of course, this is the responsibility of the federal Minister of Justice and not Ontario’s Attorney General, but it is still a matter of political will. The political focus is on criminal justice (a vote-getter) and not on civil justice, where judicial vacancies abound. I should note that tribunal appointments are the province’s concern, and the failure to sufficiently fund and staff the province’s tribunals is bringing that system to its knees.

2. Legal culture

In Hryniak v Mauldin, the Supreme Court of Canada brought attention to the adversarial culture that pervades our legal system. Winning is prioritized over solutions, trial is seen as the ultimate goal, and point-scoring and brinkmanship leads to a motions culture that bogs everything down. Without addressing the wider legal culture in which the Rules operate, the effectiveness of any overhaul is going to be stifled by that culture.

Hryniak called for culture change, but culture doesn’t change simply by being told to change. It changes in response to stimuli. These can include:

• Changing incentives. Lawyers need to be more accountable for how they charge and get paid for legal services. The billable hour model provides an incentive for increased complexity and procedural manoeuvring.
• The “loser pays” costs rule increases the tendency toward cost and delay, because it provides incentive to spend on litigation with a view to winning, with the knowledge that those costs can be recovered. One solution may be to introduce a fixed costs regime as exists for certain processes in the UK and other jurisdictions.
• Opening up the provision of legal services. This will encourage innovation and break up lawyers’ and paralegals’ monopoly, thereby bringing down the cost of legal services.
• Increase public legal education and pathways to legal services. This will enable people to make informed decisions about the legal services they choose, and also be more engaged in how their legal needs are met (which will help to hold service providers accountable, thereby disincentivizing needless cost and delay).
• Taking seriously the existence and operation of other legal systems, especially those that do not follow the adversarial model, and learning from those systems. I am thinking here of Indigenous legal traditions, which need to be included and reflected much more in Ontario’s civil justice system if reconciliation (especially #42 of the TRC Calls to Action) is going to be meaningfully pursued.

3. Lawyer-centred processes

The current view of many Ontario lawyers seems to be that, yes, the civil justice system is complicated and expensive, but the answer to the complexity is greater access to lawyers and the answer to the expense is Legal Aid.

Quite apart from the extreme unlikelihood of an expansion to Legal Aid eligibility, we need to move away from this lawyer-centric approach to access to justice. The profession does not exist to act in lawyers’ interests, but in the public interest. Most members of the public simply want a solution to their legal problems. If there existed a simple process that they could navigate without a lawyer, they would probably prefer it – as evidenced by the enormous success of British Columbia’s Civil Resolution Tribunal.

Before long, members of the public will be able to take their legal problems into their own hands with the help of apps powered by artificial intelligence. Will this present risks to the public through the provision of unregulated legal services? Will our system of precedent be undermined because it’s too expensive and time-consuming to let the courts decide? Oddly, not that many people are asking these questions[1] – but it is clear that the Rules overhaul needs to be very drastic in the face of rapidly approaching and unprecedented change.

In conclusion, the promise of more efficient and streamlined Rules of Civil Procedure is superficially attractive. But if there is no political will to support the overhaul, no attempt to address or counteract the wider legal culture in which the new Rules will operate, and no efforts to make the new processes responsive to the needs of users (i.e. the public), then we might as well be changing the dress code on the Titanic. Those fancy new shoes won’t do much good when the waters of the Atlantic start lapping over them.

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[1] Amy Salzyn is a notable exception: see “AI and Legal Ethics” in Florian Martin-Bariteau & Teresa Scassa, eds, Artificial Intelligence and the Law in Canada (Toronto: LexisNexis Canada, 2021).