Ontario Civil Rules Reform – the Good the Bad and the Ugly

Renowned for its dysfunction, the leadership of the Ontario Superior Court deserves some credit for belatedly admitting the court to be in crisis. Acknowledging the need for bold, fundamental reforms it tasked the Civil Rules Working (Working Group) with identifying ways to reduce complexity, costs and delays and stated that “minor amendments (to the Rules) would be insufficient.” Despite that mandate, the Working Group in their Phase 2 Consultation Paper has proposed implementing further rules and procedures, changing a handful of existing Rules and rearranging the balance. One step forward, two steps back.

Handicapping the Working Group

Initially, the Working Group was handicapped by the courts near complete ignorance of its own operations (i.e., how many trials are held, how much judicial time is used by each, how much time is spent dealing with motions, what relief is being sought via motion etc.), with the Superior Court historically tracking little more than the number of cases commenced (66,212) annually. Thus, the Working Group was tasked with reducing cost and delay without the benefit of any real data as to the drivers of either. It further appears that the Working Group failed to consider the ‘litigation pyramid’ given that case management was extended to all cases (though many settle throughout the litigation process), including many which currently don’t require it. Likewise, it is unclear the Working Group gave consideration to the fact that the Rules would increasingly be consulted by non-lawyers, as the percentage of self represented parties increases.

Summary of Proposals

To their credit, the Working Group came up with a number of good ideas, including having one online entry point to the system (whether for action or application), increasing the use and scope of Case Conferences (renamed Directions Conference), broadening the applicability of summary judgment proceedings, aiming to resolve the bulk of civil actions within two years and simplifying the process for appeals. The Working Group also advanced a number of ill-conceived ideas, including generally increasing, rather than reducing complexity, increasing judicial involvement in each case (despite a shortage of judicial resources and a paucity of evidence that such increased judicial involvement has had any benefit in family law where it has been utilized) and generally eliminating discovery in place of relying upon parties to ‘be honest and forthcoming’ which if realized, would largely eliminate the need for civil courts. Other poorly thought-out ideas include accelerating (expensive) trial preparation (preparation of witness statements) to earlier in the process and an increased reliance upon parties cooperating. The ‘streamlined’, supposedly less complex process, as envisioned by the Working Group, is laid out below.

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Commencing Claims

The first reforms proposed relate to claims. A few of these are well thought out, including the use of a standard online form to commence proceedings, whether action or application (though the Working Group apparently didn’t address the arbitrary division of jurisdiction governing Applications between Superior and Divisional Court), allowing service by email and deeming matters served when set to a lawyer acting on behalf of a party. Like other jurisdictions, the Working Group proposes allowing parties to unilaterally discontinue matters, subject to potential cost consequences.

Other proposed reforms add cost and complexity. The most significant of these would be the addition of Pre-Litigation Protocols, which are a series of proposed steps parties (commencing with personal injury claims) must follow before initiating a claim, chiefly involving the provision of various information. This involves, among other proposed steps, issuing a notice letter 90 days prior to commencing a claim, setting forth the details of the claim and thereafter, providing all documents which currently would be found in plaintiff’s Affidavit of Documents. This of course requires a much greater investment of time and money up front by plaintiff’s counsel, which should act to reduce the number of claims filed, by making more claims cost prohibitive. Moreover, determining whether compliance has proven sufficient should generate a cottage industry of summary judgment motions (similar to what currently exists for determining whether there has been compliance with the 10 day notice period under the Municipal Act, 2001), which will divert court resources to determining the ‘law of rules,’ which outcome the Working Group had indicated it had hoped to get away from.

Removal of Discoveries

The most significant, if ill conceived change proposed is the removal of discoveries. Given the up front exchange of evidence, this would perhaps not have much impact where Amazon litigates a technical document driven matter against Microsoft, with each represented by counsel comprised of the Working Group members or the firms where they are employed. Yet for those lawyers in the trenches or acting against self represented parties (who for instance may not have clearly articulated their claims or provided coherent documentation outlining same), this serves to both eliminate notice of the case to be met and removes the opportunity to confront opposing parties or test their evidence, other than at trial. From personal experience, a significant number of claims or defences evaporate upon testing, though prior to the conclusion of discoveries, parties (and their counsel) may be utterly convinced of their cause. For those matters that do reach trial, it can be anticipated that each will require more time, assuming cross examination remains permitted.

While the Working Group makes reference to the U.K. getting by without oral discoveries, as the U.K. is currently jailing thousands annually for social media posts, it is perhaps not the legal system to emulate. The Working Group has apparently also failed to consider the significant role discoveries play in fostering settlement. For example, in our Small Claims Courts, which likewise don’t provide discoveries, a much higher proportion of cases reach trial (27% if we are to believe the information from the court’s annual report) than in Superior Court, where conceivably there are trials in 1-2% of cases, with Toronto holding 234 total civil trials in 2019. It remains unclear where the extra capacity will come from to conduct more trials, and if eliminating discovery increases the number of trials, it would seem to run at cross purposes to the reform’s stated goals.

The elimination of oral discoveries raises significant concerns regarding burden of proof, particularly in cases where crucial information lies exclusively within defendants’ control. Manufacturing defects, negligent maintenance claims, medical negligence cases, and insurance disputes come to mind. While the Working Group suggests that newly imposed duties to cooperate and tell the truth would address these issues, basic human nature raises serious doubts. For instance, could the defectiveness of the Ford Pinto or tobacco companies’ knowledge of cancer risks have been proven without comprehensive discovery?

Interrogatories are not a panacea. Rather than increasing efficiency they introduce an additional layer of complexity through lawyer intermediation, potentially reducing both the number and quality of admissions. This could paradoxically lead to more trials, directly contradicting the reforms’ stated goals of reducing expense and the utilization of scarce judicial resources.

Document production presents another critical challenge. When parties fail to voluntarily disclose and produce incriminating materials, moving parties would be left speculating about the existence of such documents in place of presenting (or gathering) concrete evidence of the existence of such documents (or forced to retain further experts to opine on documents likely generated). Instead of implementing these specific ill-conceived reforms, the Working Group would be further ahead adopting the American rules on oral examinations and requests to produce, while placing the burden on the parties resisting production to demonstrate an undue burden.

Increased Judicial Involvement Generally

While the Working Group proposes to require all cases (though many don’t require it) to attend a scheduling conference, anticipated to last for 15 minutes or less, around one year post commencement, it is not clear they have ‘costed’ this proposal. Given the number of matters filed annually (66,212), along with the fact the Superior Court has a set number of Judges assigned to the civil docket (perhaps 150?), if we assume that Judges can deal with 4 scheduling conferences per hour, that would mean 8 Judges, each spending 2000 hours per year handling settlement conferences, would need to be assigned to handling settlement conferences (and away from considering matters on the merits). I struggle to follow how assigning more than 5% of the civil bench to scheduling conferences will assist with backlog and delay and note that in any other industry, scheduling would be handled by assistants or secretaries.

Summary Judgment Reforms

The Working Groups proposals on summary proceedings contain both some good and bad ideas. Starting with the good, where parties are cross-examined, they would no longer be permitted to refuse to answer other than on very limited grounds, as is the current practice in the US courts and on construction matters in Toronto. That alone would eliminate much of the current gamesmanship and the resulting cottage industry of refusals motions. The Working Group has also proposed that once a matter is in the summary judgment process, a decision will be reached, with Judges retaining jurisdiction to hear oral evidence as necessary.

Otherwise, the Working Group has proposed a generally convoluted process for summary judgment, where matters that could currently be commenced via application qualify for summary judgment, and all other matters (i.e., employment) would require approval from a Directions Conference Judge (with yet more Judges assigned to handle such conferences and away from adjudication). This is deemed the “Paper Record + Process” though ideally, it is intended to reference a written, rather than a paper record, as paper should not play any role in our court system going forward.

Motion Reforms

The Working Group has proposed that all requests for interlocutory relief will begin with a Directions Conference, with the parties filing a Notice of Relief and up to 5 pages of submissions. Procedural matters may be resolved at the Directions Conference while matters requiring a more fulsome evidentiary record will continue to be heard via motion. To curtail abuse, Judges will continue to have the authority to prohibit a party from seeking further interlocutory relief without leave.

To conserve judicial time, while increasing time (and cost) to the parties, the Working Group proposes an elaborate ‘Factum’ process, with affidavits replaced with ‘moving facts,’ ‘responding facts’ and ‘reply facts’ document, with each such document attributing all facts to one or more specific witnesses, to be known as the ‘Facts Documents.’ Cross-examinations would apparently be limited to the facts attributed to each witness (likely generating further disputes as to the propriety of questions asked each particular witness), with factum length limited to 20 pages absent leave. Given parties could simply reference the ‘Facts Document’, this may in fact make Factums longer, contrary to the stated aim.

The Working Group largely missed the mark in regards to motions to withdraw. While recognizing that such motions are time intensive, cluttering up dockets and almost invariably granted, they then propose a requisition based process (not quite as practical as currently used in the Small Claims branch of the Superior Court but better than current Superior Court procedure) that would be applicable only where there are no deadlines or court attendances scheduled within the next 90 days. If we reference the Standard Timetable below, it would thus appear that this process would not apply at all within the first year, such that counsel would at minimum need to attend at a Directions Conference, in effect meaning this reform is no reform at all.

Expert Evidence

Given historical practice, expert witnesses are permitted to offer opinion evidence when such knowledge or experience goes beyond that of the trier of fact. Such experts always add significant expense, often between $10,000 to $30,000 each on modest cases. For certain cases experts are doubtless necessary, while for others, a Wikipedia article, Mayo Clinic post or YouTube video would likely suffice.

While expressing concerns about ‘hired guns’ the Working Group ignores a simple solution, namely allowing (as is the case in the US) experts to be cross-examined on adverse credibility determinations in prior cases, preferring to instead to rely upon stronger language in the acknowledgement form to ‘really tell the truth this time round.’

Otherwise, the Working Group proposes to require experts to confer before trial and to identify, via (further) report, the points on which they agree and disagree. Perhaps cognizant of the added cost, the Working Group suggests that a neutral facilitator or transcriptionist be present (adding further cost). In addition, the Working Group proposes to add a nebulous requirement to disclose any relationship with retaining counsel. To their credit, the Working Group proposed that in bench trials, expert evidence come in via report with an opportunity for cross, which is in accord with the practice of many leading counsel in the Province.

Overall

Despite lacking critical information on the functioning or demands upon the Ontario Superior Court, the Working Group has proposed some good reforms, which would reduce complexity and promote access to justice. It has likewise proposed some bad and downright ugly ideas (such as moving to a trust based system and eliminating the long held right to test evidence, if only by discovery). Ideally, the bar will provide the Working Group with candid and honest feedback, lest Ontario’s once every generation or so judicial reform project turn into the Ontario Superior Court’s equivalent of ‘new Coke.’