No Half Measures: Four Big Ideas in Ontario’s Civil Rules Review

Ontario’s Civil Rules Review Working Group has proposed the most comprehensive reform of Ontario’s Rules of Civil Procedure since their introduction in 1985. The Consultation Paper released in early April weighs in at 122 pages, with recommendations affecting every major element of civil litigation within the province.

The Working Group’s overarching goal is to get “all cases heard within two years.” This is certainly not unambitious, given that the status quo average is between four and five years. Quicker times to disposition, the Working Group hopes, will generate lower legal bills and better access to justice.

There seem to be four big themes running through the dozens of specific proposals in this document:

#1 Do litigation Work Sooner, Not Later, in the life of the case

#2. More advocacy in writing, less orally.

#3. Aim for good, not perfect justice

#4 Fight Less, cooperate more on the small stuff

The summary below, with links to the relevant sections in the Consultation Paper, may help busy litigators draft feedback, which the Working Group seeks by June 16, 2025, via email to Jennifer.Smart@Ontario.ca.

#1 Do Litigation Work Sooner, Not Later, in the Life of the Case

Civil disputes require parties and their lawyers to make arguments, to gather and present evidence, to seek settlement, and to question adversaries. The Working Group wants more of this work to happen sooner in the life of each dispute.

• Pre-litigation protocols would require parties, before they start or defend formal claims, to do certain things. These include summarizing their claims, disclosing certain documents, and talking about settlement.
• The Up-Front Evidence Model means that parties must provide much of their evidence during the pleadings stage or very quickly thereafter.
• A One Year Scheduling Conference would mark what should be, if the Working Group has its way, the halfway point on the road to final adjudication. This is meant among other things to keep the parties on track during the first 12 months, which will certainly be more demanding than they used to be.
• Many new timelines and deadlines would be introduced, with much more serious consequences for blowing through them, including monetary penalties up to $500 per day and striking out litigation documents.

#2. More advocacy in writing, less orally.

Getting parties and lawyers together in a room – even if it’s a Zoom room – costs significant time and money. In several places, the Working Group has called for a shift to written forms of advocacy.

• The elimination of oral examinations for discovery is perhaps the single most dramatic and controversial proposed change. Instead of providing evidence orally out of court, parties would file written witness statements. Instead of questioning their adversaries, they would have the opportunity to request additional documents from them, and require responses to written interrogatories.
• The Paper Record+ Process would try to get more matters adjudicated on the basis of documentary evidence (which is relatively cheap), not oral evidence (which is usually more expensive).
• For non-jury trials, a presumption will be created that opening statements will be in writing. (Removing from Ontario civil courts yet another of Hollywood’s most exciting scenes).

#3. Aim for good, not perfect justice.

The Working Group has identified at least a dozen current rules that arguably enhance substantive or procedural justice, but impose costs in time and money that are disproportionate. They would eliminate or simplify these, hopefully giving litigants better “access” while paying only a moderate cost in the quality of “justice.” When it comes to lawyers’ litigation practices, the Working Group makes a similar argument, calling out fix Ontario’s “maximalist culture of litigating” and trying to moderate it.

• Truces would be imposed on most “battles of the experts,” which are of course very expensive. Parties would in most cases have to agree upon a joint expert, or at least a “hot tub” meeting of their competing experts to narrow their disagreements.
• Some relevant and non-privileged documents would no longer see the light of day. The new legal standard for documentary disclosure (“Modified Reliance-Based Disclosure”) would only require producing those upon which a party intends to rely, as well as any known documents that would be helpful to the other side.
• Renewed efforts would be made to get more matters heard through summary proceedings, rather than full trials. The failed summary judgment motion, a vampire which currently sucks up great quantities of time and money, would be slain by requiring judges to issue a dispositive order after a summary hearing.
• Allowing service of a Claim by email, as the Working Group proposes, might in some cases leave defendants in the dark about the existence of a lawsuit, but the cost savings were appealing. And so it would be allowed, under certain conditions.
• Procedural motions in Ontario often cost as much as a full trial ought to cost. Many motion dates would be replaced with less formal Directions Conferences at which judges would have powers to make most procedural orders.
• The Working Group sympathized with litigants who walk the long and expensive path to a final judgment, “only to find that the road to realizing on that judgment remains long and fraught with hurdles.” Quicker tangible results would hopefully be delivered after trials, by reducing judgment debtors’ options to resist enforcement and letting single Court of Appeal judges (not panels) handle more of that court’s work.
• Cost awards would be simpler and more prone to agreement or quick adjudication, although less fine-tuned to all the details of what happened in each case. Partial indemnity would be fixed at 60% of actual fees paid, full indemnity at 100%, and presumptions would be legislated for the awarding of one or the other of these for every case. The current substantial indemnity scale, a sort of half-way house between the two, would apparently be eliminated.

#4 Fight Less, Cooperate More on the Small Stuff

People don’t hire litigators in order to make friends with their adversaries. But the Working Group would try to restrain adversarialism to the more important issues in dispute, and get lawyers and parties cooperating about more of the small and incidental stuff.

The goal is to get to a reasonably just settlement or adjudication more quickly and cheaply, even if that means giving up some opportunities to strengthen our clients’ positions. The Working Group quotes the Supreme Court of Canada’s call for a “culture shift” at the very beginning of the Consultation Paper. While there is little evidence of any such shift in the 11 years since Hryniak, the Working Group is valiantly taking another shove at the boulder.

• A Duty to Co-Operate would require participants to seek settlement, avoid overworking files, and be civil and cooperative, among other things. This provision, which was perhaps inspired by similar language in Ontario’s Family Court Rules, gets the Working Group into one of the classic questions of legal ethics – how far should lawyers go in pursuing advantage for their clients?
• Representations Rules would effectively forbid parties to submit documents containing legally groundless or unprovable contentions. Also out of bounds would be documents presented for “improper purposes” including delaying resolution or driving up the other side’s litigation costs.
• Service of documents, in the Working Group’s view, offers too many opportunities for gamesmanship. Defendants would be required to confirm receipt of originating process. Lawyers who have communicated on behalf of a defendant would no longer be allowed to decline service on their behalf.

There is no shortage of ideas in this Consultation Document, but also no reason to consider it set in stone. Hopefully a fulsome set of responses from interested and knowledgeable parties will speed the Civil Rules Review on to success.