A bill passed last year quietly gave the attorney general new power over civil, family court rules
The Ontario legislature is considering a bill that would somewhat curtail the rulemaking authority it gave to Attorney General Doug Downey late last year, when it passed legislation that gave him the power to bypass long-standing procedures for changing Ontario’s civil and family court rules.
Introduced on June 4, Bill 46 would repeal a six-month-old provision that allowed the attorney general’s rulemaking authority to prevail over that of the Civil Rules Committee or the Family Rules Committee in cases of conflict. The two committees have traditionally been responsible for updating the rules governing Ontario’s civil and family courts.
Legal organizations expressed relief over the proposed amendment. Ontario Trial Lawyers Association President Mary-Anne Strong told Law Times in an email Wednesday that the Civil Rules Committee “performs an important function in our system and has members from both the bar and the bench. They identify rules which require amendment and conduct consultations with stakeholders to consider amendments.”
If passed, the proposed amendment in Bill 46 would ensure that the committee’s “important function will continue,” Strong said.
Allen Wynperle, chair of the Federation of Ontario Law Associations, says that while Bill 46 does not clarify what the next steps would be in the event of a conflict between the attorney general and the Civil Rules Committee, he believes “there’s been consideration given to this, and we look forward to being advised in due course about the process that that will be undertaken going forward.”
However, the amendments still leave intact other changes passed by the legislature in December, which give Downey broad authority to make, amend, or revoke civil and family court rules.
Katie Black, president of the County of Carleton Law Association, said in a statement Wednesday that before the December changes, “the Courts of Justice Act upheld an appropriate balance between judicial independence… and democratic accountability.”
She added that the CCLA “believes that it is critically important that judicial independence, including over court procedure, be maintained.”
Bill 46 comes amid heated debate over the future of Ontario’s Rules of Civil Procedure. The rules governing Ontario’s civil courts are being overhauled by a working group that Downey and Chief Justice of the Superior Court of Justice Geoffrey Morawetz launched in 2024. The group aims to improve the accessibility and efficiency of civil court proceedings.
Members of the public had until Monday to submit feedback about sweeping rule changes that the working group proposed in April. Since then, legal organizations and lawyers have raised concerns about the proposed changes, which include introducing pre-litigation protocols and reducing the scope of the discovery process. Concerns range from the proposals’ lack of grounding in data to their potential to increase upfront legal costs for Ontarians.
The working group launched by Downey and Morawetz, called the Civil Rules Review Working Group, is distinct from the Civil Rules Committee, the 29-member group historically tasked with making changes to the Rules of Civil Procedure. Under the Courts of Justice Act, the Civil Rules Committee’s changes must be approved by the attorney general before they go into effect.
In December, however, the Ontario legislature passed Bill 227, which amended several pieces of provincial legislation to “reduce regulatory burden and red tape.” One change to the Courts of Justice Act granted the attorney general the same authority that the Civil Rules Committee holds to update the Rules of Civil Procedure. Bill 227 also gives the attorney general the power to amend or revoke civil rules if he consults with the relevant chief justices and the chair of the Civil Rules Committee.
If the attorney general and the Civil Rules Committee make conflicting rules, Bill 227 states that the attorney general’s authority prevails. This is the provision Bill 46 is looking to repeal.
In a statement to Law Times on Wednesday, a spokesperson for Downey said the changes enhance “flexibility in rulemaking by allowing the attorney general to make court procedure regulations directly, rather than requesting regulatory changes.
“The government is ultimately responsible for the Rules of Civil Procedure and the administration of justice and must retain the authority to make changes without transferring regulatory power to an unelected body,” the spokesperson added. “The [Civil Rules Committee] will continue supporting modernization efforts and retains its authority to propose rule changes, subject to the attorney general’s approval.”
Days after Bill 227 received Royal Assent, the Advocates’ Society’s then-president, Darryl Cruz, penned a letter to Downey urging the attorney general to ensure that any civil rules changes he makes with his new powers “are the subject of meaningful consultation with stakeholders.” Cruz noted that the Civil Rules Committee has generally consulted “widely on any proposed changes to the Rules of Civil Procedure.”
Cruz added, “While we are prepared to move as expeditiously as possible to provide you with our input, rushing consultations on important issues simply does not serve Ontarians.”
The Federation of Ontario Law Associations has raised similar concerns. In January, members of the organization, including FOLA Chair Allen Wynperle, met with Downey to discuss the change enacted by Bill 227.
“My concern was the concentration of power,” Wynperle says.
“We’ve had a process where the [Civil] Rules Committee would study and consider amendments to the rules before undertaking recommendations to alter those rules. I think that was a good process,” he says. “Now, what we’ve done is we’ve changed that so that the attorney general can do it on his own.”
While he acknowledges that Downey is consulting with the Civil Rules Review Working Group that he launched with Morawetz, Wynperle said he is concerned that the group’s members lack the diversity to best represent the interests of Ontario’s litigators. Most of the group’s members practice in the Greater Toronto Area, for example.
Wynperle notes that Downey has indicated he is eager to move quickly to overhaul Ontario’s civil rules. “The fact that he’s changed that process and he may exercise his authority is concerning for sure,” Wynperle says.
