The group’s co-chairs presented the proposals to roughly 1,700 Ontario lawyers on Monday
Based on feedback by concerned litigators, the working group tasked with architecting a historic overhaul of Ontario’s Rules of Civil Procedure has drafted its final set of proposed reforms that brings back limited oral examinations and introduces a three-track system for civil matters, but preserves a controversial up-front evidence model.
The proposed reforms, which rework and update proposed changes to Ontario’s civil rules that the working group unveiled in April, were presented at a virtual event hosted by the Ontario Bar Association and The Advocates’ Society on Monday.
Ontario Superior Court Justice Cary Boswell, one of the working group’s co-chairs, told roughly 1,700 registrants at the event that the final set of proposals was submitted to Ontario Attorney General Doug Downey and Ontario Superior Court of Justice Chief Justice Geoffrey Morawetz on Oct. 31. The justice added he had already given Monday’s presentation multiple times to other groups of lawyers.
The final set of proposals will be published on the Ontario Superior Court of Justice’s website after it is edited and translated into French.
“I’m hopeful that that happens before the holiday season,” Boswell said, but added Downey had indicated last week that he was unsure this would happen.
Spanning 250 pages, the final set of proposals will likely not be subject to public consultation, Boswell said. The last round of public consultation, which concerned the controversial April proposals, garnered more than 200 responses that criticized the working group’s suggestions to improve Ontario’s justice system through changes like eliminating oral examinations and introducing an upfront evidence model.
“Our proposals, if they are accepted as offered or something close to it, will require almost an entire rewrite of the existing rule book,” Boswell said. Legislative drafters will then prepare the new regulations. Because changes of this magnitude to Ontario’s civil rules have not occurred since 1985, when the current rules were introduced, Boswell said he was unsure of the timeline for implementation.
“My best guess is we would be doing very well if we could start to roll out some of the reforms that will not impact significantly on court scheduling by the middle of 2026,” he said. However, it is not likely that substantive changes will occur until 2027. Changes will likely be rolled out incrementally across the province rather than all at once, Boswell added.
Below are some of the key takeaways from Monday’s presentation about the unpublished final proposals.
A large part of Monday’s presentation was dedicated to unveiling a proposed three-track system for routing matters through Ontario’s civil courts.
According to Allison Speigel, a partner at Speigel Nichols Fox LLP who also co-chairs the working group and presented on Monday alongside Boswell, the application track largely replicates the route that applications take in Ontario’s current system. Once the claimant has issued a notice of claim, the court will schedule a conference, where a judge will provide directions for all the remaining steps in the proceeding. This could include ordering cross-examinations, mediation, the exchange of factums, or a summary hearing.
While summary hearings will typically be paper-based, the judge presiding over a hearing will have the discretion to order witnesses to provide oral testimony, Speigel said.
The summary track will be reserved for matters involving less than $500,000 but more than $50,000. Claims involving less than $50,000 are typically heard in small claims court.
As with the application track, parties on the summary track will head to a so-called directions conference where a judge will decide whether to schedule a summary hearing. These hearings will also be paper-based but judges will be given discretion to order witnesses to provide live testimony.
Finally, the trial track is for matters where more than $500,000 is at stake, and gives parties the opportunity to pursue a traditional trial. Parties will have a one-year period to meet certain document production obligations before a scheduling conference takes place.
The working group has proposed that all out-of-court examinations be video recorded as well as audio recorded.
When the working group introduced its previous set of proposed reforms in April, one of the suggestions that attracted the most backlash was eliminating oral examinations. Litigators argued the change could paradoxically make litigation more complex or prevent lawyers from meaningfully testing the veracity of evidence, though some acknowledged it could help shorten lengthy dispute timelines.
Boswell said that an “overwhelming majority” of people who provided feedback during the consultation process argued oral examinations were necessary for the litigation process.
Kathryn Manning, a founding partner at DMG Advocates who co-chaired Monday’s event, told Law Times that the working group is now suggesting that parties on the trial track have access to “what they’re calling focused examinations, which will be like oral discovery, but they’ll be limited to 90 minutes.”
Speigel said during the presentation that the focused examinations’ purpose “is to give a brief period of time in order for people to assess credibility, assess likability, if they want to have a settlement discussion, if they want to poke and see if there are holes in the evidence.”
Manning notes that the OBA, where she previously served as president, and other legal organizations “had some pretty strong advocacy for preserving oral discoveries in the appropriate circumstances.
“I think people are pleased that they’ve listened to that feedback, it seems like,” Manning adds. However, she says she and other members of the bar still need to see the working group’s final set of proposals in writing before they can meaningfully assess the changes to oral discovery.
Another proposal that garnered criticism when it was introduced in April was the switch to an up-front evidence model, which requires more documentary production earlier in the dispute process. Boswell said that one of the primary concerns with the model was how it frontloaded costs, which risked pricing out smaller law firms with fewer resources.
To assuage those concerns, Speigel said the working group is proposing that in the context of the trial track, during the one-year period prior to the scheduling conference, witness statements will only need to be produced for the parties themselves.
“For non-party witnesses, there will only be a requirement to produce will say statements, being a summary of the evidence that is intended to be given,” Speigel added. “The actual witness statements for the non-party witnesses will be delivered later in the process after the one-year scheduling conference.”
Physicians involved in trial matters will only be required to produce their notes in the first year, Speigel said.
