Lawyers say they are generally happy with the report, but seek clarity on issues like implementation
A working group’s final suggestions for how to overhaul Ontario’s civil litigation system proactively address concerns that the group’s prior set of proposals raised last spring, but leave unanswered several key questions, including those related to implementation, lawyers say.
Made available to the public in December, the working group’s 233-page report is the latest development in Ontario’s historic effort to resolve access to justice issues – such as long court delays and high litigation costs – by reforming Ontario’s Rules of Civil Procedure. Ontario Attorney General Doug Downey and Chief Justice of Ontario’s Superior Court of Justice Geoffrey Morawetz launched the working group in 2024.
In November, one of the working group’s co-chairs said the final report will likely not be open to further public consultation. If accepted, the proposals will be translated into regulations by legislative drafters.
The final report responds to concerns that litigators and legal organizations across Ontario began raising last April, when the working group presented a set of reform proposals that included major changes such as eliminating oral examinations, introducing an upfront evidence model, and shortening litigation timelines.
Below, Ontario Bar Association President Katy Commisso and McCarthy Tétrault partner Moya Graham highlight their key takeaways from the report – and what issues they still want to see addressed.
According to Commisso, the OBA’s review of the final report was conducted by a task force that aimed to be representative of the legal profession’s diversity. Its members include junior and senior lawyers from every judicial region in Ontario, with a wide range of practice areas. Its members also include not only litigators but also lawyers who provide arbitration and mediation services.
The task force was overall “pleased that many of our concerns and recommendations were addressed in the final report,” Commisso says. “In that sense, I’d say we're moving in the right direction.”
One of the OBA’s concerns was last year’s proposal to eliminate oral examinations for discovery to reduce litigation timelines. The working group acknowledged in its final report that the proposal ranked among the most poorly received and proposed, instead, that oral examinations be capped at 90 minutes in certain trial matters.
Commisso said the OBA is happy with the development, which aligns with the association’s suggestion to the working group that oral examinations remain available in limited circumstances.
Another compromise struck by the working group was to reduce the range of circumstances in which courts could order parties to use joint litigation experts.
“That got a lot of pushback, and in response to that, they didn’t say ‘no joint experts’... but they went to a middle ground,” Graham says. Now, the working group has proposed that joint experts be “presumptively required” only if they’re providing expertise on “financial issues,” such as quantifying economic loss or care costs in personal injury matters, or real estate and property valuations in cases where the property primarily consists of developed land.
Quantification issues are “where you tend to see the least difference in the approach between the experts from the two sides in medical cases, in personal injury cases,” Graham says, adding the updated proposal alleviates concerns “significantly by limiting it only to quantification experts.”
Commisso agrees that the new joint expert proposal was a positive development. “We think parties should be encouraged rather than required to use joint experts where appropriate, with consequences for unreasonable denials,” she says.
Graham also points to the working group’s updated stance on the service obligations of lawyers who have been representing parties in pre-litigation discussions or negotiations. Last year, the working group proposed allowing these lawyers to be served notices of claim, regardless of whether they had been retained to defend the claim.
The working group argued that such a rule could help parties avoid situations in which they are forced to spend time and money arranging for personal service. However, many lawyers pushed back, arguing that rule could discourage lawyers from engaging in pre-litigation settlement discussions or providing early, limited advice to parties.
“Again, they didn’t abandon that idea, but the working group’s gone to a middle ground where they’ve said, if you’re a lawyer involved in pre-litigation matters, you are not obliged to accept service,” Graham says. However, if a lawyer refuses to accept service and later represents the client in the same matter, “there could be some cost consequences associated with that,” Graham adds.
“They’ve heard the feedback, and they’ve gone to a middle place… without eliminating the process that they felt would be beneficial and helpful to streamline.”
Both lawyers identified issues that the final report failed to clarify.
One of the most attention-grabbing proposals introduced by the working group last year aimed to overhaul the current “complete” discovery model in Ontario’s civil litigation system, which requires parties to identify and produce “all documents relevant to any issue raised by the pleadings or the governing substantive law.”
The working group proposed instead that parties only be mandated to produce documents they intend to rely on in a case, as well as “all known adverse documents in their possession, control, or power.”
However, Commisso says the concept of “known adverse documents” was confusing.
“Our group has some concerns about that category of being unworkable in practice,” she says. The OBA proposed that the working group base its document production requirements on a hybrid of Federal Court and UK court rules, so that parties need only produce documents they intend to rely on, that tend to affect any party’s case adversely, or that tend to support another party’s case.
The OBA’s task force believed such a requirement would provide “more clarity and predictability than a category of documents called ‘known adverse documents,’” Commisso says. Rather than clarifying the concept, “based on our initial review of the final policy paper, it just seems that that terminology has been removed completely,” she says.
Graham, meanwhile, questioned what the implementation process for the new system would look like.
While the final report is more than 200 pages long, Graham notes that the transition section takes up only about half a page. “It acknowledges that until the rules are adopted, they can't come up, truly, with a formal transition plan,” she says.
The working group recommended that new changes be implemented in stages rather than all at once across the province. However, actual details are scant.
“They acknowledge that there's going to be a lot of retraining that needs to happen. New processes need to be created. New forms need to be created. The implementation of this is going to be a very significant undertaking,” says Graham. “How that all shakes out and how we transition – assuming these rules get adopted from our current system to that system – is to me the biggest unknown and the thing that requires the most clarity.”
“I think it's one of the largest sources of anxiety,” she says.
