Proposed reforms to Ontario Civil Rules of Procedure hold promise but raise concerns: litigators

With proposals to introduce pre-litigation protocols, overhaul the discovery process, shorten dispute timelines, and much more, a working group’s report on potential reforms to Ontario’s Rules of Civil Procedure could jumpstart the most radical changes in decades to how litigation is conducted in the province.

Published in early April, the 122-page report by the Civil Rules Review working group proposes sweeping changes to the Rules of Civil Procedure, all aimed at tackling systemic issues in Ontario’s justice system. According to the group’s 14 members from the bar, the bench, and academia, these issues include significant delays and costs, which impede access to justice and are exacerbated by procedural rules that permit “a culture of maximalism.”

The working group added in its report that “small changes to the existing rules will not result in the kind of change that the CRR was mandated to deliver.

“Bold reforms are required. The stakes are high. The system needs to be rethought from the ground up.”

The report is part of a three-phase, two-year initiative that Attorney General Doug Downey and Chief Justice of the Superior Court of Justice of Ontario Geoffrey Morawetz launched in 2024 to make Ontario’s justice system more efficient and accessible. The working group will accept comments on the report’s proposed reforms until June 16. Some stakeholders, like the Federation of Ontario Law Associations, have already submitted a list of concerns.

Below, three Ontario-based litigators highlight their biggest takeaways from the proposed changes. 

Reducing the scope of discovery

Since the CRR working group published its report, one of the proposals that has drawn the most attention is overhauling the so-called “complete” discovery model. Introduced in 1985, this model mandates parties to identify and produce “all documents relevant to any issue raised by the pleadings or the governing substantive law.” It also requires parties to submit to pre-trial examinations under oath.

The working group noted the model was “significantly less burdensome” in the 1980s, when emails, for example, did not yet exist. Under its proposed model, discovery would mandate parties to produce only those documents they intend to rely on in the case as well as “all known adverse documents in their possession, control, or power.” In cases where a party is seeking supplementary documents that haven’t been provided, they can request them via a Redfern schedule – a table that lists the documents sought along with arguments for why they are relevant to the case. This new model would also eliminate oral examinations in favour of sworn witness statements.

Eleanor Vaughan, an associate at Hicks Morley, says the proposed model represents a “huge change for civil litigators.” However, she acknowledges the current discovery process can be burdensome.

“The writers of the report have real concerns about the costs and the time that’s involved in this kind of expansive discovery process,” Vaughan says. “In my own litigation practice, I often see files that involve the review of thousands, sometimes tens of thousands of documents.”

Producing those documents, finding mutually convenient dates for examinations, getting transcripts, handling refusals motions, and attending to other aspects of the current discovery process all add up to “a really costly process for litigants,” she adds.

Chloe Snider, a litigation partner at Dentons, agreed that the working group’s proposed discovery model would represent a culture shift. Snider is a member of a CRR subgroup that supported the working group’s study of potential reforms.

“There’s going to have to be a lot more heavy lifting up front, on both sides, in order to comply with these document production obligations, while at the same time, it takes off a huge burden of potentially reviewing millions of documents,” she says.

This front-loading of work could potentially have cost implications for clients, according to Michael Byers, a litigator at Crawley MacKewn Brush LLP, who says he could see some lawyers “needing to ask for bigger retainers at the outset of cases because the steps will be less staged” and more concentrated within the first few months of initiating a case.

Potential for abuse

While the proposed changes to the discovery process address longstanding concerns that the current model increases the length and cost of litigation, Byers and Snider say it also introduces the potential for bad faith tactics.

Under a model that doesn’t require disclosing all documents that might relate to a case, “parties who want to pretend as if a bad document doesn’t exist, for example – they would have an easier time doing that,” Byers says. He adds that while such scenarios would likely be rare, they are possible.

“Given how central oral discoveries are to litigation right now and our reliance on broad production rights, I feel like the removal of oral discoveries coupled with more limited production obligations could be open to abuse if a party didn’t want to produce information or documents,” Snider says.

She noted that in their report, the CRR working group identified concerns around conspiracy or fraud cases “where a plaintiff is bringing an action against someone who’s alleged to have committed a fraud, and then you’re relying on the alleged fraudster to identify the adverse document, and then you don’t have any ability to ask some questions.”

As the working group continues to mull proposed reforms, “making sure there are avenues by which parties can obtain the productions they need in cases where they're not getting access will be important,” Snider adds.