The orgs penned letters to the attorney general arguing a June 16 feedback deadline is too soon
At least three lawyers’ organizations have asked Ontario Attorney General Doug Downey to extend its “ambitious” timeline for overhauling Ontario’s Civil Rules of Procedure, arguing that the roughly two-and-a-half-month period that the public was given to provide feedback about a series of sweeping proposed reforms is inadequate.
In April, the Federation of Ontario Law Associations, the Ontario Trial Lawyers Association, and Canadian Defence Lawyers wrote separate letters to Downey expressing various concerns about the June 16 deadline that the Civil Rules Review working group set for public feedback on its proposals.
The CRR working group was established under a two-year initiative that 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 published its proposals – which include reducing the scope of discovery, resolving procedural issues through conferences rather than motions, and more – in a 122-page report in early April.
Noting that the working group had 16 months to draft their proposed civil rules reforms, FOLA said in its April 22 letter to Downey that the relatively short timeline stakeholders have to provide feedback “makes meaningful member consultation challenging, as FOLA intends to engage their members throughout Ontario to ensure a province-wide vision for change is considered and proposed.”
In a letter dated April 16, Canadian Defence Lawyers said that prior to the report’s release, the working group “made no mention” of one of its most controversial proposals: getting rid of oral examinations during the discovery process. “This radical change came as a complete surprise to the litigation bar” when the report was published, CDL said.
Sandev Purewal, president of the Ontario Trial Lawyers Association, meanwhile told Downey on April 22 that the entire overhaul project “has been undertaken over an ambitious timeline.
“Given the magnitude of the suggested changes and the impact on all future litigants’ ability to achieve just decisions, it is vital to get the changes right. You have asked that any submissions not simply point out anticipated problems but also provide alternative solutions,” Purewal wrote.
He added, “We ask that the deadlines for this project be reconsidered so that the government can achieve meaningful change, creating efficiencies and improving our civil justice system, to the benefit of litigants, the judiciary and taxpayers.”
Speaking with Law Times on Wednesday, leadership at all three organizations expressed concerns about how overhauling the discovery process, one facet of the proposed reforms, would negatively impact their members and their clients.
In its report, the CRR working group noted the “burden of discovery” under the current model, which requires parties to comprehensively identify and produce documents related to a case and submit to pre-trial examinations under oath. To reduce the “complexity, delay, and substantial costs” introduced by this model, the working group proposed requiring parties to only disclose documents that they intend to rely on as well as all known adverse documents, which need to be produced at the time a pleading is served. The working group also proposed eliminating examinations in favour of sworn witness statements.
In another letter FOLA sent to Downey on April 28, the organization argued the document production proposal “front-loads enormous costs that normally do not arise until much later in the civil litigation process.” FOLA Chair Allen Wynperle told Law Times that those early costs – which could total five figures and would likely be charged via retainer – would put “everyday Ontarians at risk of not being able to pursue their rights.”
Wynperle argues that in contrast to the working group’s intent to make litigation less burdensome, turning from oral examination to affidavits could potentially make litigation more complex. As a personal injury litigator, Wynperle says he’s heard from peers concerns that if they must get an affidavit from a doctor, for example, that doctor might want to get their own legal counsel involved in the case, thereby expanding the scope of the dispute.
OTLA president-elect Mary-Anne Strong says the organization’s members, who represent plaintiffs in personal injury litigation, worry the affidavit requirement exacerbates existing issues with doctors. “We currently have a problem when we seek a consultation with a doctor to discuss their notes with them or ask them to prepare for trial,” Strong says.
Asking them to prepare an affidavit outlining diagnoses, treatments, and observations in a tight timeframe will burden doctors and could “create some further delay and extra cost, certainly for litigants,” Strong adds.
Lisa Pool, president of CDL, says oral examinations can be critical in insurance cases. “There are a lot of things that do not come across in medical records that you can only get by meeting the individual. Paper doesn't tell the whole story,” she says. With the elimination of oral examinations, “You lose so much of what we feel gets the matter resolved,” she says.
Whether you’re representing the plaintiff or the defence, “you want to know what’s not in the records, not necessarily rely on what another lawyer tells you is relevant,” Pool adds. “We all do our best for our clients, but we’re not perfect, and the discovery is a good check and balance on that system.”
Wynperle says he’s spoken to a broad range of lawyers who share concerns about the elimination of oral examinations. “It's not like I’m hearing from just one group,” he says. “It’s not just the plaintiff lawyers or just the defence lawyers, or just the big firm lawyers or just the small firm lawyers.”
In its April 28 letter to Downey, FOLA noted that only one of the CRR working group’s 14 members practises in either personal injury, insurance defence, estates, real estate, or small business disputes. According to the organization, the bulk of Ontario’s civil litigation involves these practice areas. However, the 13 other lawyers in the working group largely serve “big businesses and institutions,” FOLA said.
“When asked to address this issue during the limited consultations we have had to date, we have been told to take comfort in the fact that one of the co-chairs includes a lawyer practicing in Mississauga and a former lawyer practising in Barrie – this clearly does not sit well for much of our constituency,” the FOLA letter said.
“It is very apparent that the proposed reforms do not account for procedural needs in other areas of practice, particularly personal injury (which accounts for a sizeable majority of civil proceedings in Ontario), or class actions.”
Strong says she shares FOLA’s concern. “What perspective or what lens do you look at the problems in our system [with]? You usually fall back on your own experience,” she says.
“These rules may work very well for one type of law, but very experienced personal injury and insurance defense lawyers, medical malpractice lawyers on both sides of the bar are currently expressing very serious concerns about this proposal.”
An April 4 letter CDL sent to the CRR’s co-chairs noted that the organization explicitly asked that the working group include an insurance defence litigator. However, the organization said the request was denied, even though “personal injury and insurance litigation forms a substantial component of Ontario’s civil litigation caseload.”
CDL also accused the CRR of not being transparent and not backing up their proposals with data.
“There is no data in the report, so we don't see any evidence,” Pool says.
“It doesn't talk about how many types of claims go to trial, how many claims are issued each year, what the actual cost of examination for discovery is… those things are missing,” she says.
A representative for the attorney general’s office did not respond to a request for comment.
