“Justice Delayed is Justice Denied”. This is a truism that has been reiterated many times over the years by the Ontario Court of Appeal. While it takes time to properly work up a complex case and get it ready for trial, there is no reason why it should take more than five years from the start of the litigation to the date of trial.
The main concern that we hear from both plaintiff and defendant clients is why litigation takes so long to go from initial consultation to a trial date. Some of the delay can be attributable to the high volume of cases and sorting through the backlog of cases still present due to restrictions on hearings following the COVID-19 Pandemic, however, the slow nature of civil litigation is fundamentally caused by the Rules of Civil Procedure governing civil litigation in Ontario.
Since January 25, 2024, Attorney General Downey and Chief Justice Morawetz launched the Civil Rules Review, mandated to identify issues and develop proposals for reforming the Rules of Civil Procedure to make civil proceedings more efficient, affordable, and accessible.
In April, 2025, the Civil Rules Review released their “Phase 2 Consultation Paper”, which has provided potential changes to the civil litigation system. The new system should be welcomed by both plaintiffs and defendants alike. The proposed changes can be viewed as shifting focus from litigating over procedure to how to solve the substantive issue in dispute between litigants.
At the heart of the proposed reforms is to have a more pragmatic approach to interlocutory processes, in particular changes to the discovery process, the exchange of evidence, and motions practice. The ultimate goal is for parties to have a dispositive hearing date within two years of the Claim’s issuance, which is currently unheard of.
The current system requires parties to negotiate a discovery plan, compile and exchange affidavits of documents, find mutually convenient dates for examinations, prepare for and attend examinations, obtain transcripts, and bring any motions arising from undertakings or refusals given at the examination. No wonder it may take up to two years for parties to complete the discovery process, especially in complex claims involving multiple parties.
Under the new proposed system, oral examinations for discovery will be eliminated, which will ensure that parties are in a position to set a trial date earlier in the process, eliminate time preparing for examinations, and eliminate the need for any discovery-related motions, which should have the effect of cost efficiency and reductions in delay.
Under the new proposed system, the parties will be required to disclose documents available to the parties at the time pleadings are served. This up-front evidence model includes the exchange of sworn or affirmed witness statements, affidavits of documents, and timetables for the exchange of expert reports, with an ongoing obligation to update the expert timetable as circumstances change.
After the initial disclosure, there will be a supplementary disclosure under the Redfern model, where parties can request “focused, narrow and specific” additional documents, and permit for “a limited number of written interrogatories”. With the up-front evidence model, the key objectives the current discovery process (i.e. information gathering, narrowing issues in dispute, avoiding trial by ambush, and facilitating settlement) will still be met, while balancing the need to reduce costs and delays.
Part of the new discovery process will deal with the exchange of expert evidence. Under the new proposed system, expert evidence will be restricted to that which is reasonably required to resolve the proceedings, and will be restricted to one expert per issue per party, unless leave of the Court is granted. Under the new proposed system, joint litigation experts are encouraged and will be presumptively required for a number of issues, for example economic loss calculations and standard of care.
Under the new proposed system, expert reports will be required at least 90 days prior to a court ordered mediation, responding reports at least 60 days before a court ordered mediation, and any supplementary reports at least 45 days in advance of trial. Trials will not be adjourned to accommodate late delivery of experts’ reports, and will result in their inadmissibility unless the defaulting party gets leave from the court.
The Civil Rules Review is critical of “motions culture”, which is fostered by the current Rules. Motions are costly and favour litigants with deep pockets to leverage their opponents. It can also lead to substantive delays, sometimes delaying an action by over a year, which again can be used to the strategic advantage of a defendant.
Under the new proposed system, request for relief that would otherwise be sought by way of motion will be subject to a Directions Conference. For relief that is procedural in nature, it will be presumptively decided at a Directions Conference. At the Directions Conference, the Directions Conference Justice will have the power to attempt to settle the interlocutory issue; decide the interlocutory issue, including costs; order the parties attend a further directions conference with the exchange of additional materials; or schedule a formal motion and impose a timetable for the same.
In addition to major reform to the current interlocutory process, the Civil Rules Review has suggested a number of other changes, including:
While the proposed changes should be welcomed, there may be some potential drawbacks to litigants with the elimination of examinations for discovery altogether. Without examinations for discovery, it may be difficult to obtain helpful (or harmful) admissions prior to a trial, which may otherwise inform important risk assessment resulting in a compromised settlement. Without being able to obtain oral evidence at an examination for discovery, it may also make it more difficult to find the appropriate experts to prosecute or defend a given case.
Perhaps some of the proposed changes, such as implementing the Directions Conferences, the use of effective Trial Management Conferences, and a Court-managed process to address delay, can be implemented in a way to address the delay caused by the current discovery process, while allowing for limited oral examinations for discovery with strict court-imposed deadlines in select cases. For example, requests for oral examinations for discovery could be made to the Directions Conference Justice and be implemented at their direction when the complexity of the case demands it. In doing so, the Directions Conference Justice could impose strict timelines, time limits on questions, and narrow the scope of questions in their direction, which would still be aimed at reducing the costs and delay associated with examinations for discovery.
The proposed changes to the Civil Justice System marks significant reform and addresses the Court’s main criticism of delay and cost associated with procedure over substance. It will be interesting to see what changes are ultimately made when the reform comes into effect, and how the new Rules will be used in practice in the years to come. Once implemented the new revisions will take some getting used to, but will hopefully have the intended effect of ensuring access to timely and cost-effective justice.
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