On April 1, 2025, a Phase 2 Consultation Paper was published by the Civil Rules Review Working Group (CRRWG), proposing considerable changes to Ontario’s Rules of Civil Procedure.
The proposals contained in the Phase 2 Paper form part of a 3-Phase project spanning over two years entitled “the Civil Rules Review” announced on September 23, 2024 by Attorney General Downey and Chief Justice Morawetz. The CRRWG was assembled in January 2024, and is made up of a selection of the judiciary, members of the Bar and academics, whose goal is to identify and develop proposals for reforming the Rules to make them more affordable and accessible. Phase 1, which is now complete, was used to scope out potential areas of reform. Phase 2 was a thorough evaluation and assessment of the reforms identified in the first phase, along with a proposal. Phase 3 will be the approval of the proposed reform.
The proposed changes contained in the Phase 2 Paper focus on resolving the high costs of litigation, horrific delays due to service and motions, and general access to justice. From the perspective of defence counsel and insurers, the most shocking of the proposed changes has to be the complete elimination of oral examinations for discovery. That said, we have highlighted below a list of some of the most significant proposed changes:
- Pre-Litigation Communication
Certain cases would require early exchange of documents and positions, and discussion of potential resolution prior to any claim being filed.
- Universal Pleadings
An implementation of online forms for commencing claims or applications.
- Service by E-mail
The acceptance of service by e-mail with a requirement for defendants to confirm acceptance of service when a claim comes to their attention, by any means. Defendants who do not do so would face costs consequences.
- Notice of Default Proceedings
A Plaintiff would be required to serve a Notice of Default before noting a Defendant in default. The Defendant would then have 14 days to have the default set aside. If set aside, there would be a presumptive entitled of full indemnity costs to the Plaintiff and a peremptory deadline for delivery of the defence set.
- Early Evidence Exchange
Parties would be required to begin producing evidence immediately upon serving pleadings.
- Reliant-Only Documentary Disclosure
Parties would exchange only documents they intend to rely on at trial rather than all relevant documents. In addition to that, parties would also be required to exchange any documents that are adverse, but also be able to request additional documents through an arbitration style “Redfern Request” procedure and written interrogatories.
- Elimination of Examinations for Discovery
Oral examinations for discovery would be replaced with an “up front” exchange of affidavits from all anticipated trial witnesses.
- Simpler and Faster Motions
Parties could bring a motion at a Directors Conference, where a judge would have the ability to decide the motion without evidence or order evidence or submissions, dependent on the type of motion.
- Mandatory Case Conferences and Mandatory Mediation
All cases would be assigned a scheduling conference approximately one year after claim issuance, aimed at decreasing the amount of motions, setting trial and mediation dates. Mandatory mediation would occur before trial in all cases.
- Fewer and Jointly Retained Experts
A maximum of one expert per party per issue would be allowed as well as increased use of joint experts for specific issues like business valuations and standard of care. Further, there would be pre-trial expert conferences to determine areas of agreement/disagreement between experts.
- Consequences to Delays
Significant consequences to delays would be introduced, such as striking a party’s pleadings. A Delay Penalty would follow a missed interim deadline.
- Trial Sooner and Simpler
Trials would be scheduled within two years of commencement of the claim. Joint chronologies would replace Agreed Statements of Facts and Requests to Admit and Mandatory Joint Books of Documents and Glossaries would be required for all trials.
- Clarity with Appeals
There would be clarity as to the definitions of a final and an interlocutory order so there would be fewer disputes over appellate jurisdiction and requirements for leave to appeal.
- More Costs
There would be a presumption of partial indemnity costs, and a lower threshold for full indemnity costs.
How do the Proposed Changes Affect Defendants?
The elimination of examinations for discovery is certainly the most startling proposal for Defendants in civil litigation actions. With only written statements, rather than oral, this limits a Defendant’s ability to assess credibility of Plaintiffs, as well as uncover inconsistencies. Further, despite having efficiency as the goal of this reform to the Rules, eliminating discoveries could actually slow down trials. The proposed changes could be the very first time some defence counsel will have to perform an examination, no longer getting that practice out of Court.
Further, with no oral examinations for discovery, parties will be unable to ask for an undertaking for certain documents. Given the newly proposed reliance-based documentary disclosure, there may be a number of documents that Plaintiffs are not sharing with Defendants that could help bolster the defence’s case. Without the ability to ask for undertakings, any document production request will be that much more difficult to make.
That said, the up-front evidence model should be helpful to insurers who are faced with claimants who are hoping to settle early for a large sum, but have put little effort into backing their vague or boiler plate claims. This will require claimants and their counsel to put in the work early, possibly even before litigation, if they wish to settle.
The mandatory conferences, whereby counsel can bring motions, sometimes without evidence, will be beneficial to all parties in moving cases forward at a quicker, less costly pace. There are a number of simple production motions that do not, and should not, require the amount of documentation that we currently compile into motion records. Further, eliminating the delay associated with booking motions many months out will speed up the movement of cases.
Finally, the theme of cooperation and working together that is resonant throughout the reform to the Rules is a welcome one. The requirement for parties to cooperate throughout the litigation process, such as engaging in pre-litigation discussions and jointly retaining experts, will not only bring costs down and speed up litigation, but will make for a more congenial Bar.
Still Time to Critique
The CRRWG will accept any feedback regarding their proposed changes to the Rules up until June 16, 2025. One can provide this feedback by sending an e-mail to Jennifer.smart@ontario.ca. The Final Proposal will be delivered by CRRWG in July 2025, with the new Rules coming into effect in 2026.
SBA Lawyers LLP is taking an active role in the consultation process, with Partner, Krista Groen, member of the CDL Civil Rules Recommendations Committee, working to prepare a response on behalf of the defence Bar.
If there is further interest in these changes and hearing from the CRRWG itself, they will present at a webinar on May 12, 2025 to discuss the proposed reforms. Please go to the Superior Court’s website for the details.
We are monitoring this very closely and will report further updates as they come along.
See Civil Rules Review: Phase 2 Consultation Paper <https://www.ontariocourts.ca/scj/files/pubs/Civil-Rules-Review-2025-phase-two-EN.pdf>
