Written By Richard Swan and Shaan Tolani

In September 2023, Chief Justice Morawetz of the Superior Court of Justice and Attorney General Doug Downey announced an initiative to undertake a comprehensive review of the Ontario Rules of Civil Procedure, with a view to reducing delay in the Ontario judicial system and fostering greater access to justice. The Terms of Reference for the Civil Rules Review (CRR), as this initiative came to be called, were laid out in January 2024, and the CRR working group released a Phase 1 Report in May 2024, identifying certain areas of potential reform for further study. 

The CRR working group has now released its much more detailed Phase 2 Consultation Paper. Drawing upon dispute resolution models in place in certain other jurisdictions, and used in some arbitration proceedings, the working group’s proposed changes, if implemented, would represent a dramatic overhaul of the procedural ground rules governing nearly all civil cases in Ontario.

The consultation paper, which among many other recommendations proposes to abolish oral discoveries in all civil cases—a central feature of Ontario’s civil litigation landscape for 170 years—has ignited an intense debate in the Ontario legal community. While virtually everyone connected with Ontario’s civil litigation system may agree that reform is necessary, there has been considerable concern expressed about the impact of some of the working group’s recommendations.

The Major Proposed Changes

Ontario’s civil litigation regime is described in the consultation paper (and by the Globe & Mail) as “arcane, expensive, and plagued by delay”. The working group explains that its proposed fundamental re-imaging of the Ontario civil litigation process is intended to promote efficiency, affordability and accessibility.

Below we summarize some of the most significant proposed changes outlined by the Working Group.

• Up-front evidence model: Coined the “up-front evidence model”, parties will need to produce all non-publicly available documents referenced in their pleadings at the time of service. They would also exchange sworn witness statements for all anticipated trial witnesses, productions, and expert evidence timetables shortly after the close of pleadings. In effect, parties would need to investigate and prepare their case in-chief very early on, and potentially at substantial expense.
• Modified-reliance standard for production: The standard for production of documents will shift from relevance-based disclosure to a modified reliance-based disclosure model. Under this model, the parties would produce any documents they intend to rely on, as well as “known adverse documents” (though the definition of “known adverse documents” is still being debated by the Working Group).
• Supplementary disclosure: Parties would obtain further evidence through targeted Redfern document requests (as is common in arbitration), setting out specific requests for relevant and material documents, as well as a small, fixed number of written interrogatories.
• Elimination of oral discovery: Oral examinations for discovery would be eliminated altogether, in all civil cases, no matter their nature, complexity or monetary size. The only replacement would be limited written interrogatories. This would represent an enormous change in the current model and has proven very controversial.
• Pre-litigation protocols: For some disputes (i.e., personal injury claims, debt collection claims, and disputes about the validity of testamentary instruments), there would be a pre-dispute protocol meant to encourage information exchange and early resolution.
• Extended limitation period: The basic limitation period for all civil actions would be extended from two years to three years.
• Easier service of claims: Defendants would need to accept service of a claim when it comes to their attention, including by email.
• Reforming motions practice: Judges would be empowered to determine more procedural issues at case conferences without a full motion record. Formal motions would be reserved for more significant issues.
• Expert evidence: There would be greater court oversight over expert evidence, with mandatory joint experts for certain issues, and expert “hot-tubbing”.
• Limited adjournments: Adjournments would be granted in only rare circumstances (even on consent), with potentially severe penalties in place for missed hearings.
• Some exceptions: There would be little to no change in the class actions regime up to the point of certification. After certification, steps under the new proposed model would kick in. There would also be little change for bankruptcies and receiverships. These proceedings are excluded from the proposed reforms to the extent the reforms conflict with governing legislation.

There was no proposal for a limited pilot program in connection with the changes, nor any material commentary on what a transition period would look like.

What Happens Next?

The reforms are proposals only at this stage and have stimulated vigorous debate and discussion across the legal and business communities in the province. It appears likely that the Rules will undergo some major reform (and soon), but the specific changes that make up that major reform are not yet etched in stone.

There is a formal consulting phase in place, where any member of the public can provide comments on the proposed framework to the working group. As expected, based on public commentary, members of the legal and business communities have expressed significant interest in (and at times, concern about) some of the changes. The deadline for comments is June 16, 2025.

With significant reform on the horizon, it is important that businesses take stock of these proposed potential changes and impacts on their current (and potential) litigation strategies.

If you have questions about the proposed changes, please contact the authors.