In April 2025, the Ontario Civil Rules Review Working Group (the “Working Group”) released its Phase 2 Consultation Paper in which it proposes broad reforms to the Rules of Civil Procedure (the “Rules”).[1] The proposals purport to reduce costs, encourage early resolution and accelerate access to trial, and would apply to all civil cases commenced in the Ontario Superior Court of Justice.
If implemented, changes would be made to the complete litigation process, including pre-litigation protocols, the commencement of claims, discovery, and the timing of trials. In addition to proposed changes related to appeals and class actions, the proposed changes that would affect all claims include:
- New Duties: Parties and lawyers would have a duty to cooperate, as well as a duty to certify that pleadings and motions are not frivolous and not intended to harass, cause unnecessary delay, or unnecessarily increase the cost of litigation. If a pleading or motion is found to be frivolous, vexatious, or an abuse of process, or if a party otherwise deceives the court or engages in egregious conduct, the court would order full indemnity costs.
- Pleadings: Proceedings would no longer be initiated as either actions or applications. Instead, all claims would commence via an online form, which would require a detailed appendix with information to be used for case management purposes. Other pleadings would similarly be form-based, and there would be no motions for particulars.
- Service: Personal service would now include service by email and service on any lawyer who communicates about the claim, regardless of whether the lawyer had been retained. Parties would be required to accept service brought to their attention “in any manner.”
- Documentary Discovery: Prior to the commencement of litigation, parties would be required to disclose all documents on which they intend to rely at trial. At the pleadings stage, additional documentation would be disclosed, including any documents referred to in the pleadings and any known “adverse” documents, and the parties would exchange written witness statements for every non-expert witness to be called at trial. Parties could then request additional documents, but the request would be narrow and specific.
- Written Interrogatories: There would be no oral discoveries. Instead, following documentary disclosure, parties would submit a limited number of written interrogatories. Each interrogatory would have to be answered unless it is “scandalous” (irrelevant, highly confidential, or disgraceful), disproportionate, or seeking privileged information. Disputes over refusals would be addressed via case conference and not by way of motion, unless the presiding judge determines a motion is required.
- Case Conferences: Mandatory case conferences would be used to shift away from the use of motions as the primary means of resolving procedural disputes. For example, Scheduling Conferences would be set for one year from the date the claim is commenced, at which time the court would set dates for mandatory mediation and trial, with trial to be scheduled within two years. Directions Conferences would be sought regarding interlocutory relief or resolution. At Trial Management Conferences, the parties would be required to agree on undisputed facts, a joint book of documents, an agreed glossary of definitions, and any anticipated motions at trial.
- Motions: In an effort to move away from motions, a judge presiding over a directions conference would make a determination without records or factums. Alternatively, the presiding judge could ask the parties for submissions on particular issues. Only if necessary would the judge schedule a formal motion. Formal motions would require a list of facts, a list of witnesses to support each fact, submissions of the witnesses’ affidavits, and submissions of factums limited to 20 pages.
- Experts: Parties would be permitted to rely on only one expert per issue. Opposing parties would be required to jointly retain an expert for certain issues, including property valuations, business valuations, economic loss, life expectancy, standard of care, engineering analysis, fire investigation, handwriting analysis, and capacity determinations.
- Consequences of Delay: If parties fail to comply with hearing dates, their pleadings would be struck. A missed deadline would be subject to a delay penalty fixed at $500 per day.
Reaction from the Bar
Since the release of the Working Group’s Phase 2 Consultation Paper, reactions have been pouring in from across the profession, with lawyers and legal associations staking their positions on the reforms through petitions, open letters, and LinkedIn posts. Perhaps unsurprisingly, while some have praised the reforms as a bold and creative solution to Ontario’s civil justice crisis, and while some marginal aspects of the proposals seem to have been universally welcomed (e.g., mandatory mediation across the province, and streamlined enforcement processes), the most vocal reactions have been from those that are opposed to the Working Group’s major reforms. For instance, the Federation of Ontario Law Associations (“FOLA”) – perhaps the most vociferous critic of the proposed reforms thus far – has described the proposals as “misguided”, “bad for the public” and potential “practice killers”.[2]
The criticisms from across the profession can be broadly grouped into three categories: (1) substantive criticisms; (2) methodological criticisms; and (3) ideological criticisms. We address these in turn.
1. Substantive Criticisms
Criticisms regarding the substance of the proposed new rules have mostly focused on the following major changes: (i) the elimination of oral discovery; (ii) the “front-loading” of the litigation; and (iii) the reduction of the scope of documentary discovery.
Many lawyers see oral examinations for discovery as a “critical information-gathering tool where parties can assess the credibility of their opponent and ask follow-up questions.”[3] By doing away with these in place of limited written interrogatories, parties may have a harder time assessing the strength of their respective cases, or indeed getting to the truth (as any written interrogatories will, naturally, be answered “in the comfort of [a party’s] lawyer’s office with limited opportunity for follow up.”)[4] Many see oral discoveries as playing a critical role in narrowing issues and promoting early resolution before the exponential ramp up in costs required to get to trial. In the words of the Middlesex Law Association: “In cases involving personal injury or employment issues or one or more self-represented litigants unfamiliar with legal procedures, removing oral discovery would undermine due process, impair case assessment, and increase the likelihood of unnecessary trials.”[5]
FOLA and others have argued that the proposed “up-front” evidence model – requiring parties to provide sworn witness statements and affidavits of documents within months of the claim being launched – “front-loads enormous costs that normally do not arise until much later”, creating a “massive access to justice obstacle” for all but the most well-resourced litigants. As one practitioner put it, “writing witness statements that will be in chief evidence” before the defence is even known “is going to cost a small fortune and will likely require me to build a far bigger team.”[6]
Finally, many have expressed concern that the shift from the current “complete discovery” model to a system where parties are obliged to produce only what they intend to rely on, as well as “known adverse documents”, will result in critical documents going undiscovered, usually to the disadvantage of plaintiffs. Of course, even the current model bears the risk that a party will improperly withhold critical documents, but critics have argued that the new rules “leave too much room for litigants to shield relevant information unhelpful to their case”,[7] while shifting the burden to the opposing party (again, usually the plaintiff) to “guess what they cannot see, with no reliable means to compel a fair response since a plaintiff can only guess what might be there.”[8]
2. Methodological Criticisms
The Working Group reached its proposed reforms on the basis of a qualitative assessment of the existing Rules and the current problems facing our system, rather than on a quantitative assessment of “hard data” (in part because very little hard data about our court system actually exists.)[9] This has attracted much criticism from the profession, with FOLA arguing that “[t]ransformative policy change needs to be rooted in evidence, not anecdotal hunches.”[10] Relatedly, many have expressed concern at relatively short consultation period for the profession to comment on the Working Group’s proposals (10 weeks), and the speed at which changes are expected to be implemented (sometime in 2026). Noel Semple, a law professor at the University of Windsor, has argued that these timelines should be extended to allow for a “methodologically rigorous empirical evaluation” of the proposals, and that to do otherwise would be “dangerously and unnecessarily premature.”[11]
3. Ideological Criticisms
Some of the most charged criticisms have focused not on the substance of the proposed reforms, but rather on the perspectives and experiences of the group that made them. Specifically, of the judges and lawyers that make up the 14-member Working Group, FOLA asserts that commercial litigators at prominent downtown Toronto (i.e., “Bay Street”) firms are drastically overrepresented, while “only one of the 14 Working Group members practice in these areas and actually serves the everyday litigant” in cases like personal injury, real estate and small business disputes.[12] Similarly, the Middlesex Law Association notes that “only one” Working Group member “regularly handles cases involving real people”.[13] These critics charge that, as a result of this lopsided composition, the proposed reforms are suited for “Bay Street clients with massive litigation budgets” (i.e., those that can afford the upfront costs required to carefully craft witness statements at the outset of their cases, and who are more likely to deal with matters involving sophisticated and well-resourced parties on all sides of a dispute) rather than “everyday litigants”.[14]
What is next?
The Working Group has given a deadline of June 16, 2025 for the profession and the public to comment on the proposed reforms. As mentioned above, many have argued that this is an insufficiently short consultation period, especially given the magnitude of the proposed changes to the profession. It remains to be seen what the Working Group will do with the feedback received, and to what extent the reaction of the profession and stakeholder organizations will affect the fate of the reforms.
[1] R.R.O. 1990, Reg. 194, under the Courts of Justice Act, R.S.O. 1990, c. C.43.
[2] Federation of Ontario Law Associations, Urgent Legal Community Concerns About Proposed Civil Rules Reform Process, April 28, 2025.
[3] Allan Rouben, A critique of Ontario’s Civil Rules Review, April 7, 2025, Law360 Canada.
[4] Allan Rouben, A critique of Ontario’s Civil Rules Review, April 7, 2025, Law360 Canada.
[5] Middlesex Law Association, Rushed Civil Rule Reforms Risk Shutting Ontarians Out of Justice, May 21, 2025.
[6] Erin Durant, LinkedIn Post.
[7] Allan Rouben, A critique of Ontario’s Civil Rules Review, April 7, 2025, Law360 Canada.
[8] Amani Oakley, Open Letter and Petition Regarding the Proposed New Rules for Civil Procedure in Ontario.
[9] Michael Lesage, Ontario Civil Rules Reform – the Good the Bad and the Ugly, April 29, 2025, Slaw.ca.
[10] Federation of Ontario Law Associations, Urgent Legal Community Concerns About Proposed Civil Rules Reform Process, April 28, 2025.
[11] Noel Semple, Look Before you Leap: Why Ontario’s Civil Rules Review Needs a Research Phase, 2025, SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5258842.
[12] Federation of Ontario Law Associations, Urgent Legal Community Concerns About Proposed Civil Rules Reform Process, April 28, 2025.
[13] Middlesex Law Association, Rushed Civil Rule Reforms Risk Shutting Ontarians Out of Justice, May 21, 2025.
[14] Federation of Ontario Law Associations, Urgent Legal Community Concerns About Proposed Civil Rules Reform Process, April 28, 2025.
