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| Peter Kryworuk |
In its 2023 report entitled “Delay no longer. The time to act is now,” The Advocates’ Society observed that Canada’s civil justice system is in crisis and called for all stakeholders in the justice system to take immediate and concerted action to solve the endemic delays plaguing our civil justice system.
In Ontario, this call to action was met, in part, with the creation of the Civil Rules Review (CRR) by Attorney General Doug Downey and Chief Justice Geoffrey Morawetz in January 2024. In April of this year, the Working Group released its Phase 2 consultation report, which provided a comprehensive outline of proposed reforms that would significantly change how we litigate civil claims in Ontario.
As noted in the opening words of the consultation report, the importance of a robust civil justice system cannot be overstated. The CRR report quotes professor Dame Hazel Genn in her 2008 Hamlyn Lecture, “Judging Civil Justice”:
The machinery of civil justice sustains social stability and economic growth by providing public processes for peacefully resolving civil disputes, for enforcing legal rights and for protecting private and personal rights. The civil justice system provides the legal architecture for the economy to operate effectively, for agreements to be honoured, and for the power of government to be scrutinized and limited. The civil law maps out the boundaries of social and economic behaviour, while the civil courts resolve disputes when they arise. In this way, the civil courts publicly re-affirm norms and behavioural standards for private citizens, businesses, and public bodies.
The Working Group makes the compelling argument that civil justice is important to all of us and there is an urgent need for reform. The ability of individuals to have their civil rights upheld and to receive compensation for violation of those rights, through an impartial arbiter in a fair and public process, is a fundamental human right, as is the right to equal protection and benefit of the law. There is wide consensus that our current system is out of date, plagued by delay and unaffordable to most citizens. Many civil disputes are never addressed, as the courts are unable to do so in an affordable and efficient manner. The availability of private arbitrations being restricted to only those who can afford them has created a two-tier system of civil justice in Ontario.
All of this is about to change. The CRR Working Group has delivered its report outlining its recommendations, which are being considered by the attorney general and Chief Justice Morawetz. It is expected that at the Opening of Courts ceremony in Toronto on Sept. 25, 2025, Chief Justice Morawetz will provide some details of the planned changes to our civil justice system. Based on the Working Group’s earlier report and the consultations that followed, it is expected that bold changes will be made to redesign the process for litigating civil claims in Ontario.
In the consultation process, extensive submissions were delivered by a wide variety of stakeholders in the justice system. While there was considerable disagreement as to the “how,” there was substantial agreement on the need for urgent reform. The goal of the new system will be to create a system of civil justice that is “accessible, fair, efficient, and economically rational.”
For these changes to succeed, it is essential that all participants in the civil justice system embrace them. Historically there has been a natural reluctance on the part of both the courts and the bar to accept change, but change is absolutely necessary, no matter how difficult it may be.
Any significant reform will not be without controversy or without challenges. A new system will likely bring many benefits, but not all change is necessarily good. Will the new system work perfectly? Probably not — and further revisions will likely be required. Will there be challenges in the transition period? Very likely, however, the status quo is not acceptable, given that the public has lost confidence in our existing system.
While we have not yet seen the final details, it will be important for Attorney General Downey and the province to provide sufficient funding and the resources needed to implement and support this new system. The courts will require technological and other supports, and all participants will need training. It will be necessary for the litigation bar and the courts to embrace these changes and to make them work in a way that best serves the needs of the public we serve.
We will see profound changes in how civil cases are litigated with a greater emphasis on efficiency, proportionality and timely access to justice. The new system will be designed to provide for earlier exchange of information, production and limited discovery, eliminating procedural obstacles and delays with the goal of reaching a resolution and/or determination of a dispute at a much earlier date. Currently, many disputes are not even making their way into the courts, as civil justice in Ontario has become inaccessible to many. This must change.
It is expected that the new system should prove beneficial for the resolution of commercial disputes, allowing them to be fairly adjudicated and resolved in a cost-effective and timely manner. The road before us will not be without obstacles, but it is essential that we embrace the change ahead.
Peter Kryworuk, a partner at Lerners LLP in London, Ont., is a distinguished litigator with over four decades of experience, renowned for his leadership in health law and his expertise across medical liability, class actions, commercial disputes and appeals. Peter is driven by a deep commitment to integrity, client advocacy and community service.
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