At the beginning of April, a working group looking at the province’s Rules of Civil Procedure issued a wide-ranging consultation report that is recommending sweeping change in areas like oral and document discovery, how motions are handled, and court scheduling as a means of increasing access to justice and reducing expense in the system.
The group called for the elimination of oral examinations for discovery in favour of sworn witness statements, cutting down on motions, and moving from a relevance-based standard of disclosure to a modified reliance-based standard where lawyers would be required to only disclose the documents upon which they intend to rely to prove their case, as well as all known adverse documents in their possession, control or power.
But the Federation of Ontario Law Associations (FOLA) says the recommendations would entrench barriers, increase costs for litigants, and devastate the viability of small and sole civil practices — the “Main Street” lawyers who form the backbone of legal service delivery across Ontario.
Federation of Ontario Law Associations (FOLA) chair Allen Wynperle
“I’ve talked to lawyers across the province, and there is deep concern about these issues, whether you are a plaintiff or defence lawyer, or doing more commercial litigation or personal injury,” he said.
Among its concerns, FOLA said the working group’s reforms are not based on reliable court data, and the group is heavily composed of commercial litigators with little representation from practice areas like personal injury, insurance defence and estate litigation. It also said the proposed front-loading of litigation costs will put the court system out of reach for many Ontarians of modest means and will disproportionately benefit large institutional defendants.
“These changes will mean that clients, in many cases, will have to pay a greater cost up front to initiate litigation because the way the proposals are structured, there will be requirements for early disclosure of documents, but also for affidavits of witnesses, including experts,” said Wynperle. “My practice is in the area of personal injury litigation, and doctors are sometimes reluctant to get involved in the litigation process. Now we will need affidavits from those doctors when we begin the originating process, and doctors might object to that — so that may lead to a struggle.”
The federation also said the reforms would require more judicial and court resources to be workable and does so while recommending the elimination of things like oral examination, which tend to lead to out-of-court resolutions and remove burdens from the court docket.
Wynperle said he was recently speaking to a lawyer who does construction lien work and was recently required to sue several parties, but during an examination for discovery it became clear there was only one defendant at fault.
“That saved a week or two of trial time, and if there was no discovery, he said, it would not be clear who, in fact, was liable. And so, a case like that ends up on a trial list, and we end up spending more time in trial,” he said. “And while there are significant resources needed for criminal and family matters, civil lists might not get the necessary resources. So, we’ll be creating a system that might end up with a greater number of trials.”
Given its concerns, FOLA is asking the government to intervene and halt the advancement of the working group’s proposals in their current form, reconstitute the working group to ensure fair representation from lawyers practising across diverse regions and practice areas, and provide an extension of time for stakeholders to provide feedback. The working group is accepting commentary on its recommendations until June 16.
Wynperle said consulting with FOLA’s 46 constituent associations takes time and is a challenging process.
“And we’re not saying what the working group is doing is easy, but there are major changes being proposed, and we don’t want to make the situation more difficult for people to access justice in the province of Ontario,” he said. “I think it is worth taking a little bit of time and hearing from all the various groups.”
Representatives from the Ministry of the Attorney General did not respond to a request for comment for this article.
If you have any information, story ideas or news tips for Law360 Canada, please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.