That was the overarching message from a presentation on the province’s Rules of Civil Procedure review hosted by the Law Society of Ontario (LSO) May 12.
During the presentation, Ontario Superior Court Chief Justice Geoffrey Morawetz noted he has been “saying for a few years now” that the rules needed to be overhauled.
Ontario Superior Court Chief Justice Geoffrey Morawetz
That message was echoed by Ontario Attorney General Doug Downey, who said the justice system was built and designed by lawyers and judges, “but that’s not who we are serving.”
“We don’t want outcomes based on administrative procedure — we want outcomes to be fair and accessible and cost-effective, and so we have to do something different,” he said. “We’re all aligned to make sure that we’re building a better system for the future.”
Those concerns led Downey and Chief Justice Morawetz to strike a working group to look at the rules and make recommendations to change. That group issued a wide-ranging consultation report at the beginning of April that is recommending sweeping changes 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 working 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.
Allison Speigel of Speigel Nichols Fox LLP, who is co-lead of the review alongside Ontario Superior Court Justice Cary Boswell, agreed that many of the suggestions were controversial and getting rid of oral examinations for discovery particularly so.
“People are saying how could you propose to get rid of oral examinations? That’s how we’ve been doing litigation for as long as any of us have been practising,” she said. “But the upfront evidence model requires parties to disclose, shortly after pleadings, all of the evidence in chief that they intend to rely on at trial — and this is helpful because it means that each party has early and complete access to the evidence in chief of their opponents. It forces parties to immediately focus at the outset of the case on what the case is about, and importantly, on what evidence they have to support or undermine their position at trial.”
Justice Boswell emphasized the importance of the consultation phase in developing the review’s final recommendations.
“Some people have said it’s a fait accompli and this consultation period is just for show — but that’s patently incorrect,” he said. “The consultation paper was an immense project and took us an enormous amount of time to put together, and since it has been published, we have spent a huge amount of time in presentations, engaging with lawyers, engaging with judges, trying to get their feedback, listening to them, answering questions. The consultation phase is critical to the success of this project.”
But Downey confirmed — despite calls from several corners asking for it to be extended — that the current mid-June deadline for consultation would not change.
“Court delay got us here, but review delay cannot perpetuate it,” he said. “We’re going to work to the deadline, and we’re going to keep the good work going.”
Commentary on the working group’s review can be sent via email to Jennifer.Smart@Ontario.ca until June 16. Responses provided may be disclosable under the Freedom of Information and Protection of Privacy Act.
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.