In early 2024, the Ontario government and the Superior Court of Justice set up a working group to look at the province’s Rules of Civil Procedure and make recommendations for change. That group issued a wide-ranging consultation report at the beginning of April that recommends sweeping reform 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 Ontario Trial Lawyers Association (OTLA) has now issued its response to the consultation paper, noting the issue that has received the most attention and comment from its members — and an issue that has been flagged by other organizations — is the proposal to eliminate oral discovery and move to an exclusively documents-based system. According to the OTLA, oral discovery is essential to its members’ cases for evaluating risk, gaining admissions and properly preparing a case. It said oral discovery helps get many cases settled, and its elimination will result in more trials.
Ontario Trial Lawyers Association vice-president Joanna Sweet
“A lot of times the evidence isn’t neatly laid out in documents — for example, in a contractual dispute a lot of the information is in the party’s mind, and in a medical negligence case you’re not going to be able to find a document that says that surgery was negligently performed,” she said. “And so, the ability to talk to people and ask questions before a trial is very important.”
Rather than eliminate oral discovery, the OTLA is suggesting it be limited to an examination of each party for no more than three hours, with the ability to consent to greater time, and that it takes place within 12 months of the delivery of the statement of defence.
Sweet said delay has been a problem throughout the legal system in Ontario, but that it isn’t related to oral discovery.
“In our members’ experience, delay has really been about getting a trial date and then being able to proceed to trial because there have been several instances of trials being cancelled because there’s insufficient judicial resources,” she said. “So, this proposal raises some concern, because it does place more burden on the courts in terms of the time it could take to hear things — so really what is needed are more judicial resources coming from the federal government.”
According to the OTLA, other significant issues include the proposal to produce documents in advance of litigation, which it said carries concerns over privacy breaches, harm to vulnerable plaintiffs and increased costs — all of which it said may create barriers to access to justice. It added the proposal for sworn and/or affirmed witness statements and affidavits within six months of commencement of an action would place undue financial and workload burdens on parties, particularly plaintiffs, when this work is unnecessary in most cases, because they settle.
The association also argued access to justice and a trauma-informed approach must be paramount considerations in any review of the rules. This includes understanding the risks inherent in any requirement for early disclosure of sensitive and private information, particularly to unrepresented defendants outside the litigation process.
Sweet said anyone who has been injured, whether it be a trip and fall or an automobile collision or a sexual assault, have all faced trauma — so the fear is always that the legal process could revictimize people.
“There have been a lot of strides in the legal arena to try to adopt approaches that are trauma-informed that minimize the impacts of the legal system on that trauma,” said Sweet, who is managing partner at Greg Monforton & Partners in Windsor, Ont. “We would like to see any rules changes to kind of adopt those principles as well.”
But the OTLA said it is not in total disagreement with the working group’s proposals, saying it agrees with the elimination of motions for particulars, consolidation of pleadings rules and the implementation of a “one document” approach in lieu of multiple affidavits.
As part of its submission, the association cites court data relating to motions and trials in Ontario between 2014 and 2023. The data shows that, in that 10-year period, the total motions heard in Ontario declined every year, except for 2020 during COVID-19. By 2023 the total motions heard in Ontario were down close to 50 per cent from 2014 levels — from 66,781 in 2014 to 35,923 in 2023.
This data caught the attention of lawyer Michael Lesage, who has been waging a long-running battle to publicly disclose court records revealing civil case delays. He said the picture the data paints is very clear — that performance in the courts has been “dropping like a stone,” at least since 2014.
“If this were a fast-food restaurant and your revenues and customer numbers had dropped by 50 per cent over a 10-year period, the owners would be asking what can be done for us to be more competitive and get things back on track,” he said. “And other than ritualistic hand-wringing a few times a year in terms of speeches and remarks, there simply hasn’t been public efforts to address this.”
But the OTLA noted it asked the civil rules review (CRR) working group to provide the data it relied on in identifying problems with the current system. According to the association, the working group would not release the information — leaving the impression that the process is not data-driven and reform is being undertaken based on “regional anecdotes and selected perspectives,” it said.
Sweet said the CRR hasn’t been a data-driven project because “good, complete data does not exist.”
“There is a minimal amount of data which we attach to our submissions that we were provided with,” she said. “The problem there is we’re all trying to come to solutions here, but without the appropriate data, we may unintentionally aggravate a problem, or we may be solving the wrong problem.”
The association would like to work collaboratively with the government and the court to find a good solution to delay in the justice system, said Sweet.
“We would welcome further consultation and input as the new rules are developed and get put into place,” she said. “We hope that the government maintains oral discoveries and maintains a flexible approach to best deliver civil justice to people this province.”
More information about the civil rules review working group can be found here.
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