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| Michael Lesage |
Put in context, the elimination of civil trials is not that much more radical than the elimination of discoveries. Of course, both represent a significant departure from the common law, in that they generally eliminate the ability of parties to test (or impeach) evidence, save for in that small percentage of cases that resolve at trial. For most litigants (whose cases must by design settle), justice would then be reduced to speaking with their lawyer, and perhaps a mediator, and being advised that either position (“the world is flat”) could ultimately be accepted, such that they should settle on the terms offered. This would perhaps offend Lord Hewart of “Justice must not only be done, but must also be seen to be done” fame, but with the system self-admitted to be in crisis, what better time to “break a few eggs”?
To properly evaluate the merits of eliminating civil trials (or discovery), and in the absence of a methodically rigorous empirical evaluation as some have suggested, it is worthwhile to scrutinize the working groups report. For instance, the words “reduce,” “cost” and “expense” (along with slight variations thereof) were mentioned several hundred times over the 133-page report, while “search for the truth” came up only once (and “statistics” went altogether unmentioned). Clearly, the working group found certain compromises necessary to make the Superior Court work faster and cheaper. This can best be visualized by reference to the “iron triangle” seen here.
Absent information or real insight into current problems, the working group was left to cobble together random facts and opinions in support of their proposals. These included that in 2024, per Statistia, 361 billion emails were exchanged worldwide. Additionally, the working group conjured and concluded that cases valued at less than half a million dollars are currently uneconomical to prosecute (i.e., the large majority of cases in the system currently). Further, fears of “trial by information landslide” from the 1995 Civil Justice Review were resurrected. Partly as a result, the working group’s proposals have been widely and perhaps unfairly panned as not “evidence-based,” “rapid and risky” and, per one law professor, resting on “opinions and speculation.”
Of course, skeptics may question whether discovery is truly the cause of cost and delay in Ontario. Though our courts have judicially decreed themselves immune from oversight and accountability (which has worked out “just great” for the Ontario Superior Court), the World Bank has compiled court data, at least as to enforcing contracts. Comparing legal system performance in Toronto and New York City, both of which currently have discoveries, the cost in Ontario is actually slightly lower. However, matters take nearly two and a half times as long to resolve, with the quality of existing judicial processes in Ontario noted to be significantly lower (11/18 vs. 15/18). New York, like most of the United States, does not generally permit parties to refuse to answer questions at discovery and does not artificially delay parties from reaching trial where discovery disputes do arise. Accordingly, it then follows that the working group proposed for Ontario to adopt a judicial model closer to Hong Kong, a known bastion of democracy.
Regular people may struggle at times to follow the counterintuitive nature of the working group’s logic. For instance, while acknowledging that most litigants would “consider their case to be just the type of case that needs oral discoveries,” the working group nonetheless proposed that such discoveries be eliminated, replaced by the upfront exchange of evidence and the reinforced commitment of parties to tell the truth. This will doubtless work swimmingly to resolve fact-based disputes such as “Was the traffic light red or green?” Apparently, the working group believes that lawyers (and judges) will be able to engage in the necessary risk analysis to resolve cases by reference to documents alone. I suppose this logic is no less supported than the working group’s conclusion that the preparation of witness statements is generally essential (rather than rare) work.
In considering the elimination of trials (or discoveries), it seems plausible that the working group failed to consider the impact of poor historians or, gulp, those who are outright dishonest (a topic the insurance bar has some knowledge of), whose claims are often successfully disposed of after discoveries. For instance, were a plaintiff to allege a battery that resulted in significant ($100,000) psychological impairment, albeit for which no treatment was received, would such defendant not feel compelled to settle rather than risk the expense and outcome of trial, and would such potential outcome not encourage rather than discourage meritless suits? Would the calculus change with five supportive, if “creatively written” witness statements, or perhaps 10, and should our civil justice system rest solely upon creative writing?
While work continues at a societal level to construct “new man” who is always truthful, the main work of our legal system will remain deciding matters of past fact and thereafter applying the law. While Ontario has developed somewhat cumbersome discovery procedures to accomplish this, as leading litigators have pointed out, this could be addressed in large part by requiring deponents to answer rather than refuse questions. Likewise, no evidence has been presented that the burden of producing relevant documents outweighs their probative value, such that it remains ill-advised to eliminate either civil trials or discoveries.
Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He is also a former bencher at the Law Society of Ontario. You can email him at michael@michaelsfirm.ca.
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