Proposed reforms of civil procedure: Refreshing reboot or more of the same?

Law360 Canada (November 18, 2025, 11:28 AM EST) --

Jacob Murad

I was an articling student and had my work cut out for me. I worked on a client file to prove adverse possession for a right of way across a house that had existed since the 50s but was being enforced by a neighbour. I brought all the files I had researched myself — surveys of the land, blueprints rolled up, ancient texts, photos I took of the property, transcripts of examinations.

It was all ready to go and I was excited to hear my principal argue the application. The suspense increased when the remainder of the court’s dockets were done away with on consent or abandoned leaving us as the only matter left at around 11 a.m. His Honour looked at the notice of application, said a judge needed a full day rather than a half day to deal with this matter and adjourned it to the next available hearing date with the next available justice. My hopes were dashed. It was my first taste of the realities of the Ontario civil justice system.

It happened again when I was called to the bar. I had a simple small claims matter in Brockville, Ont., for a return of real estate deposit based on not waiving due diligence. It was an “open and shut” case; the defendants didn’t send any witnesses or evidence — they had none. Instead, with three days to go before trial, the defendants asked for an adjournment. When I refused and showed up at trial with my evidence and witnesses who’d travelled from Toronto, the defendants’ counsel sent an articling student to plead for an adjournment. His Honour decided to adjourn the matter. We settled that day to get 50 per cent of the deposit back.

This past April unrolled Phase 2 of Ontario’s consultation report to revamp the Rules of Civil Procedure, some of which can come into effect as early as January 2026. As with everything, there is quite a bit to like and a bit that leaves something to be desired, but the efforts to change are certainly there. Of the more than 100 pages, the introduction is certainly a well-written piece, noting a major theme I completely agree with: “[S]ignificant sums of money [are spent] fighting over the process, rather than the substantive dispute itself.” This leads to settlements instead of incurring more time and expense, which is “an implicit acknowledgement that our justice system is, in many ways, incapable of resolving substantive disputes in a fair and meaningful way.” With the increased costs, litigants and backlog, our courts do not have the resources to address disputes properly.

The new rules have many significant changes, mainly taking aim at reducing “motion culture,” which increases costs and time without meaningfully moving anything forward and reducing discovery steps with the goal of reducing the time for hearing a dispute. Some of the major substantive changes include:

• One entry point — no more applications and actions, just one entry into the system;
• Elimination of oral examinations for discovery and up-front evidence;
• Increasing the statute of limitations from two to three years;
• Using case conferences, including a one-year conference to try to schedule a trial by the end of the second year and dispose of motions; and
• Higher threshold and more penalty costs for not attending dates and setting aside default judgment.

These are just some of the many changes to expect. Some of them make lots of sense, like making email service acceptable and a higher threshold for setting aside default judgment. Others will lead to more confusion and litigation (i.e., lawyers will have a “duty to cooperate,” which will inevitably lead to lawyers accusing each other of breaching this duty; how does this new summary judgment process work, etc.). And still other proposals that are unclear as to what the effect will be (some plaintiff lawyers are lambasting the removal of examinations for discovery; others are happy to get to trial sooner). The goal is to have the process driven by the courts rather than private parties. Although, with the current lack of resources in the courts, I do not quite understand how that is possible.

My personal take is that while, overall, this reform was conducted with great care and analysis and the best intentions, it is unlikely to change the system in a meaningful way. The premise to fix the system is correct, but it is not the rules themselves that are the issue. It is those who enforce the rules.

I bring up the stories at the beginning of this article as an example of a lack of enforcement of rules. I am not alone in having these types of experiences. Judges have an extremely hard position, are overworked, and many times will be said to “punt” cases for a variety of reasons and not provide a judgment. Lawyers play into this by delaying further.

There are many bureaucratic systems in our province that service more people in a much more efficient manner. Driver’s licences, schools, grants. It isn’t perfect, but masses of people are getting “judgments” on their applications for items they need within a reasonable time. It is the best of these other systems that should be replicated in our legal system: how to process the judgment of a request fairly and quickly.

One way is to establish which matters judges (who are appointed from a very small pool of candidates at a time) are required to rule on and which can be delegated and processed in a more streamlined way by clerks or other officers appointed by the court. It should not take an appointed judge to rule on an adjournment or a scheduling matter — someone with a lower level of education and experience can certainly do so. The substantive hearing should only be heard by a judge, but other matters, such as default or dates or consent, can be completed by frankly less-educated people. And judges must be mandated to make a ruling one way or another at each sitting and held accountable in some way for making a ruling. This is the only way to “scale” our justice system to take in the sheer number of matters.

Our justice system is no different than any system, bureaucracy or private company. As it grows, it needs to scale. Leaders delegate, train, use technology. Judges need to do the same. In this way, the rules themselves will matter very little; they will be efficiently enforced to free up time and resources.

What can we expect from whatever rules are rolled out next year? Lots of confusion, industry criticism (myself included) and adjustment costs. This is no different than any policy rollout. But as things level to the status quo, only time will tell if our system becomes more efficient from this rule change. But if I were a betting man, I would go with the adage, “Good intentions, with a bad approach, often lead to a poor result.”

Jacob Murad is the managing partner and general counsel to Bluestar Equity, a private equity family office in Toronto, as well as president of KPA Lawyers Professional Corporation, a full-service law firm in Mississauga, Ont. He has served as general counsel and director for a large number of private companies throughout Canada and was responsible for the negotiation of complex mergers and acquisitions across a variety of industries. He is a member of the Law Society of Ontario’s Coach and Mentor Roster. He can be reached at jacob@kpalawyers.ca.

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