Sweeping Changes to Ontario’s Civil Litigation Process

Purpose of the Reforms. 

The reforms proposed in the Paper are meant to address concerns about access to justice, the high costs of civil litigation, and excessive delays in the civil justice system. In an attempt to respond to these concerns, the Paper aims “… to strike a practical balance between ensuring litigation is fair, promoting early resolution of disputes, and providing all Ontarians with access to timely and cost-effective civil justice.”  Whether these aims can be achieved by the proposed reforms is highly controversial. 

Pre-Litigation Processes. 

Pre-Litigation Protocols (“PLPs”): These protocols mandate the early exchange of information and specific relevant documents before starting court proceedings. They aim to narrow the issues in dispute and streamline the court process. Initially, PLPs will be introduced for personal injury claims, liquidated debt claims, and disputes about the validity of a testamentary instrument. 

Commencing a Claim. 

A single point of entry into the civil justice system will be established through a standard claim form, replacing the current choices of either an action or an application. This form will guide prospective claimants through a series of questions to gather necessary information, ostensibly simplifying the process of initiating a claim.  

The standard claim form will consist of two parts. The body of the claim will include much of the same information currently included in pleadings, such as information about the parties, the relief sought, a statement of facts, information required to serve an out-of-province defendant, and the statues relied upon by the claimant. Unlike in the current system, the claim form will require the claimant to list the specific causes of action being pleaded and the facts supporting each element of the cause of action.  

The second part of the claim form, called “Appendix A”, will include information that will be used for case management purposes, including a brief overview of the claim, the legal nature of the claim (in check box format), information about adherence to applicable PLPs, etc. 

One Year Scheduling Conference. 

As soon as is practicable, a Scheduling Conference will be set for approximately one year after the claim is issued.  

The Scheduling Conference will be a brief Court hearing addressing scheduling issues. At a Scheduling Conference the Court may: 

1. place the case on the Inactive List for up to one year if 

a. all parties consent; 

b. damages have not yet crystalized;  

c. the injury is a personal injury which has not yet stabilized; or  

d. it is otherwise in the interests of justice. 

If this occurs, the Court will set the next Scheduling Conference for within one year; 

2. in a personal injury action where the injury has not yet crystalized, order the parties to exchange evidence relating to liability but delay the exchange of evidence relating to damages; or 

3. reschedule the Conference if the case involves additional parties who require additional time to complete discovery processes, or if rescheduling would otherwise be in the interests of justice.  

Service of Process. 

The reforms propose four changes to reduce the burden of serving an originating process: 

1. Defendants must confirm acceptance of service whenever a claim comes to their attention in any manner; 

2. Defendants who breach service-related duties will be liable to pay costs (the higher of the claimant’s costs of service or $2,500); 

3. Service by email will be allowed as an alternative to personal service; and 

4. Service on a lawyer who has been communicating with the claimant will be permitted, whether or not that lawyer is actually retained.  

Amending Pleadings. 

Amendments to pleadings will be allowed as of right until the date witness statements and documents are delivered. After that, amendments will be allowed on consent or with leave of the Court, provided they do not require an adjournment of the dispositive hearing date. 

Default Proceedings. 

The process for default proceedings will be modified to require the claimant to serve a Notice of Default on the defendant, who will have 14 days to request that the notice be set aside. The claimant will be presumptively entitled to full-indemnity costs and the Court will impose a peremptory deadline to defend. If the defendant does not respond, the claimant can seek default judgment without further notice. 

Discontinuing an Action. 

The Paper proposes that a claimant should have the right to discontinue all or part of an action at any time, subject to the defendant’s ability to seek costs. This would occur without leave of the Court by serving a Notice of Discontinuance.  

Discovery and the Up-Front Evidence Model. 

Perhaps the most controversial reforms relate to the discovery process.  The Paper proposes the elimination of oral discoveries entirely, a drastic and fraught recommendation. The intent is to address the costs, burdens, and backlogs associated with the current model.  In some cases, this will deprive litigants of adequate means to test credibility and to evaluate the risks of litigation.  That the reforms fail to allow some discretion where oral discovery would promote fairness is highly concerning. 

The proposed discovery process is as follows:  

1. Step One: Initial Disclosure 

When a party serves their pleadings, they will also be required to produce all non-publicly available documents referenced in their pleadings and within their possession, power, or control. 

2. Step Two: Primary Disclosure 

After the close of pleadings, the parties will be required to provide sworn or affirmed witness statements, affidavits of documents, and proposed timetables for the exchange of expert reports.  

Witness statements will be required for all witnesses whose evidence the party intends to rely upon to prove their case. These statements will form the party’s case in chief at trial.  

Documentary discovery will include all documents upon which a party intends to rely to prove their case, as well as all “known adverse documents”. 

3. Step Three: Supplementary Disclosure 

Where a party is dissatisfied with the extent of the disclosure made at Steps One and Two, there will be two procedures by which additional disclosure may be sought:  

First, a party can request additional disclosure through a “Redfern Schedule” (an orderly framework within which the production of documents takes place), provided the documents are a) relevant and material, b) not in that party’s possession, custody and control, c) in the opposing party’s possession, custody, or control, and d) the request is focused, narrow, and specific.  

Second, a party may submit limited written interrogatories. 

Parties will be required to present witness statements early in the proceeding.  These statements must be from all of the witnesses upon whom the parties intend to rely in order to prove their case.  This is expected to substantially increase the up-front cost of litigation and promises to be a requirement that will prove difficult to satisfy. 

Summary Hearings and the Paper Record+ Process. 

Certain matters will be considered Presumptive Summary Proceedings and heard by way of a Summary Hearing pursuant to a Paper Record+ Process. This process involves the exchange of affidavits, cross-examinations, and factums, with the judge retaining discretion to allow oral evidence. 

Reforming Motions Practice. 

The proposed new interlocutory motions process distinguishes between three different types of relief:  

1. Direction: this would be relief that is more procedural in nature, and would be presumptively decided at a Directions Conference.  

2. Motions Order: this would be relief that requires a more fulsome evidentiary record or legal submissions, and would be presumptively decided at a formal motion; and 

3. Relief: this would be a residual category for which no presumption would apply, and would be decided either at a Directions Conference or formal motion as required.  

With respect to materials, Directions Conferences will require the moving party to file a Notice of Relief (which replaces the current Notice of Motion). Ten days before the Conference, the moving party will be required to file their Directions Conference Submission (max. 5 pages) which sets out the evidence upon which they intend to rely, and their legal submissions. Supporting documents will be required as a scheduled attachment. Three days before the Conference, any opposing party will be required to file their responding Directions Conference Submission.