The Ontario government is considering sweeping changes to its civil justice system, which could be implemented as early as next year. While framed as a way to improve efficiency and reduce backlogs, these reforms would fundamentally alter how lawsuits are handled in Ontario, stripping away essential protections for injured and vulnerable people.

The committee that came up with these changes was mostly made up of lawyers with experience in commercial litigation, class actions, and constitutional law, and their proposals have negative implications for personal injury cases. As a law firm dedicated to protecting our injured citizens' rights, we feel it is critical to explain how these proposed rules could affect you, your family, and access to justice for countless Ontarians.

What’s Changing?
One of the most significant changes would be the elimination of oral discoveries in most cases. Currently, both sides in a lawsuit can meet, question each other under oath, and test each other's evidence before trial. This is a critical step that often uncovers the truth, clarifies the issues, and leads to settlement without the need for a lengthy, expensive trial.

Under the proposed rules, these oral examinations would disappear. Neither side would have a chance to meet face-to-face before stepping into a courtroom.

Why Oral Discovery Matters
In personal injury, the mountain of medical documents rarely communicates the real effect of a person's injury on their life, much of which - like the effect on your relationships, the housework and support your family has had to take on, the emotional toll of your injuries - has no paper trail. Oral discovery allows the insurance company to meet you, the injured person, as a human being, and understand the effect of the accident on every facet of your life.

Under the new rules, each side will have to ask for the evidence they want from the other side. But, especially when an injury is caused by a fall, the injured person and their lawyer may not know what evidence may exist about the maintenance of the property, and without oral discovery, they will have no means to question and understand the particular nature of the care and maintenance of the property or the property owner's record keeping practices, and therefore may not know what to ask for. Without oral discoveries, people facing physical, emotional, and financial hardship would have to guess what evidence exists before making their case. This is like asking someone to fight blindfolded.

Other Detrimental Reforms to Plaintiffs’ Rights
• Up-front Evidence Model and Limited Disclosure: The reforms would require plaintiffs to lay out their full case, including all documents referenced in their pleadings and sworn witness statements, before seeing any of the defendant’s evidence. The course of recuperation after an injury is a long one; the full case takes time to know. Requiring the full case to be presented at the beginning will therefore require that beginning a lawsuit be delayed. It will be up to defendants to identify what documents to produce, making it a guessing game for plaintiffs to identify and obtain crucial evidence.
• Mandatory Pre-Litigation Protocols: Plaintiffs would face new hurdles before even filing a claim in personal injury cases. These protocols require early exchange of information and attempts at resolution even if they may be premature, adding procedural barriers and potential delays.
• Fixed Timelines and Severe Adjournment Penalties: New rules mandate that litigation reach a substantive hearing within two years of starting, with very limited adjournment allowed and stiff penalties (including throwing cases out of court) for missed deadlines, even if both parties agree.

An Unfair Burden on Plaintiffs
As mentioned, the proposed rules would require plaintiffs to prepare their entire case, including identifying witnesses and obtaining full trial-ready statements, before receiving any documents from the defendant. In some cases, particularly falls, this requires an enormous amount of work by injured people and their lawyers before even having enough information to know if the fall was due to carelessness, and therefore if there is even a viable case.

For most people, this is financially impossible. Lawyer who only get paid if the case is successful may find many potentially worthy cases too risky to take on - so many legitimate claims may never be pursued.

Fewer Settlements, More Trials, Higher Costs
Right now, about 98% of civil cases in Ontario settle before trial, in large part due to parties being able to assess each other’s credibility and evidence during oral discovery, which helps both sides judge their risk of winning or losing at trial. Take that away and settlement rates may drop sharply, because each side will know less about the other side's case, and so are more likely to have more widely divergent evaluations of their risks going to trial. Of course, insurance companies are always in a better position to take the risk of being wrong. That means lower settlements, more trials, more costs, and longer delays.

Out of Step with the Rest of Canada
If implemented, these changes would make Ontario an outlier in Canada’s justice system. Other provinces maintain robust discovery processes that ensure fairness. In the U.S., document disclosure is narrower, but parties can conduct extensive depositions not only of each other, but also witnesses. Ontario’s proposed system removes both safeguards.

Reckless Implementation
Usually when changes are proposed to the Rules of Civil Procedure, they are first implemented as pilot projects. For example, a pilot project in mandatory case management (to improve efficiency) was started in 1994, evaluated, and then rolled out in Ottawa, Toronto, and Windsor.  It was suspended in Toronto in 2004 because it was not serving its purpose in that busy jurisdiction. This kind of implementation allows the real-life effect of proposed changes to be learned, evaluated, tweaked, and implemented where they work. By contrast, the radical changes now being proposed are going to be imposed everywhere in Ontario, all at the same time. Lawyers and our staff across the province will have to forget much of what we know about procedure and develop new office procedures while still trying to shepherd our existing cases through the system.

The Bottom Line
Ontario’s civil justice system needs improvement, but it is not clear that the Rules are the cause of its problems. It is worth noting that a large part of the delays and inefficiencies the court has been experiencing over the last decade at least is in large part due to the fact that for years, the government did not fully staff the court with judges. By 2023 (the year this review of the Rules started), the number of unfilled judge positions on the Superior Court had grown to 92. The judge shortage is now down to 6, and the court is slowly clearing backlogs. Eliminating oral discoveries and forcing plaintiffs to prove their case without access to the other side’s evidence is a radical, unnecessary change that, at least in personal injury cases, won't speed the process up and will widen the gap between the powerful and the powerless.

Please ask the Attorney General, your MPP, and the Civil Rules Committee to:
• Conduct a full, data-driven study of the problems with the current system;
• Involve lawyers from all affected practice areas in meaningful consultations;
• Test any changes through a pilot project before rolling them out province-wide; and
• Ensure that reforms strengthen, rather than weaken, access to justice.

Because justice delayed is a problem, but justice denied is unacceptable. Please consider signing the Open Letter to the Attorney General of Ontario and the Civil Rules Review Committee here.