This article was produced in partnership with Pallett Valo LLP
Ontario’s civil justice system is in crisis and the profession is reckoning with a hard truth: the courts can’t fix it alone. With too few judges, ballooning delays, and no pending funding, the province is turning to alternative dispute resolution (ADR) not as an option, but as a lifeline.
For Anna Esposito, a mediator and senior construction litigator with Pallett Valo LLP, this shift is far from a concession — it’s long overdue.
“What I’m seeing is the trend I’ve advocated for throughout my career come to the forefront,” she says. “ADR is the only way we’re going to have meaningful, timely, and cost-effective resolution of disputes.”
The Rules overhaul: Expansion of mandatory mediation
In April, the Civil Rules Review Phase 2 Consultation Paper was released in line with the committee’s mandate to identity issues and propose changes to the Rules of Civil Procedure to ameliorate the situation. The report outlines a host of reforms, a consequential one for Esposito is the proposed expansion of mandatory mediation.
Currently, pre-trial conferences are a key moment for potential resolution. But they usually happen too late in the litigation process, and delays in securing one with stretched-thin judges are significant. To mitigate rampant delay and cost, the committee recommends outsourcing the settlement portion of pre-trial conferences. Parties would be required to attend a formal mediation earlier in the litigation lifecycle, conducted by a trained neutral.
For the first time, the Rules are being overhauled with the concept that judges and courts can’t manage the delay on their own, and therefore there’s a need to go outside the system for the resources to resolve disputes.
“These changes are a big shift in litigation; it’s a signal that ADR will have a much bigger role going forward,” Esposito says, adding that as a mediator, she is often shocked by how many lawyers cling to outdated, adversarial tactics that impede access to justice.
Too many still bring every possible motion and interlocutory proceeding, adding to delays and costs, and call it a good tactic. Litigants need to reorient their thinking to: How quickly can I get off the litigation treadmill?
“That old-school approach should have been gone a long time ago. We have robust production and discovery rules which means you’re supposed to put your cards on the table. If it’s a strong case, why wouldn’t you show it and resolve it early?”
Rise of ADR: An echo in the Construction Act
Esposito has long advocated for more ADR in her primary field of construction law, where the reasons for embracing it are amplified. She understood the need to add statutory interim adjudication process for construction disputes introduced in the 2018 radical overhaul of Ontario’s Construction Act. Then the first of its kind in Canada, the process allowed for expedient resolution of disputes that were binding for the life of the project and allowed the work to continue uninterrupted. However, interim adjudication did encounter growing pains.
Following a comprehensive review of how the changes to the Construction Act are working, recently several revisions have been approved — and once again, ADR features prominently in the recommendations.
“In my mind, this is more foreshadowing of where we’re headed going forward,” Esposito says. “They’re not retracting, narrowing, or fine-tuning the adjudication system under the act. They’re expanding it and making it broader.”
Previously, the interim adjudications were only available while a construction project was ongoing, but under the revisions, they’ll be able to be commenced for a period of 90 days following completion, termination, or abandonment of a contract. This would dramatically increase access to fast, decisions — even after the dust has settled on site, Esposito notes.
Even more transformative is the proposal to expand the pool of adjudicators. Currently, parties must rely on ODACC’s roster, but that narrow model is somewhat restrictive for participants.
“They’re saying: let's open it up. Parties may bring in someone of their own choosing — a retired construction judge, a construction lawyer, a mediator in the space — and not necessarily just the next person on the roster,” she says. Adding a category of private adjudicators, to the existing registry adjudicators, may encourage parties to choose interim adjudication more.
‘The sooner people jump on this wagon, the better’
Over the course of her 38-year career, Esposito has witnessed alternatives to litigation become increasingly attractive. This is particularly true in construction law, where disputes are often document-heavy, expert-driven, and filled with concurrent delays and technical subject matter.
While Toronto is fortunate to have a specialized construction lien court, it’s a rare resource and Esposito stands behind the move to expand access to specialized neutrals and streamlined dispute resolution processes. Her message to litigants — and especially infrastructure players — is clear: get ahead of the curve or continue to be stuck behind it.
“These changes to the Rules and the Construction Act mark a really significant step as to where we’re headed in Ontario,” Esposito says. “The sooner people jump on the ADR wagon and embrace it wholeheartedly — not because they have to, but because they recognize it’s a superior option — the better for everyone.”
After all, she notes, “with ADR the options are limitless.”
“The resolution you can fashion yourself today is always better than the alternative of going to court someday.”