Proposed changes to Ontario’s Rules of Civil Procedure offer promising strategies for cutting down drawn-out business dispute timelines, but the success of those changes hinges on a broader shift away from the justice system’s culture of “maximalism” and “complacency,” commercial litigators say.
That shift will require an investment by both the courts – largely in the form of judicial resources – and lawyers throughout the province.
“Those of us who’ve grown up litigating disputes have almost come to accept that bringing a business dispute in Ontario’s court system to trial is going to be a multi-year endeavour,” says Ian Matthews, a partner at Borden Ladner Gervais LLP whose expertise spans complex commercial litigation and appellate disputes.
“That expectation is one that in part stems from the fact that when you need to get in front of a court or other judicial officer, sometimes the next available date is six, eight, 10 months away.”
Matthews adds, “All participants in the system – from the courts and judges to counsel to the parties – [play] their part to achieve timely justice.”
Moya Graham, a partner at McCarthy Tétrault LLP whose practice includes corporate and commercial litigation, says, “The biggest risk of the current proposals is that cultural shift.
“If it doesn’t come and the old maximalist litigation ways of thinking about our cases and about litigation procedure are allowed to operate within the reformed system, I think that will have the biggest negative impact on the reform system’s ability to deliver on its goals of more streamlined litigation and less delay,” she adds.
The proposed reforms were unveiled in April in a 122-page report by the Civil Rules Review Working Group, a committee launched by Ontario Attorney General Doug Downey and Ontario Superior Court of Justice Chief Justice Geoffrey Morawetz in 2024 to improve the provincial justice system.
According to the CRR Working Group, which is distinct from the Civil Rules Committee historically tasked with reviewing adjustments to the Rules of Civil Procedure, the proposed changes aim to tackle a long-standing “culture of maximalism” that has reduced access to justice, raised dispute costs, and introduced “excessive delays” in the civil justice system. If implemented, the proposed changes would significantly overhaul the current civil justice system, with changes like the elimination of oral examinations, new pre-litigation protocols, and an obligation to resolve disputes within two years.
Graham says the changes have been a long time coming. She represented one of the parties in Hyrniak v. Mauldin, a landmark Supreme Court of Canada case in which the high court supported a broad interpretation of summary judgment rules. According to the high court, this could help simplify pre-trial procedures and ensure that claims are adjudicated and resolved promptly.
The high court referred to protracted trials, “unnecessary” expenses, and delays in the civil justice system requiring a “shift in culture.”
“The court was saying then – and this is over 10 years ago – access to justice is a problem and there needs to be a culture change in the way we think about delivery of justice in the province,” Graham says. The case had originated in Ontario.
The CRR Working Group referenced Hyrniak v. Mauldin in its April report, writing, “There is consensus that the problem of access to timely and affordable civil justice has only gotten worse” since the SCC’s 2014 decision. The group added that the issue was compounded by the high court’s landmark decision two years later in a criminal case called R. v. Jordan. That decision imposed 18- and 30-month ceilings on the length of criminal trials, depending on the type of case and venue.
The CRR Working Group noted that in the near decade since the R. v. Jordan decision, Ontario’s courts have had to redistribute resources to meet those criminal timelines. “The already strained resources available to hear and dispose of civil matters became even further taxed, resulting in considerable delays for many scheduled events in many centres across the province,” the group added.
Other factors have also contributed to the normalization of protracted litigation timelines. Graham points to the delays introduced by the COVID-19 pandemic and says technological changes in business or commercial disputes have also “meant that the number of documents that are getting created in a business context is increasing, increasing, increasing.”
While “our ability to marshal them and deal with them through the [electronic] discovery process has improved … the sheer volume of a commercial case now compared to 10 or 15 years ago is that much greater,” Graham says. “It creates more opportunities for more procedural issues. It takes longer to work your way through them.”
Matthews, meanwhile, points to a long-standing lack of sufficient judicial resources, like judges, court staff, and available courtrooms. Over the years, long wait times have fostered what he calls a “culture of complacency,” which refers to “habits that have been developed in commercial litigation over time … in part out of inadequate judicial resourcing that would allow you to move the case forward quickly when you need to.”
The lawyers say several proposed rules could help tackle systemic delays in commercial disputes. Matthews says one such proposal is to start resolving procedural issues through conferences rather than motions. The CRR Working Group framed this proposal as a solution to the “motions culture” fostered by Ontario’s current civil rules, which essentially involves litigants being “entangled in endless battles over the process that will govern how the dispute will be litigated.”
This type of scenario is particularly prevalent in commercial litigation, Matthews says, adding that “if that motions culture is abolished or scaled back, that would have a meaningful impact on how quickly cases can get to a determination on their merits.”
Another promising proposal is requiring parties to disclose only documents they intend to rely on and “known adverse documents” during discovery. In contrast, the current system requires parties to comprehensively identify and produce documents related to a case, which Graham says can be particularly burdensome in business or corporate disputes.
Graham says these types of disputes “tend to be document-heavy cases,” so the change holds a lot of potential for helping disputes move through the court system faster. She argues that while she is sympathetic to the concerns of some lawyers, who have opined that such proposals to “cut corners” can prevent certain types of disputes from being litigated meaningfully, “more procedure doesn’t necessarily mean more fairness.
“I think there will be instances where a more streamlined process has a negative impact on a particular case or a particular circumstance,” Graham says. “But overall, I think that streamlining the process will serve the imperative of improving access to justice.”
Graham and Matthews both identify the CRR Working Group’s proposal to restrict dispute timelines to two years, from start to finish, as one of the reforms most likely to have a major impact on commercial litigation delays.
However, both lawyers say they also see potential issues with ensuring the timeline is followed. Matthews notes that the current civil rules already impose certain litigation timelines that have been hard to enforce “in any meaningful way.”
For any reforms to function as intended, “they have to be sufficiently judicially resourced,” he says. “It’s fine to create a new regime that has strict timelines and a goal of having all proceedings brought to a final determination within two years.
“But if the court system is not equipped to facilitate that and there aren’t a sufficient number of judges or other court resources to enable the rules to function as they’re intended, then the goal is ultimately not going to be achieved of getting these cases determined within two years.”
For Graham, a key concern is ensuring the current “maximalist” ethos prevalent in litigation does not carry over into the new system. “One of the defining aspects of success of a reformed system will be how it copes with efforts to litigate in the old style within the reform system,” she says.
The proposal to cut down on document production obligations during discovery, for example, offers parties the option of requesting additional documents via a so-called Redfern schedule – a table that lists the sought-after documents and arguments for why they are relevant to the case. That option is intended to be “targeted and specific,” Graham says, but parties could potentially craft overly broad Redfern requests that “effectively return the parties to the relevance-based production model” in effect now.
But Graham remains hopeful the bar will manage any changes well.
“I think there are real legitimate concerns, and I don’t want to be taken to be cavalier about that,” Graham says. “But I really do believe that we are capable of more streamlined processes and that we’re capable of doing things better and faster if we embrace the kind of cultural shift that the Supreme Court … suggested was a requirement to improving access to justice.
“[It’s] something we should all care about and something that I think all of our commercial clients want to see,” she adds.