A New Era for Civil Litigation in Ontario? What Litigants Need to Know About the Proposed Rules Overhaul

The Ontario Civil Rules Review Working Group^[1] has released its Phase Two Report, proposing a comprehensive overhaul to the existing Rules of Civil Procedure. The proposed changes aim to reduce delay and cost, and, in turn, increase access to justice. 

The report emphasizes the need for bold reforms to create a more streamlined and effective civil justice system. Key themes include the introduction of pre-litigation protocols, the implementation of an evidence-first model, and the elimination of oral discoveries. Critically, the report recommends that the basic limitation period for civil actions in Ontario be increased from two to three years, as is the case in other jurisdictions, like the United Kingdom.

Key Proposed Reforms

The following is a summary of some of the key reforms proposed in the report. It is not exhaustive. The full report is available.

Commencement

The proposed reforms seek to standardize and simplify the claim commencement process while requiring plaintiffs to produce certain information at the time of filing.

1. Pre-Litigation Protocols: The report proposes introducing pre-litigation protocols for specific types of cases, such as personal injury claims, debt collection actions, and will challenges. These protocols will require parties to take certain steps before a claim can be commenced, including an early exchange of specified information and common documents, and exploring early resolution with the other parties.
2. Form-Based Pleadings: Plaintiffs will use a new, universal online fillable form to commence all types of civil proceedings. This standard form will guide prospective claimants through a series of questions to gather necessary information, simplifying the process of initiating a proceeding. 
3. Expanded Methods of Service: It will become easier to serve originating documents. The Working Group proposes to add service by email as an alternative to personal service. Defendants will also be required to acknowledge service where it comes to their attention “in any manner.”

An Up-Front Evidence Model

The reforms contemplate an initial requirement on parties to disclose all non-publicly available documents that are referenced in their pleading and are within their possession, custody, or control. 

1. Up-Front Exchange (Yet Limited) Discovery: Parties will be required to begin producing their evidence as early as when they serve their pleadings, by attaching to their pleading the documents referred to. This is followed quickly by “Primary Disclosure,” which involves the exchange of sworn witness statements and documents the parties intend to rely upon to prove their case, along with so-called “known adverse” documents.^[3] These materials may be augmented through “Supplementary Disclosure” as the litigation progresses.
2. Elimination of Oral Examinations for Discovery: One of the most striking changes proposed is the elimination of oral examinations for discovery. Instead, parties will be required to deliver sworn witness statements from all anticipated trial witnesses, outlining their evidence in-chief shortly after the close of pleadings.
3. Limited Documentary Disclosure: The proposed reforms would limit the exchange of documents. Parties will only exchange documents they intend to rely on, rather than the current standard of producing all “relevant” documents. Nonetheless, there is also a positive obligation to disclose all “known adverse” documents in a party’s possession. 
4. Limitations on Expert Evidence: Parties will be required to exchange expert evidence timetables with their up-front evidence. Expert evidence will be restricted to one expert per issue per party unless leave is granted. The court will be given more discretion to appoint/seek expert evidence, as required. 
5. Evidence at Trial: Evidence at trial will be given in writing rather than through viva voce testimony—the sworn up-front witness statements and expert reports will form the party’s case-in-chief at dispositive hearings.

A Court-Driven Litigation Process

A key aspect of the new model is shifting to a court-driven process to minimize delays and procedural disputes. 

1. Fixed Timelines: The Report proposes to establish a standard timetable to govern the exchange of pleadings, witness statements, affidavits of documents, expert evidence, and case management/scheduling conferences. This is proposed with a view to seeing all cases set down for trial within two years of commencement.
2. Mandatory Case Conferences: All cases will be required to have at least one case conference after the exchange of evidence, typically within one year of the claim being issued. A case conference will either be a “Scheduling Conference” if there are no interlocutory issues or a “Directions Conference” if there are outstanding issues regarding the process. Proceedings otherwise authorized to proceed by way of application will proceed directly to a “Directions Conference” to set a schedule.
3. Streamlined Motions: Motions must be addressed at Directions Conferences, where they will be “case managed”—either by being determined at a Directions Conference or by being sent to a “formal” motion. This is designed to reduce the use of court time and the expense of motions practice for litigants. 
4. Penalizing Delay: The report proposes that hearing dates be fixed and adjournments be limited to exceptional circumstances. Where a party fails to appear at a hearing or misses an interim deadline, the presumption is that the defaulting party will pay a per-day delay penalty to the non-defaulting party.

Implications for Litigants

In their current form, these proposed changes will have some important implications for litigants: 

• Efficiency and Cost Reduction: The proposed changes are intended to reduce the time and cost associated with litigation by streamlining procedures and minimizing delays through a court-led litigation process. 
• Transition and Adjustment Period: Clients, legal practitioners, and the judiciary will need to adapt to the new procedures, which may initially cause confusion and require additional training. Some parties may also attempt to push new matters forward in advance of the transition to escape the changes, while others may wish to wait (if the limitation period permits) to commence litigation until the new rules are in force. This transition period may be challenging for those accustomed to the current system. Further, the ongoing applicability of jurisprudence interpreting the existing rules will only become known with the passage of time.
• Greater Transparency and Predictability: The proposed “evidence-first” approach and expert evidence restrictions are designed to enhance transparency and predictability in litigation. Early sworn witness statements will force litigants to put their best foot forward at the beginning of a case. Litigants will be forced to develop a better understanding of their own case and will have information with which to develop a better understanding of the other parties’ case at an early stage. This promises to make litigation more predictable and to reduce surprises.  
• Increased Front-Loading Costs: The up-front evidence model will lead to greater up-front costs for litigants as they will be required to marshal the bulk of their case within months of the commencement of a claim. Parties will need to invest significantly before serving a claim or defence, and in the weeks following to meet their obligations.
• Less Tolerance of Frivolous Claims: Since plaintiffs will need to expend substantial effort to provide their evidence-in-chief at the beginning of litigation, the up-front model is expected to be a deterrent to bringing undefined or poorly supported claims.
• Early Resolution: Pre-litigation protocols and early evidence exchange may encourage earlier settlements and reduce the need for lengthy trials. This could lead to more amicable resolutions and less adversarial proceedings.
• Accessibility: Simplified procedures and the use of technology promise to make the litigation process more accessible to all parties. The intention behind these proposals is to help litigants more easily navigate the legal system and understand their rights and obligations.
• Iterative Document Review: The proposed model necessitates an iterative document review process. Litigants (personally or through their counsel) will need to review records as the proceeding advances—providing documentation both up-front and in response to interrogatories, among other requests. Our experience with similar processes in the international arbitration context suggests this could be quite costly. 
• Court Resources: The success of these changes depends on how well existing and (hopefully) additional court resources are allocated to implement and manage them.

Preparing for the New Rule Changes

Given the transformative scope of the proposed changes to the Rules of Civil Procedure, which are set to be implemented in early 2026, it is crucial for litigants to start preparing now. Here are some practical steps to ensure readiness:

• Stay Informed: Keep abreast of updates and developments regarding the proposed rule changes. Regularly review publications and attend seminars or webinars on the topic.
• Early Engagement: If your business is frequently involved in the types of litigation that might be subject to pre-litigation protocols, begin engaging with these protocols before the changes are fully implemented. Familiarize yourself with the requirements for early communication, document exchange, and mediation.
• Document Management: Consider your document retention and document management systems. Make sure they are capable of handling the expedited documentary disclosure timelines. Ensure that potentially relevant documents are organized and easily accessible.
• Training and Adaptation: Invest in training for your legal team to understand and adapt to the new procedures. This includes understanding the evidence-first model and the shift to written witness statements and document requests.
• Consultation with Experts: Seek help from legal experts who are well-versed in the proposed changes, such as our team at Fasken. 

Conclusion - We Are Here to Help

Our team at Fasken is following the proposed rules changes closely and is ready and willing to provide strategic insights and practical advice to help you navigate your litigation disputes, whether under the existing rules or the new litigation landscape, while minimizing potential disruptions to your business. We are committed to staying ahead of the curve and ensuring that our clients are prepared when litigation arises.