At the beginning of April, a working group looking at the province’s Rules of Civil Procedure issued a wide-ranging consultation report that is recommending sweeping change in areas like oral and document discovery, how motions are handled and court scheduling as a means of increasing access to justice and reduce expense in the system.
But OTLA president-elect Mary-Anne Strong said the timing and pace of the consultation is a source of concern for her, saying there is a lot to review in a very short period. She noted responses to the report are due by mid-June.
Ontario Trial Lawyers Association president-elect Mary-Anne Strong
Strong said another big concern was the recommendations on discovery. The plan calls for the elimination of oral examinations for discovery in favour of the exchange of sworn witness statements, and Strong said lawyers learn important evidence by asking the right questions and some cases, such as in personal injury law, evolve over time.
“We have a broader picture in personal injury, and the discovery process helps us evaluate that in more detail. It gives us an opportunity to meet each other so we can test things like evaluating credibility, but we also ask the right questions to get the right answer,” said Strong, a senior partner with Beckett Personal Injury Lawyers. “And discoveries lead to settlement, which is one of the reasons why the majority of personal injury cases eventually resolves, because we’ve got a system that works well with respect to discovery.”
The proposed new model also suggests moving from a relevance-based standard of disclosure to a modified reliance-based standard, which would require parties to disclose the documents upon which they intend to rely to prove their case, as well as all known adverse documents in their possession, control or power.
Strong said there are some positives in the idea of reducing documentation but added that “one size does not fit all” — every type of case has a different need and there needs to be flexibility, she said.
“The idea of curbing documentation is something that can be looked at from both sides, and there may be some positives to that, but we want to make sure we’re not adding extra costs to litigants that aren’t necessary by front-loading certain obligations,” she said.
But not all is doom and gloom from the OTLA’s perspective — Strong said there is room for improvement in the system for dealing with motions, and the idea of simplifying motions that really don’t need the attention of a judge, as suggested by the working group, is one she can support.
“There is always room for improvement in our system, so there are some positives here,” she said. “But on the issue of oral discovery, it allows parties to evaluate risk and credibility. And if you take away that ability, we are going to have an unintended consequence of more trials in our system — and that means more delay and more backlog.”
Strong said it is important to get the process right, because the seismic changes being proposed will have a big impact on access to justice.
“And I’m sure the working group wants to get this right and wants to be able to consider all the feedback they get — but I would just question whether there’s enough time to do all that,” she said. “So, I hope that ultimately we are able to get his right.”
The civil rules review working group is accepting commentary on its recommendations until June 16, which can be sent via email to Jennifer.Smart@Ontario.ca. Responses provided may be disclosable under the Freedom of Information and Protection of Privacy Act.
Members of the working group will also hold a webinar May 12 to discuss the reforms. Details can be found here.
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