Rules of engagement: Ontario Civil Rules Review proposes overhaul of civil procedure

On April 1, 2025, the Ontario Civil Rules Review Working Group released its Consultation Paper recommending a reform of Ontario’s Rules of Civil Procedure, which govern civil proceedings. The Consultation Paper sets out a proposal for a new framework for civil justice processes that would, if adopted, transform the civil litigation landscape in Ontario. While many of the proposed changes are transformative for Ontario litigation, they also draw from other forms of dispute resolution (i.e., arbitrations) with which we have substantial experience (for more information on our experience in dispute resolution, please visit our Arbitration practice page).

What you need to know

• The proposed framework will apply to nearly all civil cases in Ontario.There are some exceptions to this general rule, notably small claims court and bankruptcy and insolvency proceedings. The framework would apply with some modifications to class actions (notably pre-certification proposed class actions).
• The proposal imports certain aspects of arbitration process. Certain of the proposed changes set out in the Consultation Paper draw heavily from common practices in domestic and international arbitration—for example, the substantial changes to the way in which discovery is conducted (including no oral discovery and the exchange of “Redfern Schedules”).
• The proposed changes are not final. The Consultation Paper expressly confirms that the proposed changes should “not be viewed as a fait accompli”. They are subject to a period of public consultation, following which they will be referred to the Attorney General and Chief Justice of Ontario for approval.
• Public consultation is now open. The Consultation Paper is open to consultation to all interested parties until June 16, 2025.

Background

The Civil Rules Review was launched on January 25, 2024 with a mandate of reforming the Rules of Civil Procedure to increase efficiency, affordability, and accessibility of court proceedings while reducing complexity, costs, and delay. The stated goal of the review is “wholesale reform”. The review is being carried out by a Working Group that is comprised of members of the judiciary, the bar, and academics.

The Working Group completed Phase 1 of its mandate—scoping—in May 2024, with the release of a report for potential areas of focus for reform. The Working Group’s release of the Consultation Paper is part of an ongoing Phase 2, which aims to carry out the development of detailed policy proposals for each area approved for study and development.

The Consultation Paper

The Consultation Paper’s opening stance is that the “current system is not working”, such that “bold reforms are required”. Below, we summarize some of the changes that have been put forth on the basis of this philosophy, focusing on those with the potential to have the highest impact on civil litigation in the province:

• Pre-litigation protocols to apply to some cases. For personal injury, debt collection, and disputes about wills, a pre-litigation protocol would require parties to engage in an early exchange of positions and documents, and to explore resolution or narrowing the issues before a claim is filed.
• Basic limitation period extension. The basic limitation period under Ontario’s Limitations Act, 2002 would be prolonged from two years to three years for all civil actions to account for pre-litigation protocols.
• No personal service. Defendants would be required to confirm acceptance of a claim when it comes to their attention in any manner, and service of a claim by email would be permitted.
• Up-front evidence exchange. Parties would be required to exchange sworn or affirmed witness statements from all witnesses the party intends to rely on at trial after the close of pleadings, along with all helpful and “known adverse” documents in their possession—although the question of what constitutes a “known adverse document” is the subject of ongoing debate within the Working Group.
• Supplementary disclosure available. Parties would be able to obtain further disclosure through “Redfern Schedule” requests (setting out specific requests for relevant and material documents) and/or a set number of written interrogatories (the number has not yet been determined).
• No oral discovery. Oral examinations for discovery (the Ontario equivalent of U.S. depositions) would be eliminated in their entirety and replaced by limited written interrogatories. The threshold for documentary production would be raised to require that documents be material (not just relevant), and for requests for documents to be narrow and specific.
• Curbing “motions culture”. Procedural relief would no longer be decided by motion by default but instead at “Directions Conferences”, with built-in judicial management of motions (including the possibility of prohibiting a party from making any motions absent leave). Substantive motion materials would not be supported by affidavits; evidence would instead be set out in a “Facts” section within a party’s factum, which witnesses would have to attest to as true.
• Streamlined expert evidence. There would be a heightened use of joint experts, and opposing experts would be required to confer before trial. At trial, expert evidence would only be introduced on an issue-by-issue basis after both parties’ fact witnesses have testified.
• Presumptive summary proceedings. The new system would require that certain proceedings¹ presumptively proceed to a summary hearing on a paper record (with the judge retaining the discretion to allow oral evidence). All remaining proceedings would presumptively proceed to a live evidence hearing, but parties would be able to request determination on a paper record under the summary hearing process.
• Trial within two years, only after mediation. The goal is to get a proceeding to trial within two years of commencement. Parties would be required to attend a case conference immediately after the issuance of a claim to set dates for a trial and mediation. Mandatory mediation would occur before trial in all cases (except those proceeding on a summary basis).
• Class actions exceptions. Pre-certification proposed class actions would not be subject to the early exchange of documentary evidence and witness statements; those requirements would kick in post-certification and any appeals regarding the same. Certified class proceedings would otherwise be subject to the same processes as other civil actions, with common issues trials proceeding presumptively by way of a live evidence hearing.
• Lower threshold for full indemnity costs. Full indemnity costs (which are currently the exception, not the rule) would be presumptively available in certain cases, including where a party fails to establish a serious issue to be tried, their pleading is struck, or the proceeding is found to be frivolous, vexatious, or an abuse of process.

Implications

If implemented, the changes set out in the Consultation Paper will re-imagine the way we litigate in Ontario—potentially sooner than we think. The goal of the Working Group is that, following the consultation period, their recommended changes would be developed into a policy proposal that would be approved and implemented by December 2025. Torys will continue to monitor and report on these developments.

In the meantime:

• The deadline to provide comments on the proposed framework is June 16, 2025, and the process is open to any member of the public. Note that responses provided may be disclosable under the Freedom of Information and Protection of Privacy Act.
• None of the proposed changes is final; each is subject to further changes as the Working Group considers submissions from the public. The Working Group, however, is starting from the premise that “the status quo is not an option”.
• Companies involved in frequent or high-stakes litigation in the Ontario courts should take the opportunity now to consider the impact of the proposed changes on their litigation strategy and on business considerations unique to their industry.
• Members of the Working Group will present at a webinar on May 12, 2025 to discuss the proposed reforms. Details for joining the webinar will be available on the Superior Court’s website.