Background
In the Fall of 2023, the Chief Justice of the Ontario Superior Court of Justice and Ontario’s Attorney General announced their support for a comprehensive review of the Rules of Civil Procedure.[1] The mandate of the Civil Rules Review (“CRR”) Working Group “is to conduct a comprehensive and complete review of the Rules and identify, through consultation, areas where targeted changes to the Rules would increase efficiency and access to justice for Ontarians, reduce complexity and costs, maximize the effective use of court resources, reduce delay, and leverage technical solutions.”[2] A detailed review of the proposed reforms is beyond the scope of this newsletter; instead, this newsletter will look at the proposed reforms at a high-level and discuss arbitration as an alternative.
Phase One of the CRR
The CRR issued a Phase One Report in May 2024, indicating that the CRR “was not asked with determining whether civil justice reform is warranted”; rather, it “is a manifestation of the obvious need for change”.[3] The existing Rules were introduced in 1985,[4] and much has changed since that time.
Phase Two of the CRR
The CRR published its Phase Two Consultation Paper on April 1, 2025, which outlines a new framework proposed for civil procedure in Ontario.[5]
At a very high level, the CRR’s proposal will apply to all civil cases commenced in the Ontario Superior Court of Justice (excluding Small Claims Court); parties will be required to follow a pre-litigation protocol, which includes document exchange and discussion of the advisability of early mediation; the single entry point to the justice system will be an online, fillable form suitable for all proceedings; parties will engage in an up-front exchange of evidence after pleadings are completed (oral examinations for discovery will be eliminated); and parties will attend a case conference after the exchange of evidence, at which time a trial date will be set. Following a transition period, the goal is to schedule trials for most claims commenced under the new system within two years of the claim’s commencement.
It should be noted that the core elements of the proposed reforms have been successfully implemented in other jurisdictions, including the UK, Australia, New Zealand, and Singapore, as well as in various national and international arbitration models.[6]
Phase Three
In Phase Three, the CRR’s proposed changes will be refined, drafted, and implemented following approval by the Attorney General and Chief Justice.[7] A final proposal is anticipated soon, with the proposed reforms to come into effect as early as 2026. Given the complexity of the task at hand, the CRR is understandably behind schedule.
Arbitration as an Alternative
Now more than ever, arbitration may be a more attractive option for parties to a dispute. In arbitration, parties are free to choose the decision-maker and the process to be followed. As discussed previously in this newsletter series, the courts in Ontario and indeed across Canada look favourably upon arbitration, and afford significant deference to arbitrators.
Whereas the proposed reforms anticipate a two-year timeframe for disputes from start to finish, many arbitrations are completed much more expeditiously.
Where disputes are acrimonious, the parties may not wish to abide by the new general duty to co-operate imposed by the proposed reforms. The parties may also wish to hold oral examinations for discovery as they have in the past, especially where credibility is in dispute or where expert evidence is anticipated or required.
While reforms to the Rules are undoubtedly needed and the goals of the CRR are laudable, arbitration tends to afford the parties more flexibility than the courts, and many arbitrators have availability now. Depending on the parties’ availability and keenness to proceed, a dispute may be arbitrated from start to finish using the process desired by the parties and their counsel, and finished before the proposed reforms take effect.
[1] For further details, see https://www.ontariocourts.ca/scj/areas-of-law/civil-court/civil-rules-review/.
[2] Ibid.
[3] Phase One Report available online at https://www.ontariocourts.ca/scj/files/rules/CRR-phase-one-report-may-2024-EN.pdf
[4] The Rules were enacted by O. Reg. 560/84 dated June 20, 1984, and came into force on January 1, 1985.
[5] Phase Two Consultation Paper available online at https://www.ontariocourts.ca/scj/files/pubs/Civil-Rules-Review-Phase-2-Consultation-Paper.pdf.
[6] Ibid.
[7] Ibid.