Ontario’s Rules of Civil Procedure need updating

As 2019 draws to a close, the Ontario court system finds itself in increasingly poor company. A technological backwater, it remains impossible to file most (or access any) court documents online. Paper documents may (or may not) be accepted if hand-delivered to the court, depending upon the vagaries of the court system and the mood of the particular clerk, while providing documents via mail remains a losing proposition.

Once filed, cases progress, but with the average civil claim taking seven years to reach trial, decisions are increasingly dependent upon natural mortality rather than the underlying facts or law. While these problems are largely due to the perennially ineffectual Ontario Ministry of the Attorney General, the Civil Rules Committee deserves a healthy share of the blame.

For those unaware, the Civil Rules Committee, subject to the approval of the Attorney General, is responsible for the procedures that govern the progression of civil actions in Ontario. These rules are intended to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” (Rule 1.04(1)). Measured against that metric, it is fair to say that the Committee is missing the mark.

The Committee’s failure is most pronounced in three respects: technology, discovery, and trial procedure.

Technology: The Committee (like our courts and regulator) appears to have missed the advent of the personal computer and its widespread adoption. Thus, no standards have been implemented governing the production, service or organization of electronic documents in litigation, leaving each lawyer (or party) to continuously reinvent the wheel.  

Further, when electronic documents must be put before a judge, each instance is essentially a matter of first impression. It is difficult to reconcile all of this with the court’s place in a developed country, or even with the stated goal of the Rules.

Discovery: Similar to the Ontario court system’s expensive reliance on expert witnesses, the Rules Committee also appears to maintain a peculiar interest in discovery, and through the Rules has attempted to maximize judicial involvement in such.

Rather than adopting the general American approach, which is that questions should be answered and documents produced if they could lead to admissible evidence (subject to final determination at trial), the Committee has instead adopted the legal fiction that judges are present at every discovery, and that only “proper” questions should be answered and “relevant” documents produced.

Of course, no judges are present at discovery, meaning that many questions are improperly refused and documents improperly withheld. The fiction then becomes reality when parties are forced to incur significant costs to bring undertakings and refusals motions, utilizing scarce judicial resources. It would seem the judges on the Committee prefer to spend their time ruling on innocuous procedural matters such as whether a particular document is relevant to a particular proceeding, rather than the merits of the proceeding itself.

Trial procedure: Given the experience and seniority of the members of the Civil Rules Committee, it might be expected that they would have significant experience with matters settling on the courthouse steps. Evidently, though, making it to the courthouse steps is discouraged, as the Committee has adopted (or failed to revoke) Rule 48.04(1), which effectively discourages and delays actions from reaching trial.

In practice, this Rule prohibits a party that has requested trial (a prerequisite to obtaining a pre-trial settlement conference) from continuing with any form of discovery, absent leave of court. As leave of court is discretionary and motions are time-consuming, cautious counsel will want to ensure all discovery is complete (including undertakings and refusals motions) before requesting trial and entering into the queue for a pre-trial conference and a trial date.

Of course, this delays the ultimate resolution of matters; but recall, our judges are preoccupied with procedural matters (such as relevancy of documents) and have little time left to adjudicate matters on the merits. By itself, this Rule helps to explain why civil claims in Ontario take, on average, seven years to reach trial, one of the longest periods in Canada or the U.S., and another dubious distinction for Ontario’s court system.

As civil justice moves increasingly out of reach, and the Supreme Court advocates for a “culture shift” in civil litigation, it remains to be seen whether the Rules Committee will have the courage to fix what clearly isn’t working, or whether it will keep trying more of the same, each time expecting different results. On that question, the jury is out.