Background
The Attorney General and the Chief Justices of the Court of Appeal and the Superior Court of Justice share a vision for a civil justice system that is effective, relevant, responsive, and timely.
On September 28, 2023, Attorney General Downey and Chief Justice Morawetz announced the launch of a Civil Rules Review (“CRR”) to identify issues and develop proposals for reforming the Rules of Civil Procedure to make civil court processes more efficient, affordable and accessible for Ontarians.
On November 9, 2023, Attorney General Downey announced that Justice Cary Boswell of the Superior Court of Justice and Allison Speigel, a practising lawyer, would lead a Working Group for the CRR to identify issues in the civil justice system that could be addressed through changes to the civil court rules.
The CRR will be overseen by the Attorney General (“AG”) and the Chief Justice of the Superior Court (“Chief Justice of the SCJ”).
CRR Mandate
The CRR’s mandate is to identify, through consultation, areas where targeted changes to the Rules of Civil Procedure would,
- increase efficiency and access to justice for Ontarians;
- reduce the complexity of the civil justice system;
- reduce costs for litigants;
- maximize the effective use of court resources;
- reduce delay; and/or
- leverage technical solutions.
The CRR will be guided by the principles set out in these Terms of Reference and will have three phases: 1. Scoping; 2. Study and Policy Proposal Development; and 3. Approval and Implementation.
For clarity, the mandate of the CRR does not include recommending potential reform areas governed by legislation or by regulations other than the Rules of Civil Procedure (for example, the mandate does not include recommending reforms to the Rules of the Small Claims Court, Courts of Justice Act etc.).
CRR Composition and Duties
The CRR will be carried out by a Working Group representing the judiciary, the private and public bar, and academia. The Members of the Working Group are the individuals identified in Appendix A to these Terms of Reference. Appendix A may be modified and replaced, from time to time as needed, with the approval of the AG and Chief Justice of the SCJ.
The Co-Chairs will schedule Working Group meetings and set agendas. Members will meet as necessary to fulfill the CRR mandate. They will provide their input, expertise, and perspectives in accordance with the mandate and their duties. Members may undertake such tasks as they are asked by the Co-Chairs to carry out or that they offer to carry out, including research.
The SCJ Member(s) of the Working Group will facilitate requests for SCJ court data. The CRR will be supported by a Project Coordinator who is Senior Counsel with the Ministry of the Attorney General. The Project Coordinator will facilitate requests for information from the Ministry.
The Co-Chairs will provide periodic status updates to the AG and Chief Justice of the SCJ via the Project Coordinator, and throughout the CRR, will liaise with the Chair of the Civil Rules Committee established under the Courts of Justice Act.
Members may be invited to lead Teams in Phase 2 of the CRR (“Study and Policy Proposal Development”). Members may disengage from the project at any time by providing notice in writing to the Co-Chairs.
Phase 1: Scoping (January 2024 – May 2024)
The Working Group will conduct targeted consultations with civil justice system participants commencing in early 2024. Based on the results of its consultations, and such other research as the Co-Chairs may direct, the Working Group will identify potential areas of focus for Phase 2 of the CRR.
It is anticipated that in May 2024, the Working Group will deliver a report to the AG and Chief Justice of the SCJ for their consideration of whether each potential area of focus identified by the Working Group in Phase 1 should be referred for study and development of a detailed policy proposal in Phase 2.
The AG and Chief Justice of SCJ will consider the report and may accept it, or may request modifications and/or additional information. The AG and Chief Justice of SCJ will be informed by the recommendations of the Working Group, but are not bound by them, in regard to the work to be carried out in Phase 2. It is anticipated that AG and Chief Justice of the SCJ will confirm directions for Phase 2, based on the Phase 1 report, by end of June 2024.
In Phase 1, the Working Group, led by the Co-Chairs, will:
- Develop a consultation plan that,
- identifies consultees and timelines; and
- proposes a methodology for consultation that will be submitted to the Project Coordinator to seek approval of the AG and Chief Justice of the SCJ.
- Prepare materials for consultation and carry out consultations in accordance with the consultation plan.
- Evaluate the feedback and prepare a detailed summary of the feedback (in chart format).
- Obtain and analyze data as needed to identify and examine issues identified in the consultation. When necessary, the Co-Chairs may request access to SCJ court data through the Member of the Working Group employed in the Office of the Chief Justice of the SCJ. Such request(s) will be considered expeditiously and data provided where feasible and appropriate, in the SCJ’s discretion.
- Prepare a Phase 1 report setting out recommended areas of focus for Phase 2 of the CRR for consideration by the AG and the Chief Justice of the SCJ.
Phase 2: Study and Policy Proposal Development (June 2024 – June 2025)
Based on directions from the AG and Chief Justice of the SCJ, the Co-Chairs and Project Coordinator will develop a Phase 2 workplan for Members of the Working Group.
Teams for each targeted area of focus will be established by the Co-Chairs of the Working Group, in consultation with the Attorney General, the Chief Justice of the SCJ and the Project Coordinator, to carry out the development of detailed policy proposals for each area approved for study and development.
The Teams will,
- carry out responsibilities in accordance with Terms of Reference developed by the Co-Chairs and Project Coordinator, and approved by the AG and Chief Justice of the SCJ;
- report to the Co-Chairs;
- conduct jurisdictional research for each area of focus and develop detailed options for reform;
- develop consultation material and consult on options for reform with relevant civil justice system participants;
- prepare detailed policy proposals on rule reform and related draft regulations that best meet the objectives, to be delivered to the AG and Chief Justice of the SCJ in June 2025; and
- through the Co-Chairs, seek approval of policy proposals from the Attorney General and Chief Justice of the SCJ
Policy proposals should be referred to the AG and Chief Justice of the SCJ for review as soon as they are complete, to promote early and progressive implementation of reforms where possible.
Policy proposals, where approved, will be followed by the development of draft amendments to Regulation 194 under the Courts of Justice Act and related implementation plans.
Phase 3: Approval and Implementation (July 2025 – December 2025)
The detailed policy proposals and draft regulations will be processed in accordance with the provisions of the Courts of Justice Act. It is anticipated that this will include:
- Approved regulations being filed with a target date of December 2025 or earlier if feasible
- Public notification of rule and form changes
- Rule reforms to come into force on dates set out in the regulations – likely 3-12 months after filing, to be determined according to extent of reforms and consequent need for:
- advance notice to the legal community and justice system participants,
- public-facing communications and guidance,
- system programming and updates, and
- court staff training.
Note: Phase 3 may begin earlier for some proposals than for others if the study and policy proposal development for that item (or items) is complete, and provided that early approval and implementation will not create conflicts or inconsistencies with other Phase 2 work in progress.
CRR Guiding Principles
The general guiding principles of the CRR are,
- Access: Proposed changes should promote efficiency and access to justice for represented and unrepresented litigants and should be clear and comprehensible.
- Diversity and Inclusion: Proposed reforms should consider that different issues may be experienced by different regions, populations, and categories of justice system participants.
- Modernization: Proposed changes should be coordinated with the Courts Digital Transformation initiative and be informed by best practices in other relevant jurisdictions
- Proportionality: Proposed changes should reflect the principle that the time and expense devoted to civil proceedings should be proportionate to the amount in dispute and the importance of the issues at stake.
- Timeliness: Proposed changes should be implemented efficiently and progressively/iteratively where possible.
- Transparency: Recognizing that progressive changes can be challenging for justice system participants, the Civil Rules Review workplan should be published and kept up-to-date, in a way that promotes meaningful, efficient input throughout the process and supports preparedness for change
APPENDIX A – Phase 1 WORKING GROUP
Co-Chairs:
Justice Cary Boswell, Superior Court of Justice
Allison Speigel, Speigel Nichols Fox LLP
Project Coordinator:
Jennifer Hall, Ministry of the Attorney General
Members:
John Adair, Adair Goldblatt Bieber LLP
Tamara Barclay, Ministry of the Attorney General
Justice Jennifer Bezaire, Superior Court of Justice
Professor Suzanne Chiodo, Osgoode Hall Law School
Chantelle Cseh, Davies Ward Phillips & Vineberg LLP
Jacob Damstra, Lerners LLP
Trevor Guy, Office of the Chief Justice, Superior Court of Justice
Rebecca Jones, Lenczner Slaght LLP
Sunil Mathai, Ministry of the Attorney General
Zain Naqi, Lax O’Sullivan Lisus Gottlieb LLP
Jeremy Opolsky, Torys LLP
Darcy Romaine, Boland Romaine LLP