This article was originally published in the Hamilton Spectator on May 27, 2025.
You’re lucky if you have never been involved in a lawsuit. You will want to keep that streak going more than ever after an unelected wrecking crew from Toronto gets through with its plan to blow up Ontario’s civil justice system.
Lawsuits aren’t fun, especially when they are the only recourse for innocent victims of abuse, malpractice, negligently caused injury, or other civil wrongdoing. Over 60,000 of them are launched in Ontario every year. That means a lot of people have serious disagreements that they haven’t been able to resolve. Under our superb civil justice system, in almost every one of those cases, people find a way to agree by using its rules to develop their own settlements with the help of capable lawyers. In most cases they will never need a judge, and, as we know from the world of sports, the game is usually better when the referees get out of the way.
A report released last month proposes to turn this system upside down. Under its proposed model, the referees will not only get in the way, they will be calling the plays. A bizarre pastiche of counter-productive micro-management and unwarranted interference will require judges to get involved in every case – whether they are needed or not. The talented men and women we pay to be available as decision-makers will be mostly deployed instead as baby-sitters.
At the same time, new barriers to efficiency will require litigants to shoehorn their cases into an inflexible regimen that will suppress effective advocacy, create new pre-lawsuit obstacles, add restrictive protocols, needless paperwork and unnecessary hearings and impose absurdly unrealistic deadlines. The critical dynamics that have reliably produced mutually agreed upon settlements without trial in 98% of all lawsuits will be fundamentally ruptured.
Even worse, the plan calls for the elimination of the linchpin of the system – the oral examination for discovery. For a litigator, that’s like telling a football team they have to play the game without using the forward pass. Any knowledgeable litigation lawyer will tell you that the process of questioning the opposing party under oath out of court is the single most important step in a lawsuit and a catalyst for settlement that makes a trial unnecessary in most cases. Doing away with it is an obvious recipe for more trials, fewer settlements, higher costs and more bottlenecks in the system.
The report is the braincramp of a working group of 14 individuals from the Greater Toronto Area who were handpicked by Ontario’s Attorney General and Chief Justice to “make civil court proceedings more efficient, affordable, and accessible.” Their plan will do precisely the opposite – and you should care.
The authors make no bones about their plan to hijack the system from the people who use it. They say the process should be “Court-driven”, not “party-driven”. In other words, under their rules, you and your opponent will be yanked out of the driver’s seat of your personal lawsuit and forced to hand over the wheel to the state.
It all begs the question of who owns a lawsuit, the people in it or the state? Whose lawsuit is it anyway?
Unlike in a criminal case, the parties to a civil dispute choose to be there; the case belongs to them, not the state. They are voluntary participants who can end the case any time they like by negotiating their own settlement. Toronto’s gang of 14 wants to upend that dynamic and have the state take over by turning judges into managers. It is an ill-considered and scattershot attempt to fix problems they perceive in Toronto’s courts with solutions that will make matters worse everywhere. Without any empirical data, they have designed a paper-driven, one-size-fits-all system that would put Ontario completely out of step with civil procedures everywhere else in Canada when Canadians are trying to reduce inter-provincial barriers to commerce and professional practice. Even the judge who co-chairs the working group admitted that “the data was not tracked very well” and that “we do not have the statistics and the amount of time needed to do studies.”
The working group has acknowledged that it does not have all the answers and considers feedback “invaluable”. They have invited comments and suggestions on the proposed changes by email to jennifer.smart@ontario.ca before June 16, 2025. At the very least they should forgo any radical overhaul of the existing Rules until a comprehensive study can be undertaken by a representative task force using reliable data after consultation with lawyers who practise civil litigation in all regions of the province and with their professional associations.
It is important to add your voice. Your luck may not last forever.
Dermot Nolan is a certified specialist in civil litigation who has practiced law in downtown Hamilton for over 50 years. He is a retired deputy judge and a former president of the Ontario Trial Lawyers’ Association.