Written by David Sterns on April 21, 2025

LITIGATORS: The Civil Rules Reform Committee was given a broad and ambitious mandate:

“The objective is not just to tinker with the Rules—it is a wholesale reform. The group is tasked with conducting a comprehensive and complete review of the Rules to identify the necessary changes which would increase efficiency and access to justice for Ontarians, reduce complexity and costs, and maximize the effective use of court resources.”

Nothing was off-limits and there were supposed to be no sacred cows.

It’s difficult to engage with this important work without addressing one of the most well-known barriers to access to justice in Ontario: our adverse cost rule, or “loser pays” system.

As Justice Morgan noted in Kirsh v. Bristol-Myers Squibb, 2020 ONSC 1499: “Costs of litigation are often so steep that they threaten to impede access to justice.”

This is especially true for individuals and small businesses who cannot afford to retain large, institutional law firms. For many, the risk of a six-figure cost award is existential. A lost case can mean the loss of a home or a business. That is the reality of our current system.

Given the scope of the committee’s work, I had hoped this issue would be meaningfully addressed. In fact, I wrote about it last year in an article which I submitted to the committee during its consultation phase.

Unfortunately, that issue appears to have been left untouched in the final proposals. In some respects, the Report even amplifies the cost burden:
• Recommending full indemnity costs in some cases—an extraordinary measure under current law
• Proposing new penalties for missed deadlines, which could disproportionately impact under-resourced parties
• Not proposing any movement toward a tariff-based cost regime, as used in other jurisdictions

Let’s not forget: adverse costs are inherently asymmetrical. A $1 million adverse costs award may mean bankruptcy for an individual, but it is a rounding error for a multinational company.

So while the Report recommends a wide-ranging overhaul of civil procedure, it leaves one of the most regressive and access-limiting features of our system intact—if not reinforced.

That is disappointing. It prompts the question: Who benefits? More importantly: Who will be priced out of justice altogether?

#AccessToJustice #CivilReform #OntarioLaw #Litigation #FraudVictims #RulesOfCivilProcedure #JusticeForAll