by Josiah MacQuarrie, Lawyer and Mediator
Originally published at https://www.linkedin.com/in/josiah-macquarrie-5242b8b8/, between April and June of 2025
I’ve been thinking a lot about the CRR Phase 2 proposals and I just can’t get on board with most of them.
I vividly remember a future Court of Appeal judge ranting during an Advocates Society fireside chat about the poor service we as users get from the courts in Ontario and how we shouldn’t accept it. As true today (or truer) as it was 12 years ago.
There are lots of places where we can make changes, but we need our courts to lean into this because the continued permissive culture allowing delay and inefficient use of court resources isn’t going to go away just because we eliminate examinations for discovery.
Here are some changes I think would go a long way to improving our courts. These are half thoughts at best and not really rule changes, but rather are some ideas that have come to me over the years:
1. Eliminate scheduling/assignment court. This is our court’s version of “this meeting could have been an email.”
2. All motions in writing. I repeat. ALL. MOTIONS. IN. WRITING. A judge can order oral submissions where desired.
3. Start enforcing Rules 24.01 and 48.14 and actually kick matters for delay. If delay is a fire, our jurisprudence on this is the gasoline.
4. Case manage simplified procedure
matters and enforce timelines. Turn it into a “rocket docket.” That’s what it’s meant to be.
5. Expand mandatory mediation province-wide.
6. Stop leaning away from summary judgement. It’s a great tool. Let’s use it.
On Joint Experts
One of the less discussed reforms proposed in the CRR Phase 2 Consultation Paper that will have far reaching implications is the presumptive joint retention of experts in a variety of cases including engineering analysis and fire investigation. The issue is to limit the use of “hired gun” experts.
This is not going to work.
Don’t get me wrong, I understand the concern about hired guns. But why is this burden being placed on the parties instead of on the courts, whose job it is review and consider this evidence, act as gatekeeper, and govern their own process?
Take the example of a fire loss investigation, where it will be presumed that the expert will be retained jointly. The reality is that the first fire investigator on site is usually the one retained by the insurer for the damaged property. That investigation is often complete before liable parties are identified. For example an electrical fire may end up being the result of work done by a contractor hired by a previous owner, who is only identified after a lengthy investigation. Does that mean that this contractor sued much later has to accept the evidence of the expert hired by the party suing them? Does the property insurer who was first on site lose their expert, whose evidence is critical to their case, so that a mutually agreeable “joint” expert can be found? How are the parties to know that a joint retainer is the best option without first hiring their own expert to review the evidence and provide an opinion? The above is not an uncommon scenario and I don’t understand how this is makes anything more efficient.
On the Commercial List
It’s funny, but I don’t see any discussion of the Commerical List in the CRR phase 2 consultation paper. With all this talk of an existential crisis and lack of judicial resources, certain areas of practice are going to get to keep their own private court? I guess there are sacred cows, and then there are sacred cows.
On the Small Claims Court
Just a reminder that we already have a court that is evidence up front, no discoveries, with limited motions – the Small Claims Court.
So why don’t we just remove the monetary cap on small claims, and leave the Superior Court available for those who need discovery to successfully litigate actions? It will drastically reduce the burden on the Superior Court. Resources could be redirected to hiring more deputy judges, clerks and administrators in small claims. Commercial litigators get the system they’re looking for. Everyone else gets to keep the system that serves them best. Everybody wins.
On the CRR’s Proposed Scheduling Conferences
There are over 80,000 new civil actions issued each year in Ontario. Many of these never take up a minute of judicial time.
Under the CRR Phase 2 proposal, ALL new cases will have a mandatory scheduling conference within one year.
Let’s assume the upfront evidence model prices some litigants out of the process entirely (that’s a whole other issue). Let’s also assume some case settle quickly. So maybe 60,000 mandatory scheduling conferences. Every. Single. Year.
How long are these expected to be? 1 hour on average? That’s 60,000 man hours a year that our system needs to find. We have about 300 superior court judges. That’s 200 hours a year per judge. That works out to every single judge in the province spending at least an hour of every single work day on top of their other duties dealing with scheduling conferences. It’s likely more when you consider supernumerary judges, judges on leave, judges sitting in trials and other hearings, etc. We wouldn’t be in this mess if these judicial resources were available.
Yet no one has done any analysis of whether or not this can be done. No feasibility studies. No test runs. Just gut feelings and wishful thinking. And no plan for the inevitable backlog that is coming.
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