Gerard Kennedy, Ph.D
Assistant Professor, University of Alberta Faculty of Law
The proposed reforms to Ontario’s Rules of Civil Procedure, based on the work of the Ontario Civil Rules Review (“CRR”) Working Group have, to put it mildly, been controversial. Is this illustrative of a profession inherently resistant to change? Or are there real concerns? And where is the line between reasonable hypotheses and undeniable data on what works, and what does not, in our civil justice system? In the interests of full disclosure, I served on the appeals subgroup, and, as such, will not be commenting on those proposed amendments publicly. However, outside this context, there is much to be lauded in these potential changes. Opponents should query whether they are needlessly resistant to changing a familiar status quo. But not all concerns can be dismissed out of hand, especially in the absence of firm data regarding what does—and does not—work to achieve access to justice.
The Good
First and foremost, it should be obvious that bold reform to Ontario’s civil justice system is needed. Tinkering with procedural law to achieve access to justice has been repeatedly tried over the past forty years, and has had minimal benefits. Given the endemic delay in our civil courts, and their circumscribed but essential role in our constitutional order, we cannot fairly say that the system is working well, even if, on other metrics (judicial independence, for instance), our justice system is the envy of the world. Minor amendments around the margins will not fix the status quo.
Some of the reforms, particularly concerning expert witnesses and evidence-in-chief being given outside of court, are particularly promising. Having witnesses give their evidence-in-chief outside of court mitigates concerns about the lack of oral discovery (though definitely does not eliminate it given the inability to test for credibility). It is also a well-known practice in arbitration, and will certainly result in savings of time at trial—though the need to prepare will not necessarily result in reduction of cost. As Tom Tyler and others have observed, there is something essential about feeling heard through the litigation process. However, the ability to have each party have one witness testify in court achieves this to a significant extent. Moreover, the requirement for experts to confer and clarify their points of disagreement reminds us that the role of the expert is to assist the court and not play “jukebox testimony” (to paraphrase then-Professor Paciocco).
The insistence on setting firm deadlines in litigation—and then not departing from them—is also promising, and probably achievable. Ontario’s civil procedure rules have notoriously been “honoured in the breach” regarding deadlines. An emphasis on flexibility in procedural rules to achieve optimal procedure in each case, irrespective of the certainty in the law and the costs of determining what is fair, are in tension with civil procedure’s goals of predictability and efficiency. The Federal Court and Federal Court of Appeal are known to enforce their deadlines—and have significantly quicker litigation. No reasonable person thinks that there should not be flexibility for the exceptional case where enforcement of the deadline would work an injustice—but this must truly be exceptional, and not a matter of routine.
The Uncertain
Reliance on case management is intriguing. This has proven comparatively successful in Manitoba and the Federal Court. However, these jurisdictions, particularly the latter, have significant associate judges, and/or generally more judges per litigant. In the absence of sufficient resources, these amendments will not have their desired effects and will almost certainly prove counterproductive.
The requirement for certain steps to be taken before litigation can be commenced can be criticized for transferring upfront costs to plaintiffs. This has the clear advantage of the plaintiff ensuring that some basic merit is present in its case before issuance, and also allows the litigation to presumably be more streamlined. Having said that, there are downsides. First, there is a concern that plaintiffs will not have access to this information. Whether plaintiffs should be commencing litigation without basic knowledge/merit is a matter of debate, however. Second, and more importantly, there are a substantial number of civil claims that resolve within three months of being commenced. Presumably, these are instances where the seriousness of the lawsuit prompts parties to resolve matters. Increasing the costs to do is disadvantageous from an access to justice perspective. Moreover, much of the work in litigation would be borne by parties before the litigation commences—but still must be borne. Ultimately, while it seems quite likely that the reforms will result in quicker litigation once the litigation is commenced (which is a good in itself, especially from the view of the courts), the savings from a cost perspective are more uncertain.
Without any doubt, much of the criticism of the proposed reforms has concentrated on the elimination of oral discovery and the serious restrictions on documentary discovery. This is akin to practice in many arbitral contexts and the Small Claims Court. This should belie any argument that the current iteration of Ontario discovery is a necessary corollary of parties’ rights to procedural fairness. Justice Huscroft has recently underscored that discovery is not a constitutional requirement of the right to access s 96 courts.
Of course, there is a difference between minimal procedural fairness and optimal or even reasonable procedural fairness. And there has been significant criticism of the proposed reforms regarding discovery, especially in the personal injury bar, where there is concern about power and knowledge asymmetry between the parties. In the face of this, there are arguments that discovery facilitates informed settlement, and its reduction will result in uninformed settlement, unnecessary trials, and/or plaintiffs not even attempting to bring litigation.
These hypotheses are not new. Thomas Cromwell described the beginning of his career in the late 1970s/early 1980s as a young civil procedure scholar to the time after his leaving the Supreme Court:
Remember when, in the 1970s and early ’80s, broader rights of discovery were thought to be the cure-all for what ailed the civil justice system? Broader rights of discovery would make for fairer trials and encourage settlement. Fast forward 30 years, and what became enemy No. 1 in civil proceedings? Excessive discovery. The discovery saga is typical. Significant procedural reforms are introduced based on anecdotal evidence (sometimes called “anecdata”) and effects are “monitored” in the same way. We simply do not take account of foreseeable systemic effects of the changes or bother to measure these effects once the reforms are put in place.
There is accordingly reason to be skeptical of arguments that suggest that greater discovery will generally facilitate access to justice, at least not without significant (and disproportionate) cost. The fact that the access to justice crisis appears to have worsened over the past forty years—and is much less prevalent in arbitration and courts without discovery—means that it is reasonable to query whether discovery is, in the main, “worth the costs” in at least many cases, particularly in an era of prolific online documentation. But we simply do not have good data in this regard.
The amendments to the discovery rules are the most radical reform proposed by the CRR Working Group. They may be its best. They may be its worst. But there is certainly concern that we are relying on strongly held views and hypotheses rather than actual data. And we must beware of unintended consequences.
The Need for Data
The CRR Working Group should be commended for its willingness to think outside the box on civil procedure reform. It could usher in a new era of litigation that is certainly quicker and possibly less expensive. But there will be drawbacks. And concerns about substantive justice—and perhaps even more importantly, the perception of substantive justice—are not fanciful. Lack of comprehensive data is a problem and, irrespective of what is actually adopted in terms of reforms to the Rules of Civil Procedure, courts should be sure to collect such data into the future.
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