by Erin Durant
Origially posted on LinkedIn, May 8, 2025
My brain is exploding trying to figure out how to represent our less privileged clients through this new civil rules system.
I don’t think our individual and small business clients can afford the increased up front costs. I’m trying to estimate my fees through the Pre litigation process (higher fees than now), the pleadings (probably about the same cost) and drafting all of my witness statements (a very significant new cost). Writing witness statements that will be in chief evidence is going to cost a small fortune and will likely require me to build a far bigger team. Those statements do work very well in arbitrations that I have done when people had deep pockets to pay for it. I haven’t had those files since I left Big Law.
I have similar concerns about written discovery questions. I’m going to now spend far more time preparing for discovery and writing out each and every question than I currently do. In my cases discovery rarely lasts even a full day and we almost never have motions. Toronto has a huge motions problem. Much of the rest of the province does not. There were very few outside Toronto people in the consultation process and I think the committee had a very significant blind spot: who can afford this?!
How was the committee assembled and how were the various law associations caught by surprise by so many of these changes? The whole thing has me very concerned – not for my business as I think we will make more money. I’m concerned fewer people will be able to afford justice.
Overall it’s going to probably be very good for business as each new litigation file will bring in huge amounts of money up front – assuming clients can afford it. I’m working on a letter to Doug Downey to flush out my thoughts but this is going to make accessing justice and defending claims more expensive on average as big costs are nearly guaranteed.
The consultation needs to be expanded, the timeline for consultation extended and individuals added to the committee who act for clients who are not rich and are located in different regions. Toronto is not the centre of the universe.
You know who is really going to hate these changes? Treating physicians who treat personal injury victims. Imagine getting their in-chief evidence written out in advance? When/how will they even have the time?! My physician barely has time to fit me in to refill a subscription- let alone sit down with a lawyer to prepare a written witness statement. My mind is so boggled.
The “pricing Ontarians out of court” issue is my biggest issue with the proposals. We currently ask for $2,500-$5,000 as retainer funds to start a claim or file a defence for individuals and small businesses. In the new model I’m not sure how to get someone through the pleadings and witness statements without asking for $15-30,000 + (depending on number of witnesses it could be far more than that) – money that most people and small businesses simply do not have.
I’ve litigated using the evidence first model in arbitration. It works well for parties who can afford that level of up front work. But it can also be incredibly expensive and works best with clients with a lot of money and big cases. It is not an efficient or affordable way to deal with smaller disputes.
I really hope Canadian Chamber of Commerce, Canadian Federation of Independent Business, Ontario Small Urban Municipalities (OSUM), Pro Bono Ontario, National Self-Represented Litigants Project and others are paying attention to this. We are about to price so many people out of the civil justice system. Significant changes are needed to what has been proposed and a proper consultation period that includes lawyers who represent regular people need to be involved to make sure someone is thinking about affordability.
I’ve developed a lot of respect for Doug Downey and hope he understands the impact this is going to have. Each case is going to be significantly more expensive which will certainly allow lawyers to make more money on each case they bring in the door. But it’s going to break my heart turning so many people away because they can’t afford civil justice any longer.
I wish I had more energy to spare to properly organize to oppose this but I do not.
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