On November 22, 2007, the Ontario government released the preliminary report of the Civil Justice Reform Project (the Project). The Project — headed up by the Honourable Mr. Coulter Osborne, a former Associate Chief Justice of Ontario — was charged with delivering practical recommendations on how to make civil litigation more accessible and affordable to Ontarians. The Project consulted broadly with members of the judiciary and the bar.
The preliminary report, which was presented to Attorney General Chris Bentley, makes over 80 recommendations covering issues that range from access for unrepresented litigants to the use of technology in courtrooms. In making his recommendations, Osborne was guided by the overriding principle of proportionality, recognizing that the "time and expense of any proceeding should be proportionate to the amount in dispute and the importance of the issues at stake." We highlight some of the recommendations below.
Disposing of Matters Summarily
Civil actions do not always require a full trial; many can be dealt with in a more summary fashion. Under Rule 20 of the Rules of Civil Procedure, a court can grant summary judgment where there is "no genuine issue for trial." The report recognizes, however, that the current functioning of the summary judgment procedure is flawed. Osborne acknowledges that the Ontario Court of Appeal’s interpretation of the powers of a summary judgment motion judge or master "has limited the effectiveness of the rule."
The report recommends granting the court "the express authority to do what some decisions of the Court of Appeal have said a motion judge or master cannot do." Specifically, courts should be permitted on a summary judgment motion to weigh evidence, draw inferences and evaluate credibility in order to determine if no genuine issue for trial exists.
The report also recommends introducing new procedures to dispose of matters summarily. If, in the course of a summary judgment motion, the need arises for a brief trial on one or more issues, the motion judge or master should be permitted to conduct a "mini-trial."
Further, Osborne recommends the adoption of a new summary trial mechanism, similar to that used in British Columbia, where issues can be decided on written evidence alone. He notes that a summary trial procedure would allow for the early disposition of cases without the cost and delay associated with other pre-trial steps.
Reducing the Cost and Delay Associated with Discovery
Much work has been done in the area of document discovery, particularly regarding best practices for electronic discovery. The Ontario Discovery Task Force has developed a set of non-binding e-Discovery Guidelines, and a working group of the Sedona Conference has published a draft set of principles related to document discovery in Canada. Rather than introducing new rules, Osborne recommends encouraging greater compliance with the already established e-Discovery Guidelines and Sedona Canada Principles. A practice direction issued by the court could provide judges and masters with the authority to sanction parties when these guidelines are not followed.
In a further effort to reduce cost and delay, Osborne recommends narrowing the scope of discovery. The current state of the law requires that all documents be disclosed and all answers on discovery be answered if they bear a "semblance of relevance" to a matter in issue in the case. In his report, Osborne recommends moving to a stricter test of "relevance." This is needed, Osborne notes, "to provide a clear signal to the profession that restraint should be exercised in the discovery process."
Also of note, Osborne recommends:
- reducing the time and cost associated with motion and trial scheduling by eliminating trial assignment court and setting more specific times for motions;
- increasing the monetary jurisdiction of the Small Claims Court from $10,000 to $25,000 over a period of two years;
- increasing the monetary jurisdiction of the Simplified Procedure rules from $50,000 to $100,000 as soon as practicable;
- mandating the use of a litigation budget, whereby lawyers would set out the expected costs of a proceeding to their clients at the outset of any litigation;
- rethinking the current case management regime so that cases are only managed by the courts when necessary; and
- reforming the rules relating to the use of experts to reduce costs.
A final report is expected to be delivered shortly. It will then be up to the Attorney General to determine if and how these recommendations should be implemented.