May 15, 2017
BY EMAIL - Original to follow by mail
Ministry of the Attorney General
The Honourable Yasir Naqvi
Attorney General of Ontario
McMurtry-Scott Building
720 Bay Street, 11th Floor
Toronto, ON M7A 2S9
Dear Minister Naqvi:
Re: Civil Justice Reform in Ontario
For several years, the Ontario Bar Association ("OBA") has advocated for modernization of our civil justice system. As I have discussed with you in our earlier meetings, this is a critical priority for our members and for me personally as the OBA President.
Modernization of our system involves court-related technology updates that are long overdue. I am pleased to recognize your willingness to lead in that regard, and appreciate your ministry's ongoing efforts to engage the OBA and its members in helping to shape such changes. There is much to be done, but the initiatives you have begun to implement will greatly help Ontarians and the lawyers who serve them.
From discussions with lawyers and judges across the province, it is also clear that bringing bold changes to our existing civil justice procedures is a critical element of modernizing our system. This is separate from the technological modernization, and is indeed necessary to reap the full rewards of those precious investments.
A system that can take five or more years to deliver a final judgment, at a cost of hundreds of thousands of dollars or more, fundamentally fails to serve Ontario's citizens and businesses.
Without significant reform, our civil justice system will cease to be relevant. It is our collective responsibility to ensure that our justice system not only remains relevant but that it becomes a model for other jurisdictions to follow. I am encouraged to know from our discussions and your public remarks that you share these concerns.
To advance that shared objective, I ask that you establish a small task force of lawyers, judges and academics to make recommendations for bold civil justice reform in Ontario.
Almost ten years have passed since the Report of the Honourable Coulter A. Osborne, QC. ("Osborne Report") was submitted to the Government. Implementing elements of the Osborne Report has had positive effects, for example by expanding the scope of summary judgment and by formally introducing the concept of proportionality into the Rules.
Unfortunately, other valuable recommendations in the Osborne Report have still not been implemented — most notably, proposals to reform the Civil Rules Committee. Those proposals recognized the need to make the process of rule reform more nimble, transparent and accessible. A decade later, those objectives remain as important as ever, and the need for action even greater.
Since the release of the Osborne Report, wait times for trials of more than 2 weeks duration remain unacceptable. Trials of more than 4 weeks are being scheduled in Toronto, Milton and elsewhere as long as three years from the time the case is ready to be tried. With the inevitable diversion of judicial resources away from civil cases to criminal cases in response to R v. Jordan, these delays will only increase and the civil justice system will only be left further behind.
In light of this, and in keeping with the Supreme Court of Canada's clear call for a "culture shift" in the approach to civil litigation in Canada,1 the time is now for a time-limited task force to consider bold reform.
I emphasize that this request does not press you to endorse any specific initiatives — but asks for your leadership in establishing a group with the expertise to offer meaningful reform proposals.
The task force should be enabled to review other jurisdictions that have achieved meaningful reform, and could address, among other things, the following:
- A fixed trial date for all civil actions given out on the date of issuance of the claim, with strict limits on extensions and adjournments (a so-called "rocket docket");
- The introduction of case-management for all or certain types of civil actions;
- Application or hybrid-trial as the default procedure over a traditional trial in contract cases and perhaps others;
- The role of the Divisional Court in respect of interlocutory appeals;
- Reform of the Civil Rules Committee - size, composition, representativeness and transparency;
- Mandatory time limits on oral argument on motions, applications and trials;
- Increase in the simplified procedure monetary limit to $250,000; and
- The role of judicial mediation and re-purposing of pre-trial conferences.
The urgency for this task cannot be overstated. The need to consider civil reform is generally recognized by the bar, We are pleased to advise that this request is supported by the Ontario Trial Lawyers Association and Canadian Defence Lawyers.
It should go without saying that the study itself cannot take too long to develop. A fixed deadline of 6 months would permit a focussed and effective determination of initiatives that can achieve meaningful and lasting reform.
I welcome the opportunity to discuss this proposal with you in greater detail.
Yours truly,
ONTARIO BAR ASSOCIATION
David Sterns, President
c. C. Stevenson (OBA Director, Chair of Public Affairs)
c. M. Whelton (Chair of Civil Litigation section)
c. Ontario Trial Lawyers Association
c. Canadian Defence Lawyers
1 "...a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system." Hryniak v. Mauldin, [2014] I S.C.R. 87 at para. 2