The Civil Rules Review
The Civil Rules Review (“CRR”) was launched in 2024 as a joint initiative of the Chief Justice of the Ontario Superior Court of Justice and the Attorney General. The CRR’s mandate was to propose wholesale reforms to the Rules of Civil Procedure (the “Rules”) so that the civil justice system can be more accessible and to reduce costs and delays.
A working group of lawyers, judges and academics was created to identify issues and create proposals (the “Working Group”). Following an earlier Consultation Paper, on December 19, 2025, the Working Group released its final policy report (the “Report”) to the public. Pages 176-183 of the Report relate to pre-trial procedures.
(Note: all quotations in this article are from the Report, except where otherwise noted.)
The current process
The current civil pre-trial system provides for the following forms of court-annexed ADR:
- mandatory mediation, with a private mediator and at parties’ own expense, but only in Toronto and Ottawa (since 1999) along with Essex County, including Windsor (since 2002),
- required attendance at a pre-trial conference (“pre-trial”) before a judge or an associate justice, in all jurisdictions, “during which efforts are made to settle the matter” in addition to trial management matters, but where “[in] practice, much more time is typically spent on settlement discussions than on trial management, and
Problems with the current process
The Working Group identified the following problems with the current system:
- Mandatory mediation (a.k.a. “OMMP”) needs to be “expanded from the limited jurisdictions in which it is currently imposed”.
- The prescribed fees that charged by those mediators conducting a mandatory mediation who are on official, local rosters (“roster rates”) have not been updated since 1999. Roster rates are “far below current market pricing for legal services, resulting in limited incentive for individuals to serve as roster mediators”, although parties are free to hire non-roster mediators at market rates.
- The effectiveness of settlement discussions at pre-trials “can vary, meaning that, in some cases, this stage may not represent the best use of judicial time”, “limited judicial resources have created unacceptable backlogs in some regions”, and “because most pre-trial time is spent on settlement discussions, insufficient attention is given to trial management” (and greater focus on the latter “could streamline the trial process and shorten trials”).
- While not identified as a problem per se, binding Judicial Dispute Resolution (“JDR”) - which was recently codified by Rule 43 of the Family Law Rules - is currently unavailable to civil litigants.
Proposed reforms
As a result, the Woking Group proposed the following landmark reforms:
1. Province-wide mandatory mediation
Expansion of mandatory mediation province-wide with certain exceptions that are detailed in the Report, some of which exist under the current Rules, plus:
- establishment of “a province-wide roster of mediators, enabled by virtual mediation”,
- establishment of “a task force to update the roster rates to reflect current market conditions”, and
- creation of “continuing professional development standards for roster mediators for quality assurance purposes”.
Based on the strong opposition of consultees, the Working Group did not in the end recommend a form of evaluative mediation contained in their Consultation Paper (see pp. 67 – 68).
2. Changes to pre-trials
“Eliminating the judicial settlement aspect of pre-trial conferences”. Pre-trials would retain only the trial management component through a dedicated Trial Management Conference (“TMC”). TMCs are described in detail in Section 6 P. of the Report. However, the court will “retain a discretion to order a judicial settlement conference in circumstances that warrant it and where resources permit it”.
In responses to critics of this move to eliminate (for the most part) this form of court-annexed ADR, the Working Group pointed to the long wait times for pre-trials and that, given that a “robust mediation industry has developed” over the more than 25 years of the OMMP’s existence, litigants “should now have little difficulty accessing mediators with case-specific expertise.”
3. Expanding JDR to civil cases
Adoption of the JDR model found in R. 43 of the Family Law Rules.
According to the Report, JDR “allows the parties to choose a summary process as an alternative to a trial. It envisions a single, one-day hearing which begins with a judicial mediation and, if that proves unsuccessful, a summary determination of the parties’ dispute”.
In addition,
- the ‘entire proceeding is conducted under oath or affirmation”,
- each “party files a short affidavit before the hearing”,
- the “presiding judge may express his or her views on the issues as the day proceeds”.
- at “the outset, the judge seeks to settle issues on consent. If there are issues that do not settle, he or she will hear brief submissions and render a decision on the merits”,
- the judge “may rely on anything said during the hearing day in reaching a decision on the merits”
- alternatively, the judge “may determine that the matter is not suitable for summary determination, in which case the hearing is treated a a case conference”.
The Report explains that JDR is suitable for cases “in which there are relatively narrow issues in dispute, no significant credibility issues, no oral evidence required from a non-party witness, and where it is reasonable to expect that the issues can be resolved or determined in a summary manner”.
Commentary
1. Mandatory Mediation Expansion
Jennifer Egsgard, a Toronto based mediator, and former litigator, who was Chair of OMPP working group of the OBA from 2018-23 (and which authored Mandatory Mediation in Ontario: Taking Stock after 20 Years that is referred to in the Report), is “very pleased that the Working Group has made an evidence-based recommendation to expand mandatory mediation across Ontario. In 2001, a review of 23,000 cases showed that mandatory mediation resulted in reduced time to dispose of cases, higher number of settlements, lower costs to litigants and high satisfaction among lawyer and parties”.
Egsgard also pointed to a 2019 survey that “showed 90% of respondent OBA members favoured expansion of mandatory mediation across the province.”
She added that “Ontario's mandatory mediation program has attracted interest from governments around the world - most recently the United Kingdom when announcing its own automatic mediation initiative cited Ontario's success. It is inequitable that only three Ontario communities have access to a world-leading program that improves access to justice. I’m hopeful the Attorney General will adopt this important recommendation.”
2. JDR
The impact of mandatory mediation on JDR
Firstly, it is worth noting that the Family Law Rules do not provide for mandatory mediation, suggesting that JDR may be more valuable, and, therefore, more attractive, to family law litigants as compared to civil litigants. Also, it is unclear if future civil litigants would be required to participate in a (private) mediation before they can consent to JDR. If so, this could create an extra step that is not imposed on family law litigants.
Potential strain on judicial resources
Critics, including the OBA, have argued that if JDR becomes popular then that could put a new strain on judicial resources. The Working Group’s response is that to “the extent that binding JDR places demands on the judiciary, one might consider these demands to be an indicator of its success as a reform initiative.” However, it is unclear at this time whether the possible success of JDR would or would not result in a net judge shortage.
Process concerns
Finally, the possibility of JDR success (or even its existence) raises serious process issues.
There are some similarities between JDR and other hybrid ADR processes like Mediation-Arbitration (“Med-Arb”) and Mediation-Adjudication (“Med-Adj”). However, Med-Arb and Med-Adj processes are not conducted by sitting judges.
According to Colm Brannigan, an Ontario mediator and arbitrator, as well as a leading Med-Arb commentator and instructor, “there is a fundamental difference between the skills required to manage an effective mediation and those needed in adjudication. If judges are to act as mediators in JDR, what type of training, if any, will be provided? This is important because judges are cloaked in the power of their position.”
In fact, judges – especially newer appointees – will likely have far less experience setting cases if they are no longer called upon to do so at pre-trial conferences.
Brannigan also has concerns about the fact that JDR takes place in a single day, and the parties are under oath during the entire process:
“There is not a defined transition phase between mediation and adjudication, as in the ADR Institute of Canada’s Med-Arb Rules. Even labour Med-Arb and Med-Adj at the HRTO, to which the Rules don’t apply, envision a delineation between the mediation and arbitration/adjudication.
Without a proper transition between phases, will parties be confused over the judge’s role as a mediator and then decision maker? Will the parties see the judge’s “views” as coercive and feel obliged to accept them? There is a significant amount of case law in Ontario arising from flawed Med-Arb processes which could bleed over into JDR.”
Conclusion
For now, it remains to be seen if the Attorney General will adopt the changes outlined above, along with the many other reforms recommended in the Report. Certainly though, the expansion of mandatory mediation and increases to roster rates – either with or without pre-trial conference reform and JDR - is long overdue and will promote the early resolution of civil disputes.
Author’s Note:This article was adapted from the author’s recent two articles for Law360 Canada
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.