The new year promises change in Ontario’s civil litigation system as significant revisions to the Rules of Civil Procedure, RRO 1990, Reg 194 are expected to be finalized and come into force. Following release of the Phase 2 Consultation Report by the Civil Rules Review Working Committee in April 2025, and feedback that has been provided since then, an Implementation Committee has now been struck. It is anticipated that changes will begin rolling out in multiple phases starting in mid-2026, with some level of “grandfathering” inherent in the process.
The “New” Rules represent a significant reimagining of civil procedure in Ontario. Emphasizing efficiency, they are designed to bring the majority of civil proceedings to a decision on the merits within two years - a substantial reduction from the current Ontario average of six years. To ensure they are not caught flat-footed, advocates should begin now to consider how to prosecute and defend actions strategically under the “New” Rules, as well as engage in similar conversations with clients regarding pending actions.
Key points to consider include:
Pre-litigation Protocols
- Embracing the new pre-litigation protocols by participating in strategic discussions regarding early settlement will likely be advantageous for many litigants who are interested in settling a case rather than prosecuting it through to trial. This is particularly true for litigants who expect the costs associated with the up-front-evidence model to be unwieldy, marking a potential shift in litigation tactics and the advisability of commencing certain claims for certain clients.
- Advocates who routinely act for clients that will be subject to pre-litigation protocols (i.e. banks, insurers) should start discussing the approach to be taken in managing the new and additional requirements of those protocols now, to ensure appropriate resources and guidelines are in place.
New Rules v. Existing Rules
- While grandfathering of certain actions under the “Old” Rules is expected for a period of time, as we approach the rollout of the “New” Rules, plaintiff’s counsel ought to consider whether they should be commencing actions now or deferring them to ensure they proceed under the “New” Rules. Counsel should give particular consideration to the costs associated with the up-front-evidence model, the availability of discoveries and motions, and the potential for early settlement.
Conferencing v. Motions
- Parties will be encouraged to embrace Directions Conferences as the venue for setting timetables and dealing with procedural and some substantive relief currently sought by way of motion.
- Advocates should make strategic use of Directions Conferences, including by determining what relief can be advantageously and expediently sought in writing or without evidence.
- Advocates should take greater care in setting realistic dates for all aspects of a proceeding, as adjournments and extensions will not be readily granted.
Trial v. Summary Track
- Whether an action will proceed on the Summary or Trial Track will depend on the nature of the claim and the value of damages. Claims valued at over $500,000 will proceed on the Trial Track. Lower value claims, and certain matters of any value that include issues such as liquidated debt, mortgage enforcement, or construction liens will proceed by way of the Summary Track.
- Prior to commencement of a claim, advocates should assess whether their proceeding would benefit from summary determination or a trial proceeding, including whether the opportunity of limited discoveries afforded to actions on the Trial Track would be advantageous. Notably, it is expected that high value matters on the Trial Track will be permitted to proceed by way of the Summary Track on consent.
Pleadings v. Witness Statements
- A new fillable form will replace traditional pleadings, resulting in standardization across proceedings.
- Witness statements, required to be delivered at the outset of a proceeding, will ensure that parties have a better understanding of each other’s evidence at an early stage. These are also expected to be used strategically by parties to frame their case given the standardization of pleadings.
- In high value matters, advocates will want to make strategic use of time-limited examinations for discovery to both test witness credibility and get to the heart of a witness’ evidence (which, up until that juncture, will have been strategically framed by their counsel).
Relevance v. Reliance Model
- The proposed reliance-based disclosure model and corresponding limitation on discovery rights will likely be familiar to those experienced with commercial arbitration.
- Advocates will no longer be able to rely on oral discovery to refine positions pre-trial. To meet their up-front disclosure obligations, advocates should work with their clients to develop a more fulsome understanding of their position, as well as the key pieces of evidence relied upon, before finalizing their pleading.
- To commence a claim, parties must be in a financial position to incur the expenses associated with the up-front evidence model, instead of expecting to defer those expenses until later in the litigation process, as under the “Old” Rules. Accordingly, parties should make full use of pre-litigation protocols in order to best understand all sides of a matter and determine whether to bring a claim at all.
The Bottom Line for Litigants
To ensure the “New” Rules benefit their clients, advocates should engage in early discussions with them regarding how these reforms will affect case progression, discovery efforts, and settlement dynamics. By balancing their roles as zealous advocates and officers of the court, counsel will play a vital role in the evolution and refinement of the new system as the legal community continues to learn, interpret, apply, and adapt to the “New” Rules.
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