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“We are deeply concerned about the changes,” said Allen Wynperle, chair of the non-profit , adding that apart from the early costs most litigants can’t afford, the proposals could “devastate the viability of small and sole civil practices — the ‘Main Street’ lawyers who form the backbone of legal service delivery across Ontario.”

Last year, Superior Court Chief Justice Geoffrey Morawetz and Attorney General Doug Downey struck a working group to look at the civil system, which has been described as too complex, full of delays and unaffordable for most.

“Our civil justice system, in its present form, is indeed in crisis,” said , which said simply adding resources won’t solve the underlying issues.

“In fact, access to justice has been at a crisis point for decades … The crisis has only deepened since then and may now fairly be described as existential. Absent impactful reforms, our civil justice system risks becoming irrelevant.”

The report said “delays are only part of the problem … The cost of litigation is prohibitive for many Ontarians. Even those who can afford to access the civil justice system are confronted with the troubling reality of excessive delays and costs, meaning that many civil cases are simply not economically rational to pursue” and could lead to a loss of confidence in the system.

Proposed changes include doing away with the discovery process, during which both sides have a chance to interview witnesses and glean information beyond documents, as well changes to other procedural aspects. 

Consultations wrap up June 16, and legal associations are asking for an extension. 

“One size does not fit all, and that is a concern with this proposal,” said Mary-Anne Strong, president of the . “We want to make sure that each case is being considered on its merits, and has the opportunity to be considered on its merits, to get to a just result.”

The organization says it is “very concerned about the proposed changes” and has been urging the attorney general to extend the consultations.

The association wants time to “provide a meaningful response that incorporates alternate solutions,” said president Lisa Pool, but will nonetheless be “working diligently to meet this deadline” given the government has not signalled it is willing to extend it.

Jack Fazzari, a spokesperson for Downey, called it a “historic review” and said the working group has been “tasked with delivering on a plan to modernize the system by proposing changes to the rules of civil procedure — this means making the system more efficient, affordable, and accessible.”

Downey, he added, “looks forward to receiving the final recommendations from the civil rules review later this year.”

In its second report, the working group called for a “focus on the interlocutory steps that occur between the notice pleading and the hearing, namely discovery and motions practice. We believe these two areas are where the maximalist approach to litigating is most pronounced” and leading to delays.

“Our proposed reforms aim to strike a practical balance between ensuring litigation is fair, promoting early resolution of disputes, and providing all Ontarians with access to timely and cost-effective civil justice,” it said.

Using an “upfront evidence model” will help determine the strength of cases, it added.

“The proposed reforms will undoubtedly have many initial critics,” the working group said. “It is important to recognize, however, that while they may appear ‘new,’ they are not experimental” and follow changes in the United Kingdom, Australia, New Zealand and Singapore.

But legal groups say those systems aren’t the same as Ontario’s, and that changes made here will lead to more cases heading to trial without the benefit of discoveries — which they say often leads to settlements, avoiding trials — and that the lack of justices and court resources hasn’t been addressed.

Some also questioned the composition of the working group, saying smaller practitioners in areas impacted should have better representation.

The Federation of Ontario Law Associations argues there is no “reliable court data” backing the recommendations and claims they will improve the system.

The working group’s recommendation “front-loads enormous costs that normally do not arise until much later in the civil litigation process,” the association said. “Most of our clients are not able to commit five figures at the front-end of a lawsuit before the defence is even known.”

Strong said oral discoveries, especially in personal injury cases, are “fundamental to what we do. It’s the point where we gather facts that are contained in people’s minds, not on documents, and without those facts, we are not going to have all the evidence we need in order to evaluate risk and process the case properly.”

As well, “this consultation does not address where we see the true delay — the true delay is when we go to the courthouse and we seek our court date, and in many cases, we already have a trial date, and we’re being told we have no judges, we have no staff, or we have no courtrooms.”

While the federal government needs to appoint more judges, and there are “greater efficiencies that could happen with the trial process,” Strong said, adding the province needs to increase resources in courthouses.

“This proposal is tyring to shorten up what happens before we get there,” she added. “But if we all rush there, and there’s still no resources, we haven’t solved the problem.”