There may be very significant changes coming to the civil litigation process in Ontario which will have a substantial impact on the way employment law cases proceed through the courts.
Ontario’s Current System of Civil Litigation
Ontario’s current system of civil litigation is similar to what existed over 100 years ago. The current system includes the exchange of affidavits of documents, examinations for discovery, undertakings and refusals, motions, a pretrial conference, and eventually a trial. The vast majority of cases settle well before a trial, and part of the reason is due to the considerable delays and expense associated with our current system, which makes proceeding with a trial unattainable for many litigants.
Civil Rules Review
On January 25, 2024, Attorney General Downey and Chief Justice Morawetz launched the Civil Rules Review (“CRR”), which was mandated to develop proposals for reforming the Rules of Civil Procedure to make civil court proceedings more efficient, affordable, and accessible.
The CRR began with the premise that the status quo is not an option, and that the current system is not working. Rather than proposing minor adjustments, the CRR focused on developing an entirely new process from the ground up.
CRR’s Consultation Paper
On April 1, 2025, the CRR released its Phase 2 Consultation Paper. The paper proposes a drastic overhaul to the civil litigation system, which is designed to:
- make the process more accessible,
- reduce the number of interlocutory steps, and
- have a determinative hearing of each case on its merits within 2 years (which would be a major improvement over the current timelines).
The goal is to have the new system implemented by January, 2026.
The proposals are comprehensive and bold. If implemented, they would completely change the way all civil litigation proceeds in Ontario, including employment law cases. In my view, these changes would be for the better.
Proposals for Reform
One of the most striking proposals is to completely eliminate examinations for discovery. This removes a very significant and costly part of the litigation process. The CRR proposed other ways for the parties to obtain and assess the relevant evidence through an “up front evidence model”.
There are many other changes that are proposed in the paper, and this article will not go through each of them. Examples of some of the proposed changes are:
- A simpler and more accessible system of pleadings for commencing lawsuits;
- New rules for service of pleadings, which are designed to reduce instances of defendants avoiding being served;
- Immediately after the close of pleadings, the parties would exchange sworn witness statements from all the witnesses on which the party intends to rely to prove their case. The witness statements will ultimately form the party’s case in chief at the trial;
- Changes to documentary disclosure rules to provide for a modified reliance-based disclosure, which involves a much narrower scope of material than under the current rules;
- The establishment of scheduling conferences and direction conferences to case manage all lawsuits, schedule the necessary steps and avoid unnecessary motions; and
- A new method of summary hearings, which eliminates the possibility of the court “punting” the decision to trial.
If these proposals are implemented, it would mean that employment law cases become:
- less costly,
- more expeditious, and
- more accessible to many litigants.
While the new system would continue to encourage settlement and would mandate mediation, the option of proceeding to trial would be more realistic in many cases.
Conclusion
It remains to be seen how many of CRR’s proposals are implemented. I believe that these proposals are very positive, creative and bold, and should be implemented in their entirety. Although it will be a difficult adjustment for many lawyers, the result will be a better and more accessible system in which more cases are decided on their merits.
If you are a party to employment law litigation as an employer or you are an employee considering starting a lawsuit, we can help advise you on your legal situation, including the appropriate strategy for moving your case forward. Please feel free to contact us.
