Ontario Rules Changes: practical guidance from the bench, plaintiff and defence counsel

[00:00:09] Mallory Hendry: Hello, everyone, and welcome. I'm Mallory Hendry, Content Specialist Manager with Canadian Lawyer. Thanks for joining us for today's webinar, Ontario Rules Changes, Practical Guidance from the Bench, Plaintiff, and Defense Counsel. Today, we're joined by Warren Whiteknight, partner at Bergeron Clifford, Kevin Cook, partner at Cunningham Swan, and East Regional Senior Justice Graham Yu of the Superior Court of Justice. These experienced speakers are ready to delve into this timely issue, including how this new regime will shape litigation strategy and client outcomes from all sides of the table. During the presentation, our panelists will address questions wherever possible, so be sure to type any questions that may occur to you as you're listening into the Q&A box within the webinar software, and if they are unable to get to your question during the presentation, you can feel free to reach out to Warren or Kevin after the webinar. I'll turn things over to Warren now to begin. Take it away.

[00:01:05] Warren WhiteKnight: Thanks for being here, everybody. Really glad to have this opportunity to discuss the final policy proposal with everybody. As was mentioned, there's a lot of information to cover, and we may not actually get to a Q&A session at the end, so please pop those questions in the chat, or in the Q&A box. The final policy proposal, as you're probably aware, is about 280 pages long. We were able to distill it to about 60 slides, but that only gives us a minute per slide, so the chance of getting to that Q&A is… fairly small. I am very grateful to Kevin and Justice Mew for being here, so let's jump right in. Oh, one other mention. On the last slide of the day is going to be a QR code, and if you scan that, you're going to be able to download the entire presentation, so we'll linger on that at the end of the presentation today. So, the purpose of the final policy proposal, the overhaul of the rules, is not a tinkering. Anybody who's read through them knows that. The task was a complete overhaul, okay? The system, from the perspective of the Attorney General and the committee that was struck, is that the system is broken, it's not working for people. And the task was to reduce delays, reduce costs, and increase access to civil justice. Kevin's gonna take us through some of the history of how they did this work.

[00:02:28] Kevin Cooke: Thanks, Warren. Yes, so the… the project was launched in January 2024. It was a project conceived by, the Attorney General, Doug Downey, as well as Chief Justice Morowitz. And the goal of the project was to engage in big, bold changes to the civil justice system. The mandate was not to tinker around the edges, but rather to engage in a complete overhaul of what we now know as the civil rules. They asked Justice Boswell, who's a Superior Court Justice who's sitting in Barrie, as well as Allison Spiegel, who's a litigator from the Greater Toronto Area, to… spearhead the committee and lead it forward. From there, they created what is effectually known as the CRR Working Group, that would be the Civil Rules Review Working Group, and there were a number of subgroups that were engaged throughout the process as well. In May 2024, Phase 1 of the report was, was released. This was an engagement with the bar generally to, explore some concepts that might be considered as part of the review. But really, the, the main, Action item came in April 2025. The Phase 2 report was released on April 1st, 2025.

[00:03:51] Kevin Cooke: From there, 75 days were provided to the bar to provide responses to the proposed changes. This was a fulsome engagement consultation process, and over 2,000, I believe, pages of responses were received in response to that Phase 2 report. I would note that many organizations like FOLA, OBA, the Advocate Society, OTLA, Canadian Defense Lawyers, they all responded with Folsom responses. There were a number of law associations, but there were also independent responses from lawyers, academics, and even stakeholders that were provided to that Phase 2 report. Eventually, I know it says in the slide October 31st, 2025, but I believe the public release of the Phase 3 report, the final report, was released on December 18th, 2025. In terms of some of the feedback that was received from that Phase 2 report, you'll see on this slide, I won't go through each of the positive and negatives, I'd simply highlight that shorter timelines to get civil cases moving more efficiently, that was a broadly positive perception of what the Phase 2 report was aiming to achieve. And then as well, the elimination of motions culture. And the introduction of directions conferences. That was… those were two of the main positive, responses received with respect to that Phase 2 report. Some universal concerns, we'll call them, and I'd be oversimplifying it if I tried to describe them here, but broadly, the concerns raised by the bar were the elimination of oral examinations, and some concerns about the upfront evidence model, including the front-loading of costs.

[00:05:43] Warren WhiteKnight: We're gonna hear from Justice Mew about some of the kind of background theory and purpose of the, the overhaul.

[00:05:52] Justice Graeme Mew: All right, so, the goals of the first policy propo… of the final policy proposal, and before I get to that, I should say, Mallory promoted me. I'm not the regional senior justice for the East Region, just the humble local administrative judge in Kingston and Apanye. But they're a trio of new…guiding principles to replace the guiding principles that currently exist in Rule 1.04, and these goals there are… there are 3 of them. Or there are three… a trio of new, what have been called on the slide, new rules. The, the overarching goals, which are to delay cost reduction, increase access to justice. By, by tying, them to the goals. The rules were direct that the court must seek to achieve the goals when imposing orders, giving directions. An important, development, is the, the duty to cooperate.

[00:07:11] Justice Graeme Mew: That will be codified in the rules. It will require early issue identification, proportionality, which of course is already a guiding principle, compliance with the rules and timelines, and we'll be talking more about timelines as we go along. Use of technology for efficiency and efficacy, and courtesy, cooperation, and prompt communication coupled with that is, what's called the Representations Rule, which… It's aimed at discouraging parties from advancing patently indefensible positions, engaging in gamesmanship, advancing arguments without factual support. One of the messages is, is that, but from the report is that, an overly technical application of the rules, is, is, is not something that should be encouraged by the court, the rejection of the so-called gotcha litigation, tactics. And the, the possible sanction by use of, full indemnity costs. There isn't actually anything terribly radically about these proposals. Those of you who've practiced in the commercial courts. We'll see that there's, a distinct resonance, between, between these guiding principles. And, Justice Farley's, three C's, which were developed in the 1990s, cooperation, communication, and common sense, probably with the emphasis on common sense. But the, the idea is, I think, a progression of the, of the mindset change that, or the culture change that, of was… was first, sort of, promoted in Hiriniac.

[00:09:04] Warren WhiteKnight: Thank you, Justice Mew. With that background and kind of some of the philosophy behind the final policy proposal, Kevin's going to start taking us through how these cases will actually be tracked.

[00:09:18] Kevin Cooke: Thanks, Warren. So, again, as Warren highlighted from the outset, this is a 281-page comprehensive suggestion as to how the civil rules will be reformed. So we'll do our best to try and summarize it in a very quick quick manner, but what, the big… the big takeaway from how cases will run is that there'll be a single access point. Litigants will need to determine which track under which they want to advance their claim. And the way I would look at this is really that there's a summary track where the prayer for relief is under $500,000, and then the trial track for cases valued over $500,000. You'll see there under number 1 that there's a third track. We'll get into specifics of that in a moment, but that's called the application track. It would be critical to give meaningful consideration to which track would be most appropriate to pursue at the outset of litigation. It wouldn't be appropriate to consider it afterwards. There could be cost consequences. The court could transfer an action between tracks if the incorrect track is selected, so it really is forcing Litigants to consider their case from the outset, and how they want to advance it.

[00:10:34] Kevin Cooke: In terms of the three different tracks, you'll see here on this slide some different examples, specifically under the summary track. option. I would… I would emphasize that on page 23 of the final report, and that's easily, I think if you put that into Google, it's the first thing that comes up. Under page 23, there's a nice flow chart that helps really provide a visual aid as to how different tracks will… different actions will proceed under different tracks. So I'd really encourage all people attending today to certainly review the policy proposal, but also look at page 23, which is a very helpful visual device. With that said. The summary hearing track will be used to determine claims advanced under the application track and summary track. There will be a conventional trial for the trial track. And you can see there some examples of claims that might be typically advanced under the summary track.

[00:11:34] Kevin Cooke: In terms of the, the applications track, processes, there's the introduction in this, policy document of a directions conference that would be filed… that would commence after the filing of a claim, and it's used to schedule, the hearing of critical dates throughout the application track process, including dates to exchange witness… sworn witness statements. Dates to Exchange Expert Reports. Dates that cross-examinations should be completed upon, and then mediation if it's applicable in that case, as well as the exchange of factoms. And it all ends up in the hearing of a dispositive summary hearing at the end of it, which would all be articulated in that initial conference. In terms of the summary track processes, that would be claims from the $50,000 value right up until the $500,000 value. Again, similar to the applications track, there would be a directions conference scheduled upon the closure of pleadings, but critical points of the litigation are scheduled, and you'll see some of those critical points highlighted in the slide. The summary hearing would be primarily based on a paper record, with a limited role for oral evidence, most likely on the cross-examinations on the sworn witness statements that were exchanged throughout the process. And you'll note there the final, the final, bullet, that the cost cap currently in place under Rule 76 would not apply under this, under this track. And finally… Interesting.

[00:13:07] Warren WhiteKnight: Kevin. I didn't see anywhere in the rules, and maybe you know, one of you two, whether or not it's proposed that, like, under the current Rule 76, there will be no juries for the summary track. Do either of you know? Because the final policy proposal doesn't address it.

[00:13:24] Justice Graeme Mew: Don't.

[00:13:25] Warren WhiteKnight: So that'll be interesting, because I thought that Rule 76 kind of simplified things a bit, because we got a judge alone, and we may be taking a step backwards, unless that gets addressed in the final draft, so we shall see.

[00:13:37] Justice Graeme Mew: Well, it would certainly be…

[00:13:39] Justice Graeme Mew: I mean, you couldn't have a summary process in front of a jury, so really, it's… I guess the question would be at what? What would be the threshold at which a jury trial either became available or was no longer available.

[00:13:56] Warren WhiteKnight: But there are still some unknowns, I guess, so… Kevin.

[00:14:00] Kevin Cooke: I'll turn back now to the final summary of the trial track process. So, again, a directions conference wouldn't be immediately scheduled, as would be the case under the other two options, but rather a scheduling conference at the one-year anniversary of the onset or the introduction of the claim. So, a number of steps need to be taken before that one-year anniversary. So, you see the front-loading of the litigation preparation process. The big difference here would be… is that there would be focused examinations available under this track. There'll be more on this later in the presentation, but broadly, we would say that there's 90 seconds of focused questioning permitted per party, and this would be in lieu of the traditional examinations for discovery. From there, a trial management conference would be scheduled, and the aim of the process would be to have a trial at the 2-year or around the 2-year anniversary of the issuance of the claim.

[00:15:00] Warren WhiteKnight: Kevin, I think you had a Freudian slip. You said there's gonna be 90 seconds of discovery, which is…

[00:15:04] Kevin Cooke: Well, it'll feel like that, but it's 90 minutes, yes.

[00:15:08] Warren WhiteKnight: That's right. All right, talking, moving on about how long, things are gonna take, Justice Mew, can you address this?

[00:15:16] Justice Graeme Mew: Well, the goal of the, of the report is that, dispositive hearings, for most claims, commenced under the new system will be, will take place within roughly 2 years. Of the close of pleadings. And that obviously compares to the current time, certainly for trials. Which, depending on which part of the province you're in, can be give or take 5 years for, for many, civil proceedings. The idea is to have far tighter management of deadlines, and there will be…soft touch, effectively soft-touch case management. There are many cases, and we'll talk about the various types of conference that are contemplated in a minute.

[00:16:12] Justice Graeme Mew: But there'll be many cases that run through the system without a significant amount of judicial intervention, and others that require, more regular or more frequent judicial intervention. But the idea is to, is to hold people to…Timetables, once they have been set. And, The idea, I guess the scheme of the, of the proposals is the judicial time that is currently, engaged, on motions, practice, and some of the things that, these proposals seek to eliminate can then be diverted, to, to, to, to case management, and, and coupled with processes that, should result in most trials taking less time, to conduct. The, the aspiration is to, is to, is to move cases, through the system far more quickly, than is being done at the moment.

[00:17:31] Justice Graeme Mew: I think there's a recognition that there are certain types of cases where pushing a case through in two years may not be appropriate. Certain personal injury litigation, you can imagine, would fall into that category. Cases in which there are, parties under a disability, or where, for other reasons, the damages haven't yet been crystallized. The contemplation is that there will be a process whereby, upon application, a case can be put on what's called an inactive list for 12 months, in which there wouldn't be any formal steps in the litigation taken. And I think the idea, obviously, is that one size doesn't fit all, and that there needs to be, there needs to be consideration of the individual demands that cases will, will have. And then there are certain types of parties, who, perhaps need more time than others. If you're suing a large organization, the federal government, for example, who might need to coordinate internally across multiple departments, you can see that, as I said, one size won't necessarily fit all. But the objective is…To move cases through, for most cases, to a dispositive hearing within 2 years.

[00:19:06] Warren WhiteKnight: Thank you, Your Honor. We've had a number of questions come in. I just want to address a couple of them really quickly. So there's a couple questions that are similar, and if I kind of summarize them, people are noting that the summary track and application track are quite similar. Was there consideration of doing two tracks instead of three? Is there going to be, is there going to be any teeth for the court in terms of this? So, yes, I think the tracks are quite similar. The application track basically is a continuation of existing application practice. The summary track is similar to the application track, but applications and summary trials just address different types of actions. And Kevin addressed briefly, that there are going to be teeth in the rules which allow the denial of costs, or the ordering of costs, when a matter is started in the wrong process. So it does look hopeful that there's going to be some actual teeth for the court in that regard. Your Honor, we've got a question, I think more directed towards you, because I just wouldn't know. So it says, with trials happening. Within, two years of close of pleadings, yet so many matters these days being adjourned or canceled due to lack of judicial resources, will the province be hiring significantly more judges?

[00:20:18] Justice Graeme Mew: Well, the judges in the Superior Court are actually appointed by the federal government, not the provinces, although the associate judges are appointed by the province. It was beyond the remit of the, of the, of the, of the, of the committee to, to, to look at judicial resources, so, so this is a…A proposal that is, is based on, essentially the resources that are currently available. I think, you know, there will clearly be a transition period, and that will be a challenge. One of the proposals is to, to use, and we may come on to this a bit later, but to use, senior members of the bar to assist with certain, certain parts of the process. And that, again, is something that's been done before. Those of you as long in the tooth as I am will remember, certainly in Toronto and Ottawa, that the regional senior judges there used senior members of the bar to conduct civil pretrials back in the noughties. So, we will… we'll be…you know, perhaps looking at those sorts of innovations to help with the transition, certainly. But it's an ambitious, there's no doubt about it, this is an ambitious, project that, will require us to think very carefully about how current judicial resources get allocated, and we probably won't be able to do things the same way, under the new regime than we do at the moment.

[00:22:01] Warren WhiteKnight: Thank you, Your Honor. I think we've got our first, poll here. If, everybody can take a second to…to answer this question, so how long will cases take? Do you think most cases can efficiently and justly be decided or settled in 2 years or less? So this is what's contemplated by these new rules. How do people, feel about that? Let's see what the, what the collective thinks. We've got 659 people, and it's been growing every few minutes as people join during their lunch hour. We've got 659 people on the webinar right now, so it's a decent sample size. Let's see when this poll closes momentarily, I would think. Everyone can just go ahead and click on that. We are very evenly split, so almost right down the middle. So, yes, in most cases, and no, not in others. So, I think that was kind of how these consultations went when people read this final policy proposal. Some people were all in, and others not so much.

[00:23:06] Justice Graeme Mew: Yeah, that's interesting. I mean, I have to say I'm cautiously optimistic, but as I said, it's challenging. There are a couple of questions here, Warren. One is timelines for the implementation. We don't know.

[00:23:18] Warren WhiteKnight: You just don't know.

[00:23:18] Justice Graeme Mew: The report is on the Attorney General's desk, and that's about as much as one can say. The other… there's another comment saying the three-tiered track system's very similar to the civil rules in England and Wales, and that's right. I have some familiar… familiarity with those rules. And, certainly that was one of the jurisdictions that, was engaged with, Along with several others, as these proposals were being developed.

[00:23:50] Warren WhiteKnight: Yeah, I was impressed with the consultation, you know, the Singapore rules all around the world. So, Your Honor, I think you've addressed some of these issues already, about if more time is needed, and kind of how this timeline's gonna work, but if you have any comments here…

[00:24:08] Justice Graeme Mew: Well, nope.

[00:24:16] Warren WhiteKnight: I think the punchline for me was basically, most cases are gonna run really fast, and if you have an exceptional case, there may be a one-time exemption, so don't be the boy who cried wolf and ask for, you know, multiple adjournments, but if you really need one, there may be one available. But cases are going to run fast, which I'm cautiously optimistic about, as well. And you, I think, addressed this a little bit, but some of the factors that might lead to a permissible delay, so to request for a one-time adjournment would be, you know, a personal injury case where damages haven't crystallized. or where a case can have some aspect move forward, like liability, but while we wait for damages to crystallize, etc. The federal government also seems to get, you know, in other such large institutions may get some exceptions. But there's that question relating to what you spoke about at the beginning, Your Honor, as to whether or not the requested delay will be otherwise consistent with the goals. Which are, I hope, gonna have more teeth and more sway. So, we'll see how that pans out. We're gonna switch gears and talk about pre-litigation protocols. So, I think this is, Kevin mentioned at the beginning, this was one aspect of the final policy proposal that was not as well received.

[00:25:31] Warren WhiteKnight: And, we have a poll question. I think we'll kind of try and dive into why that is a little bit. But basically, as I read them, the PLPs, as their short form is known. are aimed at facilitating early settlement, reducing the number of claims that are commenced, and that's important because these are pre-litigation protocols, so these are things that are going to happen before litigation has commenced. So it's designed to keep actions out of the court system and see if they can be resolved prior to litigation. And then if things can't settle, to narrow those issues so that a more streamlined case is moving ahead. So, what do the PLPs require parties to do? I've got to say that none of this… I honestly was kind of surprised that a lot of this was met with such resistance by people, because when I read through what the PLPs require people to do, I think a lot of it's just best practices. This is identifying issues early, producing documents early, identifying parties early.

[00:26:26] Warren WhiteKnight: Really getting down to brass tacks, quickly. And, you know, so I practice just personal injury. One of the things that's, I'm really looking forward to, so often now, if I'm dealing with an insurer early in a claim, I'll get a response from them when I ask them for their liability documents. Oh, we don't produce those, you'll have to wait till it gets to counsel. And that's just not going to fly anymore. They may need to appoint counsel right away, and that'll be their right, but they're going to have to produce all those documents, because they're going to be standard set of documents early on that they have to produce. And I think this is going to be of benefit, and I know I've heard from my friends in the defense bar that the same thing can be said of plaintiff counsel, that sometimes they won't produce their damages documents early to the adjuster. How is the adjuster supposed to do their job if they don't have those documents? So I really read these as being just best practices. However, they're not without a lot of work. Let's be honest about that. It's going to take a lot of work to produce all of these documents early, and it is going to be a more front-loaded process. I had a slide on service. Service under the new proposal, you're going to be allowed to serve things by email and also on council. And so that'll be really helpful if you're doing these PLPs, you've satisfied your production requirements, and you've got counsel already that you're dealing with pre-litigation, the case doesn't settle, you issue your notice of claim, and then you've got counsel. You can just send the claim by email to the counsel you're already dealing with. So, again, trying to reduce costs and delays that are really… I mean, we don't need to call them gamesmanship, but it's not helpful when you're required to spend a thousand bucks on service when you already know who's going to end up receiving it at the end of the day.

[00:28:03] Warren WhiteKnight: So, PLPs are going to apply to all civil claims with some carve-outs. I won't go through all of them. A couple are pretty obvious and common sense. So, PLPs are not going to apply to violence or abuse claims. That's, you know, for the reason of keeping the complainant safe, right? We don't need to be, identifying to the potential defendant where the complainant lives, for example, and producing documents that would otherwise be put the person in danger. There's going to be exception for parties under a disability, and there's going to be these other carve-outs here that we can see. There will be PLPs that are case-type specific, okay? So we've got a couple that apply to my practice, personal injury and medical malpractice, and again, I am guessing, I haven't obviously seen what they're going to, what they're going to address yet, but I think we can, anticipate that they're going to be just best practice. I mean, I know at the start of a claim, I have an actual checklist on the inside of, of the file, which says you need to request, you know, the weather reports, the police report. ER records, the ambulance call report, etc. I mean, these are going to be standard document production procedures that need to be gone through at the beginning. And these, I don't practice in liquidated debt or contractual disputes, but I know my friends in those areas. There's, you know, similar formula for a case that it's going to follow each time.

[00:29:33] Warren WhiteKnight: So, there was some discussion in the early rounds of consultation that PLPs might be so onerous as to require an extension of the limitation period. That's been rejected in the final policy proposal. So, again, remember this is pre-litigation protocol, so if you don't settle the case, you've already done your PLPs, or you should have, you're going to have to file an appendix with your notice of claim, certifying that you've, in fact, done them. And there's gonna be teeth, there's going to be consequences if that is not done. If you get to that initial conference, as Kevin discussed, and Justice Mew is going to discuss in more detail later, and you've not done these. Then orders are going to be, made. I think we've got a poll question now addressing this, because as I said, this is going to be… so if you can go ahead and answer that poll there, we'll see what people feel. So, I do think this was a pretty contentious part of the proposal, so…With respect to PLPs, are your offices basically ready to do this right now? Yes, we could achieve this without massive changes, yes, but we'll need to, you know, leverage AI, hire more people, charge higher fees, whatever, or no, this is just gonna completely upend the system. So I'll be interested to see what people feel here. I, as I think I've telegraphed during my short segment here, really am hopeful about these. I mean, this is largely what we try and do already at our firm. I think it is best practice, which is not to say it's not going to be onerous, but I do think it's going to make cases run more smoothly and hopefully lead to better quicker results. So, we should have those pop up here.

[00:31:08] Warren WhiteKnight: Okay, so we've got… it sounds like… so, most people are pretty optimistic about this, but we're split kind of in thirds, almost, so people are anticipating some changes necessary, and then we have, some people who are, a little bit more pessimistic about the, the outcome of this. Alright, where are we here? Your Honor, everyone's wondering about motions.

[00:31:37] Justice Graeme Mew: Well, as I said at the outset, one of the goals is to significantly reduce the number of formal motions that are required, for many more sort of routine motions, the expectation is, that they will be dealt with at directions conferences, or at case conferences. And that the materials required for, for those motions will be less formal than, are required for, for, other categories of motions. The, the rules set out, the categories of motions where they will presumptively be dealt with more informally at case conferences, and those motions where…The, the presumption is that they will remain, determined on the basis of motion records and fact, and similar to, similar to, to, to, to what exists at the, at the present time.

[00:32:42] Justice Graeme Mew: The… the discovery reforms are, go… what goes hand-in-hand with the proposed discovery reforms is a far more attenuated process for dealing with, undertakings and refusals, motions, which, as you know, chew up a fair amount of court time at the moment. Motions to, get off the record, for lawyers to get off the record, will be, significantly, streamlined. And, effectively, a notice to get off the record will become effective without the need for any sort of formal motion. There are some exceptions, Wag motions, will be… will, again, the idea is that they will, to all intents and purposes, be eliminated and, and replaced by essentially a procedure. So, the, the, the hope and expectation is that, many, many motions will be dealt with, more informally, than, than at the present time.

[00:34:01] Warren WhiteKnight: Thank you, Your Honor. Before we move on to the conferences, which is where I think you're going to let us know a lot of these motions are going to be dealt with, we had 3 very smart people ask basically the same question about the PLPs, which is, someone walks in the door, you know, the day before the limitation period expires, how are you going to do the PLPs if you're retained? And my reading, so the policy proposal does not address this specific scenario. But my reading of them is basically you're gonna, you're gonna issue that notice of claim. With your appendix, you're gonna let them know that, no, you've not done the PLPs, and there's gonna be, you know, a section, just like in the, confirmation form before a pretrial right now, where you can say, yes, I've met the timelines for expert reports, or no, I haven't, and here's why. There's gonna be an explanation box there, and you're gonna do your best, lawyerly duty to, to fill it in. But you'll issue the claim, that's the really important thing, issue the claim, yeah, yeah. I don't think it'll prevent you from being retained, which I think is what some people may be understandably worried about. So, Your Honor, let's see if we can talk about conferences a bit.

[00:35:06] Justice Graeme Mew: Alright, so, there are a bunch of different types of conferences, and, when they occur and what type of conferences they are will depend on the track. That, that, that your particular case is on. So that, directions conferences, the timing and function will depend on, on the track and, and other triggers. On the application track, there will be a directions conference following the service of the claim, and the purpose of the directions conference will be to determine the procedures to set the date for the summary hearing and to give on any other appropriate directions. And as Warren's already mentioned, the application track will largely deal with matters that are currently the subject of applications under the existing rules.

[00:36:01] Justice Graeme Mew: The summary track, directions conferences will occur. Either to deal with relief sought by a defendant, or a non-party added as a defendant, or a third party. So, for instance, where there is an issue raised, and somebody was asking about Rule 21 motions, but, if an issue is raised about jurisdiction, for instance. capacity, venue, stays of proceedings, or, you know, lack of a cause, a viable cause of action, or a, or a request for consolidation of proceedings. Those…those sorts of requests, would trigger a directions conference. In the absence of that sort of, issue arising, then a directions conference would occur following the close of pleadings to set the summary hearing date and to give directions and determine any deviations from the standard timetables that are contemplated.

[00:37:06] Justice Graeme Mew: On the trial track, directions conferences will occur, again, similar to the summary track, to deal with any of those issues, like capacity, venue stays, and the like. And, otherwise, if and when necessary to deal with issues that arise before the one-year scheduling conference, which we'll get to in a moment. And if there is a directions, conference, within 60 days of the one-year scheduling conference, then the Directions Conference will deal with the things that would otherwise be dealt with at the one-year scheduling conference. So, what happens there? Well, the purpose of that event is to verify that evidence has been exchanged and that there's no outstanding interlocutory relief being requested. To set a timetable, which will deal with, the things indicated on the slides, expert reports, and expert conferences. We'll be talking about those in a minute. Mediation, if not already done, and a component, one important component of these proposals is that the current mandatory mediation scheme will be extended province-wide, but parties will be given a large degree of flexibility as to when, during the course of the case, the mediation is done. Binding judicial dispute resolution, if requested, and if consented to, that's a sort of innovative, any of you who've done, MedArb, in the sort of private dispute resolution space will be familiar with that sort of concept, but it's an option that has been suggested should be available. The trial management conference date.

[00:39:01] Justice Graeme Mew: One of the other elements of these proposals is that the pretrials as we know them, which have both a trial management and a settlement component, will be replaced with a trial management conference date that deal exclusively with, trial and management-related issues. And then timetabling the delivery of sworn witness statements, for those witnesses for whom, only will-say statements have been done, to date. That's, again, getting into the weeds a little bit of, of exactly what, What the upfront, evidence model will look like, but, there's a distinction between sworn witness statements and will-says. And then, setting the trial dates, which should be within 12 months of the one-year scheduling conference, once the transition period is over. And optionally, in the discretion of the, of the judge conducting the one-year scheduling conference, scheduling a judicial settlement conference, which would resemble the sort of dispute resolution element of the, current pretrial. Trial management conferences, as, I just indicated, replace the pre-trials. Those will occur. 4 to 5 weeks before the trial. At the moment, they're, presumptively, what, 90 to 120 days before the trial.

[00:40:33] Justice Graeme Mew: Optimally, the assigned trial judge will preside. That's going to be more of a challenge in some regions than it is in others because of the, because of the circuiting nature of judges, but that's obviously something we're going to have to address. And as I've said, the court retains jurisdiction to order separate judicial settlement conferences where the presiding judge thinks that would help. Issues that will be, specifically considered, how opening statements will be delivered, whether they'll be submitted in writing, that would be obviously for, judge-alone trials, orally for, jury trials. And again, that's the, the sort of, in terms of the in-writing expectation, that's the default position, but, direction could be made otherwise. Important, sort of codifications of things that a lot of people do already. the use of, chronologies, agreed chronologies, which will essentially replace requests to admit. They're to be, there to be exchanged, before the, the trial management conference.

[00:41:56] Justice Graeme Mew: Let's get to the next slide. filing a joint book of documents, and the presumption will be that those documents submitted are authentic and true. There'll be, effectively two Potentially two joint books of documents, those in which those conditions are accepted, that the documents submitted are authentic and true, and then a second joint book of documents in which there are challenges to the authenticity and or truth of the documents. But the idea is that the documents whether they're, use and, and, Provenance is, is agreed upon or not, that all of the documents will be in joint books filed prior to the trial. If the plaintiff is self-represented, then the index would be, prepared, by the opposing party. Otherwise it's the plaintiff's job to, to do that. Filing an agreed, glossary of definitions, and again, this is, this is all best practice. A lot of cases, this happens, particularly in cases dealing with, you know, construction or medical negligence, or, or where there is, where there are a lot of technical terms. Trial Management Conference will also consider the use of technology, the trial length. Whether or not there should be, what's called chess clocks, limits on the, the length of, examinations and cross-examinations, and then how witness and expert evidence, will be, delivered at the trial.

[00:43:44] Warren WhiteKnight: With your indulgence, Your Honor, I'm going to try and speed us along. We're a little bit behind. You mentioned that there's no more, motions to get off the record, basically. So you're simply going to file a notice of withdrawal of counsel. The only exception is this, at the bottom, that if there's a motion, or within 30 days, or a trial within 120 days.

[00:44:05] Justice Graeme Mew: Still have to deal with situations where the, where the party, for whom the lawyer was acting as a corporation, for instance, if they haven't gone and got themselves new counsel.

[00:44:15] Warren WhiteKnight: Right, yes. So there'll be some limited exceptions, but in keeping with the rest of the overhaul, it's streamlining the process. Kevin, can you take us through some of the new rules on discovery? I think this is of great importance to people.

[00:44:30] Kevin Cooke: Happy to. Yes, the… I wouldn't be saying anything controversial if I didn't highlight that one of the biggest concerns that emanated from the consultation process of Phase 2 was the proposed elimination of examinations for discovery. So there's a quote here from the report, and I'd simply say that under the current system, there's this, perception that it's more of a mud-at-the- we'll call a mud-at-the-wall approach, to pleadings, and the rule changes are aimed at looking to remove the incentive to, plead broadly, and will focus actions from the outset. So, in terms of the discovery process in the application track. And the summary tracks. There'd be no obligation to produce… sorry, there would be an obligation to produce, initial documentation and disclosure, and this would be all non-publicly available documents in your client's possession that are referred to in the pleadings. There'd also be an obligation to produce, eventually, reliance documents, that's documents that you intend to rely upon at trial. Sworn witness statements, as well as expert reports.

[00:45:34] Kevin Cooke: In terms of the, and I think it's just the next slide, yeah. Issues that are specific to the discovery and summary track, there is an exchange of further documentation that can be requested under this track, as well as an option for out-of-court cross-examinations that can be requested. And those would both be audio and video recorded. There are certain situations where additional witness statements can be produced as well, but it would be under the circumstances that those additional witness statements could not delay the trial or hearing. And they would be on consent with the timetable, and there's also the possibility that it will require leave from the court.

[00:46:15] Kevin Cooke: In terms of discovery in the trial track, there's still an obligation, that same obligation for, claim-based disclosure, that is the documents referenced in the pleadings. but also reliance documents, witness statements, and will-say statements. And one issue that certainly arose in the consultation process was the issue of obtaining will-say statements from physicians, for example, in injury claims. So, this was addressed in the final report, that clinical notes will suffice for will-say statements from those types of medical professionals. Now, there will be what we call non-oral discovery. That's not scheduled anymore. It's what we're going to be calling focused examinations. This is, a proposal of dates would be exchanged amongst counsel, and if those dates can't be agreed upon, then a scheduling conference will be scheduled with a judge to make sure that those focused examinations can take place. There can be supplemental documentation requested during this focused documentation questioning.

[00:47:24] Kevin Cooke: In terms of what those focus examinations will look like, again, I misspoke earlier, it's not 90 seconds, it's 90 minutes per party. In theory, this will be many of the questions that would be addressed in regular examinations for discovery under the current system. Those would be addressed through many of the documents that are already exchanged in advance of this focus questioning. So, the idea here being that 90 minutes should suffice. There can be more time added, as more parties become involved in litigation. We're thinking third and fourth party claims in this situation.

[00:47:57] Kevin Cooke: Post-focused questioning, a discovery request chart can be generate… will be generated by the examining party, and that has to be exchanged within 15 days. That might look like what we traditionally call an undertaking and refusals chart. There's no delay in responding to this chart. All undertakings Should be responded to within 30 days of that examination, so it's incumbent on all parties to respond quickly and efficiently, to these questions following the focus questioning. I will flag as well that the, the final report does provide an option for written interrogatories in lieu of the focus questioning. There's some, limits on that. There's 50 question limits, and the 30-day timeline for a response as well.

[00:48:46] Warren WhiteKnight: So, I think, you know, we've already addressed that motions culture is going to be changed, and whether you agree that there's a motions culture or not, we're all, aware of, you know, dealing with refusals, facing ones we don't like, giving them, probably more often, if we're being honest, than is always proper. And so there's going to be very limited categories of cases in which refusals are going to be… possible under the new rules. So, all questions must be answered unless privilege…privilege applies, the question is scandalous, or the question is so misleading as to not be appropriate. This is a very high bar. And it's… so I think, if I'm being honest, that I think I'm gonna have to let my clients ask or answer a fair number of questions that I wouldn't have in other circumstances. However, bearing in mind that there's gonna be a 90-minute limit.

[00:49:37] Warren WhiteKnight: If defense counsel or opposing counsel wants to spend their time asking questions that I don't think are relevant, and I might have previously refused, well, that's their 90 minutes to spend, so I don't actually have a ton of concern given the time limits. There will be limited circumstances in which refusing undertakings can be done, including where, you know, the classic fishing expedition, where the cost or time involved in fulfilling a request would be disproportionate to the importance of the information sought. Obviously, all of you are immediately thinking, well, what the heck kind of a circumstance is that? I'm going to disagree on that. We'll deal with that in the next slide. The bane of the junior lawyer, there is no more taking things under advisement. I, hid behind that many times in my first few years, because I wanted to go back and ask my mentor, what do I do about this request? So, you're gonna have to know your stuff, junior lawyers, going forward. No more taking things under advisement.

[00:50:33] Warren WhiteKnight: So, if there is a dispute about what happens at discovery, there's gonna be two options. One is seek determination of the issue, from the court, and it's gonna be done in writing, Or just leave the issue, and then ask for an adverse inference, okay? So it's going to be much cleaner. If you've got a meaningful issue and you need that answer, seek a determination from the court. Otherwise, just ask for an adverse inference. I think it's a much cleaner system, I'm a big fan of this. And there's going to be presumptive costs, we're not going to be dealing with arguments about this so much. The more successful party, so if there's 10 issues in dispute on a written motion, or a written dispute. And one party wins 6 out of the 10. They're the more successful party, they're gonna get a base fee of $4,000, and then there's $500 per disputed question, or $1,000 per item, per undertaking.

[00:51:28] Warren WhiteKnight: We're going to switch gears here and talk about, experts. I did, get an answer from the host that… I know some people probably need to leave right at 2. We are not going to be done by 2, so we will carry on for another couple minutes. Justice Mew has to go back to court at 10 after 2, but we'll have him until then. So those who want to stick around past the official 1 hour and continue with the presentation, our apologies for going so slowly, but it is just a voluminous amount of information. Okay, so we've got… The proposals regarding expert evidence. So the goals of the amendments are, as you see them here, enhance clarity, reduce costs, streamline presentation of evidence, deal with the issue of bias. Some of the way this is going to be done is through the codification of leading case law. So Westerhoff and Gee, this is the case everyone knows dealing with the classification of experts, what type are they, and what rules apply to them in terms of swearing their duty to the court, what type of evidence they're allowed to give, etc. So there's going to be a codification of Westerhoff into the rules. Similarly, White & Burgess, the leading case on the admissibility, it's going to be codified. I think this is a great idea. Again, these are just issues you have to grapple with anyway. If you get to trial, and it is an absolute waste of court resources to deal with these issues. at trial, in pretrial or intrial motions, as opposed to just getting your ducks in a row before trial and making sure you've got the right people giving the right opinions in the right way. So, I think it's a great, great extension of best practice. So, joint experts. This was very contentious. I don't like it much, but it's coming, and it's going to be quite interesting. So, the three categories of cases where presumptively joint experts are going to be used is

[00:53:13] Warren WhiteKnight: Quantification of past and future income loss for personal injury, quantification of care costs and personal injury, and then real estate and property valuations, where the property consists primarily of developed land. And this is a classic NIMBY situation, where when I look at Category 3, where I don't practice real estate, I think that's obvious. Of course they should have joint experts for these cases, and I'm sure my friends who practice in that area think it's a catastrophic idea. So, at any rate, it will be very interesting, to see what happens with these. We're going to go through the process on the next slide, and for other cases that aren't one of these three categories of expertise, you're going to still have to address at a conference in front of a judge whether or not a joint expert should be retained. The process, as you see it here, so the parties, when the joint expert is retained, are going to split the fee the expert is going to be jointly selected. If they can't agree, which I think is going to be a bit of a circus sometimes, the judiciary is going to get involved in some fashion. The parties may jointly instruct the expert. Again, I'm picturing a circus, or they may independently instruct the expert, but all communication needs to be copied on opposing counsel, so it's definitely a big change from the current landscape, which is governed by Moore and Getahund, the Ontario Court of Appeal case, which basically says your conversations with your experts are privileged. And absent any inference that you've done anything improper with your expert, none of that is going to be, you know, see the light of day. So, it's definitely going to change the landscape. Number four, I think, is a foreshadowing of the fact that the authors of the final policy proposal also agree that there's going to be some, difficulties with this, in that everybody can cross-examine the joint expert.

[00:55:04] Warren WhiteKnight: It will be very interesting to see how this changes the landscape of cases. Let's see what you guys think. We got a poll question here.So, if you don't practice personal injury, my apologies, you could select number 3, but if you have an opinion, so yes, I think joint experts are basically going to be fine, they just oper… operate on the assumptions fed to them by counsel anyway, which, for those of you who don't practice personal injury, is basically true. When you ask an accountant to calculate an economic loss for someone, they are not a vocational expert, they are not an orthopedic surgeon, you do need to tell them What are the assumptions? How long would the person have worked? Would they have gotten raises? You give them the employment files, they figure it out on their own, what their opinion is. Or you can say, no, I think the reports are going to be cumbersome, they're going to have to have too many alternative scenarios, the expert's going to lack credibility, they're going to be…You know, giving one opinion here and the other one over there, and they're gonna directly, contradict. So let's see what, people think.

[00:56:02] Warren WhiteKnight: Okay, so for those who have been experience in this area of law, we are split right down the middle. So it's basically a 50-50 result. So, yeah, at any rate, it's gonna be a change in the landscape. We will see what happens with this. Experts, I've got a couple more slides here. So this, I think could be quite interesting. So there's a proposed two-strike rule, which is similar, I think, in some ways. There's proposed that there's gonna be a central registry of decisions in which an expert has been found to have breached one of their duties to the court.

[00:56:43] Warren WhiteKnight: And if an expert has, you know, two black marks put on their record having violated their duties to the court twice. They're no longer going to be able to be an expert. It raises for me a question of due process. Is, are experts going to be able to appeal these decisions? You know, this is… there are entire, industries built out there, as you're all aware, that are nothing but expert, warehouses. They do nothing but provide these people, and this could be very calamitous for individuals and companies, so I think it'll be interesting, but nobody can disagree that it is important that we not have experts giving opinions in court when they are hired guns or are biased. So, the underlying, purpose of this, I think, is a good one. It'll just be, if this comes into force, it's going to be extremely interesting to see what happens.

[00:57:33] Warren WhiteKnight: The timelines, again, I think these are just best practices. I'm very, kind of heartened to see these in the rules. We had some meaningful amendments two-ish years ago about…Strengthening the teeth, in the rules, not allowing in late expert reports. You know, council want to keep their powder dry and submit reports late, or save their disbursement money for negotiation money, whatever the process is, that's not going to be allowed. These are even more aggressive, so 180 days prior to a trial management conference or a court-ordered mediation. The first report's gonna have to be done, and then you've got 60 and 30 days, for the reply reports, and there are going to be limited categories for leave. Hot tubbing, so different than, but similar to, the joint expert idea. So this is going to presumptively occur in trial track cases, and interestingly, counsel are not going to be, present.

[00:58:33] Warren WhiteKnight: So, the idea is really to just get the experts together and have them, you know, bang their heads together and figure out what they agree on and what they don't agree on. A transcriptionist is going to be present. The report is going to be generated by the experts, and it will be admissible at trial. I do see this being helpful to streamline the issues, as long as we can, you know, cut some of the jargon out, because that's why we hire experts in the first place, is to simplify complicated issues. Your Honor, can you talk to us about, delay? Well, you're muted, Your Honor.

[00:59:16] Justice Graeme Mew: There you go, I'm forever telling Council you're muted, and now here I am. I think one of the fundamental… well, the fundamental difference is that, these proposals take responsibility for management of take responsibility for management of cases, or move them towards the court, away from leaving it entirely to counsel to choose the pace at which litigation proceeds.  And looking at a number of the comments that have been made in the chat, from a sort of access to justice point of view, the old adage is, you know, justice delayed is justice denied. The, the, the objective is to, to, to, to move cases through the system more efficiently. One of the objectives, by, by, by requiring. More to be done earlier in the litigation and bringing mediation in, is to, is to encourage settlement earlier in the process than takes place at the moment. One of the means by which the court will move cases along, if these proposals are implemented, is by the use of fixed hearing dates, with, with only exceptional circumstances warranting adjournments, by, by, by having real teeth and consequences for, non-compliance By, employing, effectively penalties. For, breach of interim deadlines, and the proposals, as you'll see from the slide, to have effectively fixed penalties. For, for delays, depending on the track, that has been, has been chosen and, who those sort of penalties get paid to. If I had one, one regret, it's that the court can't recoup, some of the cost of, of delays, because that's always been a frustration. When I've been asked to award costs, sometimes I wish I could, award the court the costs that are being wasted as a result of parties. Not using our resources efficiently, but that's not there. Costs, I don't think we won't spend a lot of time on this. Costs, we could have a whole session on costs alone, but the idea is to, to, to simplify, costs, to, Make clear what partial indemnity costs are, to effectively do away with the concept of substantial indemnity costs, so that there'll be two, two costs, tracks, a partial indemnity and full indemnity. I don't think the idea is to go back to, the, the, the grid that, fell into disrepute in the, in the 90s, and, but, to, to have. some sort of, notion of notional rates. And those of you who practice, particularly in the appellate courts, will know that we often, we always encourage parties to, to try and agree what cost should be win, lose, or draw, rather than leave it to the court to decide. There will be, limited presumed categories of instances where full indemnity is presumed.

[01:02:41] Justice Graeme Mew: And then cases, also, guidelines for departing from presumptive rules, but as always, costs ultimately will be in the discretion, of the, of the judge, and as you'll see for motions and summary hearings. Ideally, parties will agree in advance. If they don't agree, then cost outlines will be required, and if there isn't a cost, outline, you don't get to make cost submissions. Which sort of happens now the front of some judges.

[01:03:17] Warren WhiteKnight: before you leave, in a few minutes, we've got… and we are close to finishing here, I think, but the… we had a good question come in. It says, the current rules already have many deadlines. The new rules have even more deadlines. The issue is that the court typically grants indulgences. What will change in court culture?

[01:03:37] Justice Graeme Mew: Well, certainly the intention, as I understand it, of the proposals is to, is to put more teeth in the consequences of non-compliance, and that while you've always got to have sufficient flexibility to allow for the exceptional circumstance, the expectation will be far…Higher that the, that deadlines will be complied with, with automatic consequences if there aren't, if they aren't, absent exceptional circumstances.

[01:04:15] Warren WhiteKnight: Thank you, Your Honor. I think we're almost at the end of the deck here. There's a little more on costs here.

[01:04:25] Justice Graeme Mew: Yeah, so, trials… of course, you don't know how long a trial's going to take, but, the expectation will be that 20 days prior to the trial, that parties will file their costs outlining the costs incurred up to that point. And then, after, judgment, you can, you can update that. And then, for conferences, many issues that would formally have been dealt with at motions will be dealt with at, conferences, and, again. And this will become sort of routine. The parties will just automatically specify their claim for costs in their materials, and the cost decisions will be made at the… at the conference.

[01:05:13] Warren WhiteKnight: Thank you, Your Honor. And there we are. We did make it to our last slide, only 5 minutes over time, and 5 minutes to spare. So, for everybody who was, asking, that QR code there has a direct link to these materials.  The, Canadian Lawyer website is gonna have a permanent recording of this presentation, if people want to watch it later or forward it to others, it'll be on the Canadian Lawyer website. And then you've got contact information for myself and Kevin there, if you want to email us directly, either for a copy of the presentation, which would be best directed to me. Or with a question, you can send that to us. We've got, his honor not to stress your time, Your Honor, but we have him for 4 minutes. Do people have…

[01:05:57] Justice Graeme Mew: No, well, I can… yeah, I've got 4 minutes. Just a comment, I get a lot of questions about… Some of these changes, and this is not to express an opinion on whether what's been proposed is good or otherwise. These are proposals, they haven't yet been implemented. We'll see whether they are implemented. I think everyone, the universal response to the consultation, as I understand it, was that the status quo is not good enough, that, that we need to do better, with, with civil justice. I know a lot of people are nervous, and that was reflected in the feedback on the upfront evidence model and the…as it was originally, propounded, the complete abolition of examinations for discovery. Now, that's been modified. Whatever ends up being the regime, I think, and this was the experience in other jurisdictions, that you change the metrics by which you organize your cases and settle your cases. It's certainly not the intention of these proposals, as I understand it, that litigation will cost more overall.

[01:07:20] Justice Graeme Mew: One of the goals is to, get cases through the system quicker. Another is to encourage earlier settlement. On the discovery thing in particular, when I go back to England, which, as those of you… most of you probably guess is where I'm from originally, lawyers there are bemused by the idea that we have something called an examination for discovery, or depositions, as the Americans call them, because they don't have that in the rest of the common law world. And my colleagues here are equally bemused that you can actually run a case without, without having that process. And I don't think, you know, there's a right or wrong answer to either, but to the extent that changes, are required, people will adapt, and I'm, as I said earlier, cautiously optimistic that, these reforms, Whether they're… all of them are implemented, or some of them are implemented, Give us a real opportunity to shake up the civil justice System, and hopefully, provide better access to justice, by more efficient case management and litigation. So there you go, their end of the lesson.

[01:08:35] Warren WhiteKnight: Thank you, Your Honor. I have a number of people asking why the QR code isn't working, and then Alicia Bayes has quite rightly noted, we may be crashing your website, Warren. So I think, you know, one of the issues these days is you have to have such tight IT walls, because all the Russian trolls are trying to hack us at all times, and so now we've given this QR code to 672 people, and so my website is rejected. you all. Try the QR code, again. If it does not work, email me directly. My inbox will not, will not bounce you out, and I will send you the presentation personally. So, if… unless we have any closing comments, which I would hesitate to go after Justice Mew, Kevin, but at your own peril, thank… any… anything, Kevin?

[01:09:24] Kevin Cooke: No, I just… I'm worried what you've signed up for by inviting people to email you for the slides, but good preview.

[01:09:29] Warren WhiteKnight: I have the rest of my afternoon blocked off for nothing but responding to emails. So, thank you again to Justice Mew. I know you have court this morning, court right when you leave us, and you have another volunteer gig this evening, which we really are so grateful for your expertise, and Kevin, thank you for taking the time out of your busy schedule to be here. With us, and thank you for everyone who attended. The engagement on the Q&A was really, really good as well. Sorry if we didn't get to your question. Feel free to reach out to me, privately.

[01:10:01] Mallory Hendry: And I'll just jump in here and echo Warren on behalf of Canadian Lawyer. We want to thank you all for participating today, our experts for sharing their expertise, and everyone in the audience. So, keep an eye out for some more insightful Canadian Lawyer webinars to come, and everyone enjoy the rest of your day. Thank you so much.

[01:10:18] Kevin Cooke: Thank you, all.

[01:10:] Warren WhiteKnight: Thanks, everyone.