Lawyers say it could prove challenging in the context of commercial disputes
Since they were first published in April, proposed reforms to Ontario’s Rules of Civil Procedure have drawn concerns from lawyers across the bar. For business litigators, one key concern is how the proposed rules would truncate litigation timelines so that disputes have to be resolved within two years – a change that could substantially shift how, where, and even if parties decide to pursue litigation.
“I do think it’s a little unrealistic, particularly in the commercial world, where you have potentially hundreds of witnesses, thousands of documents,” says Craig Lockwood, a partner at Osler Hoskin & Harcourt LLP, of the two-year timeline.
Craig Lockwood
“The proof will be in the pudding, in the sense that we’ll have to see how it plays out,” Lockwood adds. “But it strikes me that you’re going to have to cut corners in order to get that two-year window to be functional across the board … it doesn’t really take into account the business realities.”
Brian Kolenda, a partner at Lenczner Slaght LLP, says that while such a timeline is not unusual for certain types of complex, high-stakes business disputes – like those on the commercial list – many others “would ordinarily take seven years to resolve.”
Brian Kolenda
“The cost and timing of that process is now going to be compressed,” Kolenda says. He adds that that will “require clients to think very carefully about whether they’re prepared to incur those costs or approach differently the question of potential resolution of a case.”
The proposed reforms were unveiled in a 122-page report by the Civil Rules Review Working Group, a committee launched by Ontario Attorney General Doug Downey and Ontario Superior Court of Justice Chief Justice Geoffrey Morawetz in 2024 to improve the provincial justice system. The CRR Working Group is distinct from the Civil Rules Committee, which has historically been tasked with reviewing adjustments to the Rules of Civil Procedure.
The proposed changes are sweeping, with suggestions like eliminating oral examinations, changing document production obligations, and introducing new pre-litigation protocols. In the spring, several lawyers’ organizations wrote to Downey to express apprehension about the proposed rules. One of those organizations, the Federation of Ontario Law Associations, raised concerns that most of the CRR Working Group’s members served “big businesses and institutions” and therefore failed to take into account the needs of other types of lawyers, like those who practised personal injury and insurance law.
Ironically, Lockwood, a member of Osler’s litigation group, whose clients include major companies, suggests that the court’s efforts to streamline proceedings could work better for insurance matters than commercial disputes – particularly complex cases involving multiple parties and issues arising over decades of events.
Lockwood says he suspects that one of the most controversial proposals – eliminating oral examinations during discovery – would be key to cutting the corners necessary for meeting the two-year dispute timeline. While oral examinations typically occur outside the courtroom, Lockwood says, they can be lengthy; removing them from the equation could significantly shorten the dispute process.
However, Lockwood says this prospect is troubling in the context of commercial litigation. For example, he argues that fraud cases can’t be meaningfully litigated without discovery.
“You need an opportunity to test the other side’s evidence,” he says. “You need to explore the depths of what they produced, what they haven’t produced. You need to basically test the veracity of their story, and oral discovery is really the only opportunity to do that.”
Another time-saving measure that could pose problems is the proposal to resolve procedural issues through conferences rather than motions. In its report, the CRR Working Group noted that Ontario’s current “motions culture” effectively allowed litigants “to become entangled in endless battles over the process that will govern how the dispute will be litigated.” The working group said this norm was costly and often introduced substantial delays.
“My suspicion is there’s going to be a very high bar to get motions heard, because [the courts are] going to view them as an impediment to expedient justice,” Lockwood says.
“That seems fine in the abstract, but motions practice is fundamental to what a commercial litigator does, in the sense that motions are oftentimes more important than the ultimate trial because they narrow the issues, they refine the issues, they shape the litigation,” he adds. “If you remove those sorts of gatekeeping metrics from the equation, it’s going to make for a difficult process.”
According to Kolenda, the pressure of having to resolve a dispute within two years is exacerbated by other changes proposed by the CRR Working Group, like requiring parties to produce documents much earlier in the litigation process than they currently do. That could change how litigants approach disputes, Kolenda says: plaintiffs would likely have to do much more work before they even file a claim, to meet the tight deadlines, while defendants would be smart to start strategizing how to defend themselves if they believe a dispute could become litigious.
“Because of the demands of this very quick process with very tight timelines, it will require all sides to be ready to litigate more quickly,” Kolenda says. “In some cases, that will mean that parties will have a better understanding of the strengths and weaknesses of their case early on, and … will want to be prepared to settle quickly.”
In other cases, Kolenda foresees parties being more eager to go to trial because all the extra work they did early in the process affirmed their belief that they have a strong case.
He adds that the proposed rules likely won’t have a uniform impact on all commercial matters. But because a compressed litigation timeline with significant upfront obligations will cost a lot of money within a short period, many businesses will likely “be more motivated to try to resolve disputes consensually before engaging in the litigation process,” Kolenda says. “I think clients will have to think long and hard before they just issue a claim.”
While neither Kolenda nor Lockwood is convinced that these changes will push more parties to arbitration, Lockwood predicts they will encourage certain litigants involved in class actions to leave Ontario altogether.
“Historically, Ontario has been a very popular jurisdiction for class action by virtue of our bench and our jurisprudence,” Lockwood says. “If litigants feel that they’re not going to get the same rights in Ontario that they otherwise would – if they’re going to lose oral discovery rights – they may well choose to litigate in another jurisdiction entirely.
“I do worry a bit about the cooling effect it’s going to have on the development of the common law in Ontario,” he adds. 
Notable proposed Civil Rules reforms
- Addressing the “burden of discovery” by requiring parties to only disclose documents that they intend to rely on as well as all known adverse documents
- Eliminating oral examinations in favour of sworn witness statements
- Requiring parties to reach a final resolution within two years of initiating a case
- Resolving procedural issues through conferences rather than motions
Ontario Civil Rules Review
January 2024: Ontario Attorney General Doug Downey and Chief Justice of the Superior Court of Justice of Ontario Geoffrey Morawetz launch the Civil Rules Review to reform the Rules of Civil Procedure. A working group is appointed to develop reform proposals.
May 2024: The working group publishes its first report identifying the scope of potential reforms.
April 2025: The working group publishes a second, 122-page report with specific reform proposals. The Civil Rules Review Phase 2 Committee’s co-chairs were Justice Cary Boswell of the Ontario Superior Court of Justice and Allison Speigel of Speigel Nichols Fox LLP.
