09 Jul Rules of Civil Procedure: Civil Rules Review (“CRR”) – Phase 2 Consultation Paper
The Rules of Civil Procedure are likely to face radical revision in Ontario. On April 1, 2025, the Civil Rules Review (“CRR”) Working Group published its Phase 2 Consultation Paper (the “Paper”), which outlines a new framework proposed for Ontario’s civil procedure. The CRR invited comments on the proposed reforms to be delivered by June 16, 2025 with a stated intention of delivering a final proposal in July 2025 and implementing those changes for 2026.
According to German/American architect Ludwig Mies van der Rohe, “The devil is in the details.” It remains to be seen what changes will actually be made and how those will be implemented in practice. The purpose of this brief paper / blog post is not to review the Phase 2 recommendations in any detail. Much has been written over the 10 weeks between the publication of the Paper and the due date for comments. Rather, this paper / blog post will assume the recommendations will be implemented and focus on how mediation has been affected and how mediation may be used to augment or supplement the recommendations.
New Pre-Litigation Protocol
A new pre-litigation protocol is expected for specific cases, such as personal injury claims, debt collection claims, and testamentary disputes. The protocol aims to encourage communication between parties, documentary exchange, and mediation discussions before court proceedings. The goal is to facilitate information sharing, narrow disputes, encourage early settlement, and emphasize that litigation should be a last resort.
At the present time, mediation is viewed as a destination which culminates in resolution. Under the recommendations, serious consideration should be given to mediation before a statement of claim is issued. This provides the parties with an opportunity to explore resolution before the up-front evidentiary requirements materialize.
The parties could explore very early resolution. If that is not possible, the parties could identify key documents that will allow for settlement discussions to be conducted in earnest.
The parties can discuss whether informal question and answer sessions would materially enhance the prospects for resolution. For example, the defendant’s insurance representative may want to meet and “eyeball” the plaintiff. Counsel for the plaintiff may want to meet and briefly question a property owner or winter maintenance contractor in relation to liability issues in a winter slip and fall case. These sorts of sessions could be conducted as part of the mediation process or under the oversight or guidance of a mediator.
New Pre-Litigation Protocol: Possible Impact On Mediation
In many ways, the mediator could serve as a de facto case manager to help the parties and their lawyers move the matter along to the point where mediation can be attempted with an appropriate exchange of information and documentation and which gives the parties and their lawyers the best prospects to discuss the matter fully and attempt resolution.
Mediation could facilitate and streamline the upfront exchange of evidence once pleadings are completed. At the moment, the recommendations contemplate sworn or affirmed witness statements and documentary disclosure. A mediator may be able to offer some assistance. That said, a mediator cannot make an order to compel production of documents or information, whether sworn, affirmed or simply a “will say” of anticipated evidence.
Mediation could be very helpful in relation to managing the reports of experts. Each party could identify by name or by type the experts they intend to retain for purposes of the litigation. Anticipated expenses could be identified. This will allow the parties and their lawyers an opportunity to evaluate the efficacy and efficiency of spending tens of thousands or hundreds of thousands of dollars on experts as compared to making earnest efforts to resolve the dispute or narrow the issues in dispute to avoid some or all of the expenses of the experts.
Mediation could be helpful in relation to modifying or amending deadlines under the recommendations. Once again, this assumes that the parties and their lawyers are prepared to cooperate to an extent as a mediator cannot make any orders in this regard.
Med-Arb Process
Consideration could be given to the med-arb process. For example, a mediator could be retained to perform this function for all steps in the proceeding up to but excluding the trial or including the trial. In the world of personal injury and insurance, many mediators serve as arbitrators in relation to priority and loss transfer disputes. More mediators may be prepared to serve as an arbitrator to provide the parties with a more tailored solution to the civil litigation process then is currently envisaged under the recommendations.
Mandatory Mediation Throughout The Province of Ontario
The recommendations seem to imply that mandatory mediation will be introduced throughout the Province of Ontario. The recommendations seem to suggest that the timing for the conduct of the mediation will be left to the parties and their lawyers. Early involvement on the part of the mediator can address production issues, the timing for the exchange of reports of experts and the timing for the exchange of mediation memoranda. All of the foregoing is not designed to give the mediator extra time to read the material. Rather, it will allow each party to explain to the other parties the timelines and processes with which their clients are dealing so that all information and evidence is considered and digested in advance of the mediation and so that appropriate settlement authority can be obtained.
Evaluative Mediation
The recommendations indicate consideration of evaluative mediation. This process involves the mediator providing, at some point in the process, an opinion as to the merits of the case and a recommendation for settlement. This opinion would be documented in writing, sealed and filed with the court for the trial judge’s consideration when evaluating trial costs. Much has been said and written about this recommendation. It remains to be seen whether this recommendation will be incorporated into the changes to the Rules of Civil Procedure. If so, it remains to be seen whether mediators will comply with this requirement or the extent to which they will meaningfully comply with this requirement. Ultimately, it does provide one more tool to be added to the mediator’s toolbox and it is one more factor for the parties and their lawyers to consider in relation to the potential costs proceeding to trial.
Conclusion
I anticipate mediation under the recommendations to be more of a process and part of the journey rather than a destination. Early involvement on the part of the mediator can facilitate the need for cooperation amongst the parties and their lawyers which seems to be assumed as a cornerstone for the recommendations to be implemented and effective.
In a perfect world, it would be ideal to test the recommendations utilizing a pilot project. Data and user experiences could be collected and analyzed. There are no indications that this will occur. Assuming that not to be the case, the amendments to the rules of Civil Procedure will be announced and ultimately implemented. Over forty years ago, the new Rules of Civil Procedure came into existence. Many thought it was the beginning of the end; it was not. The recommendations of the CRR, once implemented, will provide an opportunity. Those who are bold and brave will embrace the changes and work creatively within the parameters of the Rules of Civil Procedure to represent the interests of their clients and, at the same time, allow for users of the civil justice system in the Province of Ontario to have accessible and affordable justice.
ABOUT THE AUTHOR
Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating primarily personal injury and insurance cases. He specializes in multi-party and complex mediations.
Vance can be reached at vance@coopermediation.ca or (647) 777-4011.
To schedule a mediation with Vance, visit: https://coopermediation.ca/vances-online-calendar/.