Access to Justice

The Ontario government appears committed to reforming the civil justice system, albeit in a minor way, in order to increase access to justice for the people of Ontario. The government's proposed reforms are also designed to make the civil court system easier to use and to resolve disputes quicker.

For example, the province is increasing the monetary limit of the Small Claims Court from $10,000.00 to $25,000.00 effective January 1, 2010. This change, while needed, is not bold enough. The monetary jurisdiction of Small Claims Court should be at least $50,000.00. Very few cases involving lawyers can resolved through litigation for legal fees that would less than such an increased limit.

In addition, the reforms promise 25 significant changes to Ontario's Rules of Civil Procedure, including raising the monetary limit for Simplified Procedure cases from $50,000.00 to $100,000.00 effective January 1, 2010, reducing pretrial costs and delays and by limiting examinations for discovery to one day unless the parties or the court decide that more time is needed.

The Civil courts will now also be subject to the general principle of proportionality. This means that the time and expense devoted to any case must reflect the amount in dispute and the importance of the issues at stake in the proceeding.

These reforms are a response to the Osborne Report.

In June of 2006, the Attorney General for Ontario asked the Honourable Mr. Justice Coulter A. Osborne, a former judge of the Ontario Superior Court of Justice, to review potential areas of reform and make recommendations in order to make the civil justice system more accessible and affordable. Justice Osborne presented his report in November of 2007.

The report contains some 81 findings and recommendations relating to such matters as judicial resources, small claims court, simplified procedure, civil juries, the discovery process, case management and trial scheduling. It also reviewed such matters as the need for civility and ethical behaviour in the legal profession and the use of technology in the civil justice system.

Highlights of the Osborne Report are:

unrepresented litigants - improving information resources for unrepresented civil litigants; encouraging lawyers to commit to more legal services on a pro bono basis; creating a self-help centre at Toronto's Superior Court of Justice to be staffed by a full-time facilitator and a part-time lawyer; revisiting the review for civil legal aid in the province;

discovery - amending the Rules of Civil Procedure to provide that each party have up to a maximum of one day (7 hours) to examine parties adverse in interest; encouraging parties to voluntarily answer questions at an examination for discovery that are objected to on the basis of relevance and to encourage the court to consider making appropriate costs awards on refusals motions; encouraging parties to consider, and to the extent reasonable, apply the E-Discovery guidelines and The Sedona Canada Principles and in particular the requirement to meet and confirm regarding identification, preservation and production of electronically stored information;

litigation management - ordering that a case be subject to case management if appropriate; allowing telephone or in-person case conferences or a simplified process for motions to be made in writing with or without affidavits;

motion and trial scheduling - eliminating the requirement of personal attendance at assignment court and permitting trial dates to be set by use of a form jointly submitted by the parties; the use of teleconference hearings or internet for fixing tentative trial dates; the use of 9:00 a.m. or 9:30 a.m. chamber hearings to deal with ex parte scheduling, consent or other motions that need less than 10 minutes; the use of more specific time slots for the hearing of motions, i.e. morning or afternoon motions to reduce wasted waiting time in court; greater use of teleconferencing for short motions.

The Report's findings and recommendations can be found on-line on the website of the Ontario Ministry of the Attorney General.

Regards,

Blair