By Susan McKelvey
As many involved in the legal system are aware, major changes have been proposed to Ontario’s Rules of Civil Procedure in a Phase 2 Consultation Report prepared by the Civil Rules Review (“CRR”) Working Group, which was published in April 2025 (the “Phase 2 Report”).
The CRR has been given an important (albeit challenging) mandate of identifying – through consultation – areas where targeted change to the Rules of Civil Procedure would (1) increase efficiency and access to justice for both represented and unrepresented litigants in Ontario, (2) reduce complexity of the civil justice system, (3) reduce costs for litigants, (4) maximize the effective use of court resources, (5) reduce delay, and/or (6) leverage technical solutions. This mandate was outlined in Terms of Reference identified in January 2024.
One of the proposals of the Phase 2 Report that is unique to personal injury is that it is one of only three areas of claims where a “pre-litigation protocol” has been recommended by the Phase 2 Report.[1] The justification for its selection is that personal injury claims represent the majority of civil cases commenced in the Superior Court of Justice.[2]
For those familiar with personal injury litigation, the pre-litigation protocol for personal injury claims is quite similar to the pre-/early litigation process that already happens in many personal injury cases. For example, the pre-litigation protocol would require parties to exchange letters outlining specific information relevant to the claim, along with relevant documents.[3] However, the proposed timelines and enforcement measures represent a significant change from the “status quo” that the Phase 2 Report deems “not an option”[4] and “unacceptable”.[5]
Specifically, at least 90 days before issuing a court proceeding, the claimant would send a “Letter of Claim” that would include a summary of the facts on which the claim is based and a list of the injuries suffered. Within 21 days of receiving the Letter of Claim, the defendant would need to send a “Letter of Acknowledgement”. This would need to confirm whether it is the correct entity to respond to the claim and provide the identity and contact information of any insurer.
Assuming a Letter of Acknowledgement is sent by the defendant,[6] the claimant would be required to provide the defendant with specific documents within 21 days.[7] The documents listed by the Phase 2 Report are standard documents typically exchanged by parties in personal injury litigation,[8] such as: an OHIP decoded summary; clinical notes and records of a claimant’s family doctor; clinical notes and records of any hospital attended by the claimant; all hospital and ambulance records related to the claimed injury and/or any pre-existing injury or condition; a copy of any police report; the file from the Statutory Accident Benefits provider; tax returns and/or notice of assessment; and any video evidence depicting the circumstances of the incident.
The pre-litigation protocol requires that these documents be requested at least 90 days before a court proceeding is issued, which is the same timeline as the claimant sending the Letter of Claim. If the documents have not been received by the relevant deadline, the claimant would be required to provide these documents “promptly” upon receipt.
In reply, the defendant would be required to send a “Letter of Response” within 30 days of receiving the claimant’s documents. The Letter of Response is supposed to indicate whether the defendant admits liability and the damages being claimed.[9] If not, the reasons for the rejection are supposed to indicate the facts and aspects of the claim being disputed and provide the defendant’s version of events. It is also supposed to indicate whether the defendant intends to advance a counterclaim, crossclaim, or third party claim.
The defendant must also provide specific documents, to the extent they exist, such as: any insurance policy that might afford coverage to the defendant for the claim; statements or will-say statements of any witnesses (subject to privilege); any police report; a summary of any surveillance video evidence on which the defendant intends to rely; video evidence of the circumstances of the incident; and, if the claim concerns winter road maintenance or a slip and fall, documents regarding the design and construction of any relevant section of roadway and documents regarding the system of inspection and maintenance in place for the 48 hours before the incident and 12 hours after.
To the extent these documents are in the possession of third parties, the defendant would be required to request production of any of these documents within the same timeline for sending the Letter of Response, and send them to the claimant “promptly” upon receipt.
Within 18 days of the claimant receiving the Letter of Response, counsel or parties are required to participate in a meeting by phone or videoconference to discuss the possibility of negotiation or alternative dispute resolution. This meeting is intended to take place before any court proceeding is commenced.
In the event a claim is issued, the claimant would be required to file a “Stocktake Report” that would set out information related to the pre-litigation protocol, such as a list of the dates on which the required steps of the protocol were completed.[10]
Compliance with the pre-litigation protocol is supposed to be mandatory, except in limited situations.[11] Where either or both party fails to comply, the parties would be directed to a “Scheduling Conference”, where the proceedings will be stayed while steps are taken to comply with the pre-litigation protocol. In addition, the court would impose a fine that has been “presumptively fixed” at $2,000, [12] payable within 30 days.
This pre-litigation protocol would not amend, vary, or extend any applicable statutory limitation period. As a result, a claimant would be required to initiate their claim without following the protocol’s requirements if adhering to the pre-litigation protocol would result in the expiration of a limitation period. However, the parties could be directed to comply with the pre-litigation protocol after issuance of the claim.
To accommodate the time requirements of the pre-litigation protocol, the Phase 2 Report proposes to recommend to the Attorney General that the basic limitation period for civil actions in Ontario be increased from two to three years, which is the basic limitation period in the UK where pre-litigation protocols have already been widely adopted.[13]
From a defence perspective, one significant concern raised by the pre-litigation protocol is the potential inequality of the proposed timeline. Whereas the claimant would have two (potentially three) years to investigate and build their claim, defendants would be expected to provide a Letter of Response no more than 72 days after they receive the Letter of Claim. In the event a Letter of Claim is a defendant’s first notice of a claim, this may not be adequate time for a defendant (or their insurer) to properly investigate a claim that occurred years prior, in addition to determining potential coverage issues.
These tight timelines for defendants will also lead to earlier retention of counsel by the insurers of defendants. Not only will this lead to an increase in litigation costs for those defendants, it will also likely lead to a decrease in early settlements as insurance adjusters will often attempt to settle matters while handling many of these steps under the current system.
The imposition of fines may be effective at improving compliance with the proposed timelines, thereby limiting delay, but they also raise access to justice issues by adding an additional financial barriers to parties who do not comply with the strict timelines.
Another potential issue is that the Phase 2 Report does not clearly address situations with multiple defendants, which can be common in personal injury actions. For example, it does not specify the interactions between co-defendants during the pre-litigation protocol, nor does it address the situation where one defendant fails to respond, and the impact that could have on the proposed timelines, which can be a common cause of delay in personal injury litigation.
Similarly, it does not address the situation where delay is caused by production of records in the possession of non-parties, such as medical records and police reports (particularly where criminal charges may be ongoing), which is another common cause of delay in personal injury litigation. Presumably these situations would be addressed by the proposed reforms to motions.
One topic that is extensively discussed in the Phase 2 Report, which may have less impact on personal injury litigation than other areas of law, are the proposed reforms to the scope of documentary discovery. In particular, the proposal to move away from the relevance-based standard to a modified reliance-based standard.[14] Under the new proposed standard, parties are required to disclose the documents upon which they intend to rely to prove their case, as well as all known adverse documents in their possession, control or power.
The reason behind this proposed change is the concern that the relevance-based standard has resulted in a “trial by information landslide.”[15] However, personal injury litigation does not tend to involve over-production of emails, which is identified by the Phase 2 Report as “one aspect of the explosion of digital documentation that has profoundly increased the scope and burden of documentary discovery.”[16]
Debates around production in personal injury litigation often pertain to the scope of discovery of medical records. The proposed list of documents the parties are required to exchange as part of the proposed pre-litigation protocol appear consistent with the documents typically expected under the current Rules of Civil Procedure. To the extent parties may seek further documents, it seems likely they would be producible as supplementary disclosure under the new proposed standard, whereby parties can make requests via a “Redfern Schedule”.[17]
The Phase 2 Report states that public consultation is an important step in the CRR and the proposals it puts forward “should not be viewed as a fait accompli.”[18] It notes that there was disagreement within the CRR Working Group, and the proposals submitted for consultation did not always reflect the unanimous views of the members of the CRR Working Group.[19]
The CRR Working Group has invited comments and suggestions on the reforms proposed in the Phase 2 Report. Responses are due by June 16, 2025 and can be sent by email to Jennifer.smart@ontario.ca.[20]
The Law Society of Ontario will also be hosting a complimentary program next week on May 12, 2025, entitled Civil Rules Review: A Deeper Dive into the Proposed Changes. The purpose of the 3.5-hour program is to provide an overview of the proposals in the Report. The program is available both in-person and via live webcast.
[1] Phase 2 Report at pages 21-22. The other two areas that would be required to follow a pre-litigation protocol are debt collection claims and disputes about the validity of a testamentary instrument.
[2] Phase 2 Report at page 22.
[3] Phase 2 Report, Appendix B: Pre-Litigation Protocol – Personal Injury Claims, at pages 112-118.
[4] Phase 2 Report at page 8.
[5] Phase 2 Report at page 2.
[6] If no Letter of Acknowledgement is sent, then the claimant may proceed to issue a claim.
[7] Phase 2 Report at page 115.
[8] The required time period for any pre-incident records is the standard 3-years pre-incident.
[9] Phase 2 Report at pages 115-116.
[10] Phase 2 Report at page 117.
[11] Phase 2 Report at pages 117-118.
[12] Where one party is at fault, the proposed fine is $2,000. Where both parties are equally at fault, each would be fined $1,000. Phase 2 Report at page 118.
[13] Phase 2 Report at page 22.
[14] Phase 2 Report at page 31.
[15] Phase 2 Report at page 30.
[16] Phase 2 Report at page 30.
[17] Phase 2 Report at page 34.
[18] Phase 2 Report at page 5.
[19] Phase 2 Report at page 6.
[20] Phase 2 Report at page 8. Responses provided may be disclosable under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.
By Susan McKelvey
As many involved in the legal system are aware, major changes have been proposed to Ontario’s Rules of Civil Procedure in a Phase 2 Consultation Report prepared by the Civil Rules Review (“CRR”) Working Group, which was published in April 2025 (the “Phase 2 Report”).
The CRR has been given an important (albeit challenging) mandate of identifying – through consultation – areas where targeted change to the Rules of Civil Procedure would (1) increase efficiency and access to justice for both represented and unrepresented litigants in Ontario, (2) reduce complexity of the civil justice system, (3) reduce costs for litigants, (4) maximize the effective use of court resources, (5) reduce delay, and/or (6) leverage technical solutions. This mandate was outlined in Terms of Reference identified in January 2024.
One of the proposals of the Phase 2 Report that is unique to personal injury is that it is one of only three areas of claims where a “pre-litigation protocol” has been recommended by the Phase 2 Report.[1] The justification for its selection is that personal injury claims represent the majority of civil cases commenced in the Superior Court of Justice.[2]
For those familiar with personal injury litigation, the pre-litigation protocol for personal injury claims is quite similar to the pre-/early litigation process that already happens in many personal injury cases. For example, the pre-litigation protocol would require parties to exchange letters outlining specific information relevant to the claim, along with relevant documents.[3] However, the proposed timelines and enforcement measures represent a significant change from the “status quo” that the Phase 2 Report deems “not an option”[4] and “unacceptable”.[5]
Specifically, at least 90 days before issuing a court proceeding, the claimant would send a “Letter of Claim” that would include a summary of the facts on which the claim is based and a list of the injuries suffered. Within 21 days of receiving the Letter of Claim, the defendant would need to send a “Letter of Acknowledgement”. This would need to confirm whether it is the correct entity to respond to the claim and provide the identity and contact information of any insurer.
Assuming a Letter of Acknowledgement is sent by the defendant,[6] the claimant would be required to provide the defendant with specific documents within 21 days.[7] The documents listed by the Phase 2 Report are standard documents typically exchanged by parties in personal injury litigation,[8] such as: an OHIP decoded summary; clinical notes and records of a claimant’s family doctor; clinical notes and records of any hospital attended by the claimant; all hospital and ambulance records related to the claimed injury and/or any pre-existing injury or condition; a copy of any police report; the file from the Statutory Accident Benefits provider; tax returns and/or notice of assessment; and any video evidence depicting the circumstances of the incident.
The pre-litigation protocol requires that these documents be requested at least 90 days before a court proceeding is issued, which is the same timeline as the claimant sending the Letter of Claim. If the documents have not been received by the relevant deadline, the claimant would be required to provide these documents “promptly” upon receipt.
In reply, the defendant would be required to send a “Letter of Response” within 30 days of receiving the claimant’s documents. The Letter of Response is supposed to indicate whether the defendant admits liability and the damages being claimed.[9] If not, the reasons for the rejection are supposed to indicate the facts and aspects of the claim being disputed and provide the defendant’s version of events. It is also supposed to indicate whether the defendant intends to advance a counterclaim, crossclaim, or third party claim.
The defendant must also provide specific documents, to the extent they exist, such as: any insurance policy that might afford coverage to the defendant for the claim; statements or will-say statements of any witnesses (subject to privilege); any police report; a summary of any surveillance video evidence on which the defendant intends to rely; video evidence of the circumstances of the incident; and, if the claim concerns winter road maintenance or a slip and fall, documents regarding the design and construction of any relevant section of roadway and documents regarding the system of inspection and maintenance in place for the 48 hours before the incident and 12 hours after.
To the extent these documents are in the possession of third parties, the defendant would be required to request production of any of these documents within the same timeline for sending the Letter of Response, and send them to the claimant “promptly” upon receipt.
Within 18 days of the claimant receiving the Letter of Response, counsel or parties are required to participate in a meeting by phone or videoconference to discuss the possibility of negotiation or alternative dispute resolution. This meeting is intended to take place before any court proceeding is commenced.
In the event a claim is issued, the claimant would be required to file a “Stocktake Report” that would set out information related to the pre-litigation protocol, such as a list of the dates on which the required steps of the protocol were completed.[10]
Compliance with the pre-litigation protocol is supposed to be mandatory, except in limited situations.[11] Where either or both party fails to comply, the parties would be directed to a “Scheduling Conference”, where the proceedings will be stayed while steps are taken to comply with the pre-litigation protocol. In addition, the court would impose a fine that has been “presumptively fixed” at $2,000, [12] payable within 30 days.
This pre-litigation protocol would not amend, vary, or extend any applicable statutory limitation period. As a result, a claimant would be required to initiate their claim without following the protocol’s requirements if adhering to the pre-litigation protocol would result in the expiration of a limitation period. However, the parties could be directed to comply with the pre-litigation protocol after issuance of the claim.
To accommodate the time requirements of the pre-litigation protocol, the Phase 2 Report proposes to recommend to the Attorney General that the basic limitation period for civil actions in Ontario be increased from two to three years, which is the basic limitation period in the UK where pre-litigation protocols have already been widely adopted.[13]
From a defence perspective, one significant concern raised by the pre-litigation protocol is the potential inequality of the proposed timeline. Whereas the claimant would have two (potentially three) years to investigate and build their claim, defendants would be expected to provide a Letter of Response no more than 72 days after they receive the Letter of Claim. In the event a Letter of Claim is a defendant’s first notice of a claim, this may not be adequate time for a defendant (or their insurer) to properly investigate a claim that occurred years prior, in addition to determining potential coverage issues.
These tight timelines for defendants will also lead to earlier retention of counsel by the insurers of defendants. Not only will this lead to an increase in litigation costs for those defendants, it will also likely lead to a decrease in early settlements as insurance adjusters will often attempt to settle matters while handling many of these steps under the current system.
The imposition of fines may be effective at improving compliance with the proposed timelines, thereby limiting delay, but they also raise access to justice issues by adding an additional financial barriers to parties who do not comply with the strict timelines.
Another potential issue is that the Phase 2 Report does not clearly address situations with multiple defendants, which can be common in personal injury actions. For example, it does not specify the interactions between co-defendants during the pre-litigation protocol, nor does it address the situation where one defendant fails to respond, and the impact that could have on the proposed timelines, which can be a common cause of delay in personal injury litigation.
Similarly, it does not address the situation where delay is caused by production of records in the possession of non-parties, such as medical records and police reports (particularly where criminal charges may be ongoing), which is another common cause of delay in personal injury litigation. Presumably these situations would be addressed by the proposed reforms to motions.
One topic that is extensively discussed in the Phase 2 Report, which may have less impact on personal injury litigation than other areas of law, are the proposed reforms to the scope of documentary discovery. In particular, the proposal to move away from the relevance-based standard to a modified reliance-based standard.[14] Under the new proposed standard, parties are required to disclose the documents upon which they intend to rely to prove their case, as well as all known adverse documents in their possession, control or power.
The reason behind this proposed change is the concern that the relevance-based standard has resulted in a “trial by information landslide.”[15] However, personal injury litigation does not tend to involve over-production of emails, which is identified by the Phase 2 Report as “one aspect of the explosion of digital documentation that has profoundly increased the scope and burden of documentary discovery.”[16]
Debates around production in personal injury litigation often pertain to the scope of discovery of medical records. The proposed list of documents the parties are required to exchange as part of the proposed pre-litigation protocol appear consistent with the documents typically expected under the current Rules of Civil Procedure. To the extent parties may seek further documents, it seems likely they would be producible as supplementary disclosure under the new proposed standard, whereby parties can make requests via a “Redfern Schedule”.[17]
The Phase 2 Report states that public consultation is an important step in the CRR and the proposals it puts forward “should not be viewed as a fait accompli.”[18] It notes that there was disagreement within the CRR Working Group, and the proposals submitted for consultation did not always reflect the unanimous views of the members of the CRR Working Group.[19]
The CRR Working Group has invited comments and suggestions on the reforms proposed in the Phase 2 Report. Responses are due by June 16, 2025 and can be sent by email to Jennifer.smart@ontario.ca.[20]
The Law Society of Ontario will also be hosting a complimentary program next week on May 12, 2025, entitled Civil Rules Review: A Deeper Dive into the Proposed Changes. The purpose of the 3.5-hour program is to provide an overview of the proposals in the Report. The program is available both in-person and via live webcast.
[1] Phase 2 Report at pages 21-22. The other two areas that would be required to follow a pre-litigation protocol are debt collection claims and disputes about the validity of a testamentary instrument.
[2] Phase 2 Report at page 22.
[3] Phase 2 Report, Appendix B: Pre-Litigation Protocol – Personal Injury Claims, at pages 112-118.
[4] Phase 2 Report at page 8.
[5] Phase 2 Report at page 2.
[6] If no Letter of Acknowledgement is sent, then the claimant may proceed to issue a claim.
[7] Phase 2 Report at page 115.
[8] The required time period for any pre-incident records is the standard 3-years pre-incident.
[9] Phase 2 Report at pages 115-116.
[10] Phase 2 Report at page 117.
[11] Phase 2 Report at pages 117-118.
[12] Where one party is at fault, the proposed fine is $2,000. Where both parties are equally at fault, each would be fined $1,000. Phase 2 Report at page 118.
[13] Phase 2 Report at page 22.
[14] Phase 2 Report at page 31.
[15] Phase 2 Report at page 30.
[16] Phase 2 Report at page 30.
[17] Phase 2 Report at page 34.
[18] Phase 2 Report at page 5.
[19] Phase 2 Report at page 6.
[20] Phase 2 Report at page 8. Responses provided may be disclosable under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.