The Rules They Are a-Changin’
Over 60 years ago, in 1964, Bob Dylan wrote a folk song about social, cultural and generational change, warning that those who do not adapt to the new will be left behind. Though Mr. Dylan had loftier and more poetic changes in mind, and may even be a little upset to have a stuffy lawyer reference his work, I can’t help but hear the echo of his sentiment when I reflect on the more sweeping changes that have demanded that we, who practice in law, adapt or be left behind.
It’s been almost a year since I last referred to the old adage about the practice of law being a big ship that’s slow to change course. I maintain the same understanding position that there’s good reason for that saying and there’s good reason for a cautious approach. The law is a foundational institution in society. It must not be trendy. Legal reform must be gradual and multigenerational in outlook. However, not all changes in the way we practice law have had the benefit of deliberate and considered action.
The pandemic changed the way that a generation of lawyers think about their practice and what they expect from the courts. Many litigation lawyers practicing for the better part of a decade have never been in a trial. The practice has become accustomed to a long runway before getting in front of a judge. Amid compounded concerns about access to justice and in the long shadow of pandemic backlogs, the practice of law adapted. Guided by the greater integration of technology and by high praise for alternative dispute resolution, we found ways to help our clients resolve legal disputes.
Implicitly, it appears that much of the profession accepted that the courts are overwhelmed and reserved for the most special of circumstances. Unfortunately, this view of the courts and the legal system more broadly is incongruent with the idealistic understanding, that many of us grew up with, about what the courts offer society.
In school we learned about the three pillars of the Canadian government: legislative, executive, and judicial. In a primal, child-like way, the judiciary was our “I need an adult” branch in the social order of our society. They were there to help us unpack and understand constitutional matters of public interest and property line dispute with our neighbours.
Though I instinctively encourage my children to resolve their disputes amongst themselves and am a great proponent of the “pickup the phone and talk to opposing counsel” approach to dispute resolution, I worry about the erosion of the hope placed in the court’s role in justly resolving disputes. However, I am hopeful, because I have not been alone in my concern.
Many of us in the legal profession spent the better part of 2025 discussing the sweeping reforms proposed by the Civil Rules Review Working Group in their various reports.
From conferences to office elevators, we’d hear opinions on the invaluable role of examinations for discovery, and worries about up-front evidence and front-loading costs, and the ever-present concerns about the resource demands on the courts to facilitate the ambitious goals of faster, more proportionate, and court-driven adjudication.
Once the legal community had the chance to digest the working group’s Final Policy Report, we understood that the implementation of the proposed changes was anticipated to start in mid-2026. Several regulations have already been made under the Courts of Justice Act, amending the Rules of Civil Procedure since late 2025. However, many of these changes have a nominal effect on the greater issues as they address limited matters such as the Teranet Software, changes to forms, and changes to the rules regarding the place of commencement or hearing a trial.
A joint statement from the Attorney General and Chief Justice Morawetz is expected to be released in the coming weeks. This is most likely to be an update about the status of the civil rules reform, and some are expecting commentary differentiating between non-controversial changes to be implemented in the short term, and changes that will take longer to implement.
I for one, am eager to adapt and evolve, again, as we strive for improving the system. Though I recognize some of my colleagues’ well-founded concerns, I embrace action that aims to move us towards the “new era” of predictable, court-led litigation, prioritizing speed and proportionality. Of course, the realist in me wonders if, much like the law of conservation of energy, our problems cannot be created or destroyed but only transformed. However, the optimist in me is hopeful.