Civil Rules Committee

The Civil Rules Committee's mandate is to make recommendations to the Attorney General for rules in relation to civil practice and procedure for the Court of Appeal, the Superior Court of Justice and the Small Claims Court, which is a branch of the Superior Court of Justice. The committee is comprised of 29 members and is divided into four subcommittees responsible for considering reforms in discrete areas of procedure.

The committee also has a secretariat comprised of a private bar counsel, an academic, a judge and a lawyer from the Ministry of the Attorney General. Currently, the secretariat reviews and analyzes all proposed rule changes and provides commentary before forwarding submissions to the committee for review. It also occasionally consults with stakeholders where directed by the committee. It is reactive in the sense it does not generally advance new proposals to the committee or engage in long-term justice reform planning. Anyone can request a rule amendment by writing to the committee's secretary.

The secretariat has provided invaluable support to the Civil Rules Committee. Its four members have significant expertise in civil procedure and they have diligently considered potential reforms to the Rules of Civil Procedure. Proposed changes are analyzed in carefully written memoranda. Although the secretariat's work is commendable, it seems to me that the secretariat, guided by the chair of the committee, could play a larger, more proactive role in rule reform.

In the course of this Review, three primary issues relating to the Civil Rules Committee have been identified:

  1. Whether the size of the committee should be reduced to make its operation more efficient, and if so, to what extent.
  2. Whether the committee should be more transparent, and if so, how to provide greater transparency.
  3. Whether improvements to the role and function of the secretariat may be made.

Several Canadian jurisdictions do not have a formal Civil Rules Committee (e.g., Quebec, Nunavut, the Northwest Territories, Saskatchewan and the Yukon). All Canadian jurisdictions that have a formal rules committee have smaller committees than Ontario does. After Ontario's 29 members, the next highest level of committee membership is Manitoba with 16 members (though only 12 members vote). Other than Manitoba and Ontario, no other Canadian jurisdiction has more than 11 committee members, while most have 10 or less.

While I accept that civil justice stakeholders should be represented on the Rules Committee, it seems to me that the committee would be more effective if it were smaller. As a first step, the Rules Committee itself should consider this issue and make recommendations to the Attorney General concerning downsizing the committee.

The agenda and minutes of the Civil Rules Committee are not publicly available. Although committee membership is not a secret, it is difficult to determine. While there are private bar members on the committee, the lack of disclosure of committee activities limits transparency in the committee's agenda and decision-making process.

Manifestly, transparency could be improved immediately by making the committee's membership, agenda and minutes public. This would provide interested parties with a more complete picture of the committee's composition, deliberations and issues under active consideration. Publishing such information on a website would provide a cost-effective mechanism to keep lawyers and other interested parties informed. It would also improve the consultation process and allow those interested to engage in the committee's work. It might well result in higher quality submissions for consideration by the committee's secretariat.

There may well be some reasonable concern about publishing the full and detailed minutes of committee meetings or even a summary of its deliberations. Members may not be frank in discussing their experiences and revealing their views on a proposed reform if all aspects of committee meetings were published. I understand that concern. To the extent that this concern about minutes is legitimate, it does not apply to the committee's meeting agendas or to its composition.

Recommendations (Civil Rules Committee)

  • The Civil Rules Committee itself should make recommendations to the Attorney General on the downsizing of the committee.
  • Committee membership lists and meeting agendas should be posted on the Ontario Courts website. The Civil Rules Committee should consider whether and to what extent minutes of its meetings might also be posted on the website.
  • The Civil Rules Committee, with input from the secretariat, should recommend options to the Attorney General, the Chief Justice of Ontario and the Chief Justice of the Superior Court for a strengthened secretariat mandate that is both responsive to immediate calls for rule reform and proactive in considering and analyzing potential short- and long-term civil justice reforms for Ontario.