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46 www.canadianlawyermag.com LEGAL REPORT "Because of the demands of this very quick process with very tight timelines, it will require all sides to be ready to litigate more quickly," Kolenda says. "In some cases, that will mean that parties will have a better understanding of the strengths and weak- nesses of their case early on, and … will want to be prepared to settle quickly." In other cases, Kolenda foresees parties being more eager to go to trial because all the extra work they did early in the process affirmed their belief that they have a strong case. He adds that the proposed rules likely won't have a uniform impact on all commercial matters. But because a compressed litigation timeline with significant upfront obligations will cost a lot of money within a short period, many businesses will likely "be more motivated to try to resolve disputes consensually before engaging in the litigation process," Kolenda says. "I think clients will have to think long and hard before they just issue a claim." While neither Kolenda nor Lockwood is convinced that these changes will push more parties to arbitration, Lockwood predicts they will encourage certain litigants involved in class actions to leave Ontario altogether. "Historically, Ontario has been a very popular jurisdiction for class action by virtue of our bench and our jurisprudence," Lockwood says. "If litigants feel that they're not going to get the same rights in Ontario that they otherwise would – if they're going to lose oral discovery rights – they may well choose to litigate in another jurisdiction entirely. "I do worry a bit about the cooling effect it's going to have on the development of the common law in Ontario," he adds. ONTARIO CIVIL RULES REVIEW disputes, Kolenda says: plaintiffs would likely have to do much more work before they even file a claim, to meet the tight deadlines, while defendants would be smart to start strategizing how to defend themselves if they believe a dispute could become litigious. "That seems fine in the abstract, but motions practice is fundamental to what a commercial litigator does, in the sense that motions are oftentimes more important than the ultimate trial because they narrow the issues, they refine the issues, they shape the litigation," he adds. "If you remove those sorts of gatekeeping metrics from the equa- tion, it's going to make for a difficult process." According to Kolenda, the pressure of having to resolve a dispute within two years is exacerbated by other changes proposed by the CRR Working Group, like requiring parties to produce documents much earlier in the litigation process than they currently do. That could change how litigants approach "This very quick process with very tight timelines … will require all sides to be ready to litigate more quickly" Brian Kolenda, Lenczner Slaght LLP January 2024 Ontario Attorney General Doug Downey and Chief Justice of the Superior Court of Justice of Ontario Geoffrey Morawetz launch the Civil Rules Review to reform the Rules of Civil Procedure. A working group is appointed to develop reform proposals. May 2024 The working group publishes its first report identifying the scope of potential reforms. April 2025 The working group publishes a second, 122-page report with specific reform proposals. The Civil Rules Review Phase 2 Committee's co-chairs were Justice Cary Boswell of the Ontario Superior Court of Justice and Allison Speigel of Speigel Nichols Fox LLP. COMMERCIAL LITIGATION