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www.canadianlawyermag.com 55 record to allow the parties to examine the merits of the case." However, he noted, "The CMPA (as did many other organiza- tions) recommends retaining limited oral discovery in appropriate medical liability cases to preserve its important role in testing evidence and as a fact-gathering tool for all parties." Crolla also pointed to alternatives: "There are other litigation discovery mech- anisms that, if properly implemented, can also promote the important goals of factual discovery and issue narrowing." He supports a phased implementation and scheduled review, warning that "as with any substan- tive change, there is a level of uncertainty with the transition process." While open to reform, he wrote that the CMPA insists changes must be carefully designed. "While extensive front-loading can simply shift costs, the CMPA supports ... the implementation of a medical liability Pre-Litigation Protocol to increase early communication and document exchange, narrow issues and parties, and critically assess merits before filing," he wrote. The future of reforms For all parties, medical malpractice has unique dynamics that must be consid- ered when implementing change. Whether Ontario's civil justice reforms take that into account, and whether other provinces follow Ontario's lead, is still an open question. Review of Rules of Civil Procedure launched. Phase One Report released. handcuff plaintiffs and defence counsel in medical malpractice matters, where the interactions between doctors and patients are routinely complex and controversial, and doctors often claim that the written records do not reflect what was actually done or said," he says. Defence counsel urges caution Domenic Crolla, a partner at Gowling WLG who represents the CMPA, takes a more measured tone. In an email, he wrote, "The CMPA has expressed in its submission to the Civil Rules Review that it understands and supports efforts to streamline litigation. The proposal in the Phase 2 Consultation paper made a number of proposals, including the elimination of oral examinations for discovery. If this proposal is accepted in its entirety, then binding witness statements, documentary disclosure, and written inter- rogatories will need to provide a thorough "Seven hours, plus the option of going to chambers or going to a pretrial judge and just saying, 'Look, I need more time, and these are the reasons I need more time,' is a reasonable compromise," he says. For McGivern, "We need an opportunity to do our jobs, to get focused on what are the issues, how can we resolve these issues, and we can't do our jobs without the option of doing discovery." He adds that in BC, medical malpractice cases are already carved out from certain reforms that apply to other personal injury cases. "They're not like motor vehicle cases. They are very different. They're much more complex. They're much more involved. You need an opportunity to get all the expert reports that you want. And we recognize you're going to spend a lot more money than is spent on motor vehicle cases," he says. Both lawyers dismiss the "upfront evidence model," which relies on lawyer-prepared witness statements, as ineffective. McGivern calls it "probably mostly a waste of time and a waste of money," noting it increases costs for plaintiffs with limited resources and does not shorten timelines. "It is going to increase costs because these people are going to have to sit in front of their lawyers and produce all of this documentation," he says. Mladenovic is even more scathing: "Self-serving statements written by profes- sional advocates that can never be truly tested until trial? The [working group] clearly has no idea how badly this would "The ability to do examinations for discovery [is] absolutely critical to any prospect of succeeding on a medical malpractice claim" Paul McGivern, Pacific Medical Law CIVIL JUSTICE REVIEW TIMELINE (ONTARIO) 2023 2025 May 2024 April 2025 Phase Two Report released. Final recommendations and government response expected.