Decreasing Delay in Ontario Civil Litigation — What’s Changing and Why It Matters

Introduction  

Delay has become a defining feature of litigating civil claims in Ontario. The “Delay” section of the Ontario’s Civil Rules Reform Final Policy Report sets out a clear plan to reset timelines, curb adjournments, and make deadlines meaningful. Below is a high‑level summary of what’s driving change and how the system would work differently if the proposals are adopted. 

Delay increases costs, strains clients, and erodes confidence in justice. The Final Policy Report recognizes that delay is not just a resourcing problem; it is also a design flaw in the current party‑driven model. The reforms move towards a court‑managed system with fixed hearing dates, stronger enforcement of interim deadlines, and clear consequences for non‑compliance. The Final Policy Report aspired to create cultural change: make delay the exception, not the norm.  

1. The Need for Change 

Before diving into solutions, the Final Policy Report explains why delay is so harmful:

• It prolongs resolution, drives up legal spend, and undermines public confidence;  

• It encourages tactics that win by attrition rather than on the merits; and 

• It feeds extra motion work (e.g., dismissals for delay), burning scarce judicial time.  

The Final Policy Report identifies three features in the current system which enable delay:

• A party‑driven process with loose pacing; 

• Easy adjournments that treat “delay” as a cure for prejudice; and 

• Weak enforcement of timetables, with few real consequences for breaches.  

2. Proposed Reforms 

The Phase 2 Consultation Paper proposes a focused package of reforms aimed at changing behaviour and shortening timelines, including:

• Early, firm hearing dates for trials, summary hearings, and motions, with adjournments granted only in exceptional circumstances by the Regional Senior Justice (or designate) and not for late materials or lack of preparation; failure to attend a fixed event may result in pleadings or governing documents being struck.

• Stronger enforcement of interim deadlines, including daily delay penalties after notice ($250/day on the Trial Track and $100/day on other tracks), inadmissibility of late materials without consent or leave, and limited relief from penalties subject to a short grace period and exceptional circumstances.

• A structured consent‑and‑leave framework allowing parties to revise interim deadlines by agreement (without jeopardizing fixed hearing dates and without automatically waiving penalties), or requiring a motion for leave where consent is not obtained.

• A new, codified duty requiring parties to cooperate to resolve scheduling issues without affecting fixed hearing dates.

• Elimination of Rule 48, with fixed hearing dates and enforced timetables replacing the set‑down and administrative dismissal regime, and an anticipated reduction in dismissal‑for‑delay and reactivation motions.

3. Consultation Feedback 

Stakeholders broadly agreed that delay is a serious problem and supported meaningful enforcement of deadlines. Key themes of the consultation feedback included: 

• Support for firm timelines and consistent enforcement, with a narrow safety valve for exceptional cases.  

• Concern about resource limits and the risk that strict adjournment tests could strain sole practitioners and equity‑seeking groups.  

• Mixed views on the Delay Penalty size and fairness concerns. This feedback prompted proposed Delay Penalty reductions, a clear notice requirement, a short grace period, and limited relief for exceptional circumstances.  

• Calls to ensure conferences remain flexible and to preserve fairness where late materials do not risk the hearing date.  

4. Recommendations 

The Final Policy Report recommends adopting a firm, court‑managed model that: 

• Deletes Rule 48 in full.  

• Fixes hearing dates early in the process and limits adjournments to truly exceptional circumstances.  

• Enforces interim deadlines through proportionate consequences, including a daily delay penalty ($250 per day on the Trial Track and $100 per day on other tracks) triggered only after notice by the non‑defaulting party and a three‑day grace period, and the inadmissibility of late materials absent consent or leave.

• Codifies a duty to cooperate on scheduling and permits pragmatic adjustments where the trial date is preserved.  

• Applies a softer adjournment test to conferences while keeping a strict standard for motions and dispositive hearings. 

These measures aim to reduce back‑end wrangling, cut wasted costs, and give parties confidence that their cases will move to a hearing as scheduled. They also replace blunt administrative dismissal tools with a more targeted, predictable regime that directly addresses delay where it occurs.