New Pre‑Litigation Procedures

This overview summarizes the new pre‑litigation procedures proposed in the Ontario Civil Rules Review Final Policy Proposals. It focuses on what will be expected before a claim is issued and the practical consequences the Court may impose for non‑compliance. The aim of these new procedures is to reduce delay and cost by front‑loading basic information exchange and encouraging real settlement efforts before litigation starts.

1. Pre‑Litigation Protocols

The proposal introduces pre‑litigation protocols (PLPs) that set out modest, clear steps parties are expected to take before commencing a civil proceeding. Ontario does not currently have PLPs; the proposal draws from long‑standing practice in England and Wales and other jurisdictions.

The PLPs are intended to mandate early exchange of information and specific relevant documents to ensure parties make a genuine effort to resolve disputes before commencing litigation. If litigation is still required, the PLP will have narrowed the disputes and issues and prepared for a more efficient entry into litigaiton.

What PLPs require at a high level

• Parties exchange early information and a defined set of relevant documents they would need to produce anyways in litigation.

• Parties identify the correct responding party and any insurer(s) and request clearly relevant third-party records where needed.

• Parties consider and, where appropriate, attempt early resolution (including mediation).

• The deemed undertaking rule applies to anything disclosed under a PLP.

• Importantly, PLPs do not amend, vary, or extend applicable statutory limitation periods; if adherence to a PLP would result in a limitaiton expiring, the claim should be commenced (though the court may direct further steps be taken following the notice of claim to complete the PLP process).

Where PLPs apply

• Tailored dispute‑specific PLPs will be developed for: personal injury, medical malpractice, liquidated debt collection or mortgage enforcement (unless the parties adopt an alternative protocol), and other contractual disputes.

• A further general PLP will capture most other civil claims, with exclusions for certain types of matters (see below).

Key carve‑outs

Importantly, PLPs will not apply to:

• Counterclaims, crossclaims, or third and subsequent party claims.

• Certain types of claims including: claims alleging violence or abuse; estate matters; class proceedings; claims involving a person under disability or a minor (except Family Law Act Part V dependency claims); Application Track matters; appeals; matters under the Crown Liability and Proceedings Acts; and claims seeking urgent or early relief where notice would defeat the remedy.

Enforcement and consequences

• Claimants must state on Appendix “A” to the Notice of Claim whether the PLP was followed.

• If a PLP was required but not followed, the Court can:

  • In Trial Track matters: set the remaining PLP completion steps at the Scheduling Conference with orders for $1,000 in costs against the non-compliant party absent a satisfactory explanation for non-compliance.

  • In Summary Track matters: the Directions Conference judge may stay the proceeding pending PLP compliance and order costs for non‑compliance.

• The Court will tailor procedural orders regarding PLPs to avoid rewarding obstruction or delay in the PLP process.

2. Pre‑Litigation Discovery from a Third Party (Norwich Orders)

The proposals would codify the equitable pre‑action discovery available under existing “Norwich order” jurisprudence, clarifying when a party can obtain limited pre-litigation information from a non‑party before a claim is started or framed.

Current approach and need for clarity

• Canadian courts attempting to import the list of factors applicable to seeking Norwich Orders have created some uncertainty around the application of this form of equitable relief against third parties.

• The proposals include a recommendation that the new rules codify the precise requirements and test for seeking pre-litigation discovery against non-parties, as has been done in England, Australia, and Singapore. This codification will improve predictability while preserving the discretionary and cautious nature of the remedy.

Overall Recommendations

• Develop a suite of dispute‑specific PLPs (and one general PLP) through consultation with relevant practice groups, mandate them via Practice Directions, and create Rules allowing the Court to impose consequences for non‑compliance before proceedings move forward.

• Codify the common law test for pre‑action discovery (Norwich orders) to clarify availability, necessity, and limits.