As it currently stands, Plaintiffs face significant challenges pursuing medical malpractice claims in Ontario. They lack the specialized medical knowledge that physician Defendants possess regarding the procedures or treatments in question. They are not the authors—or interpreters—of the medical records, which often serve as the only contemporaneous evidence of what occurred. The prospect of litigation, especially litigation involving robust and well-resource protective associations (for example, the Canadian Medical Protective Association), is inherently daunting.
In January 2024, Attorney General Downey and Chief Justice Morawetz launched the Civil Rules Review, appointing a 14-member panel to reform the Rules of Civil Procedure (the “Rules”). In April 2025, the group released its Phase 2 Consultation Paper, which outlines a series of proposed reforms to the Rules. These changes are broad in scope and intended to apply uniformly across all areas of litigation, from corporate disputes to personal injury claims.
In certain areas of litigation, the proposed reforms are being met with optimism. For instance, in commercial litigation, where parties are typically familiar with each other and the relevant documentation and witnesses are well-defined, the changes are expected to improve efficiency. However, in other areas, such as medical malpractice litigation, the reforms are anticipated to have the opposite effect. Rather than enhancing access to justice, they risk deepening existing inequities.
Under the current Rules, oral discoveries are a key tool for all parties—and especially so in medical malpractice litigation. The proposed reforms would eliminate oral discoveries entirely, replacing them with an up-front model of document production and sworn witness statements, supplemented only by limited written interrogatories.
A critical function of oral discoveries in medical malpractice litigation is the ability to test evidence and to obtain admissions. It is the only stage prior to trial where parties answer questions under oath without the influence or editing of their legal counsel. A physician’s explanation about an improper surgical technique or admission that they overlooked critical information, can be the necessary evidence required for a plaintiff to establish their case, and can lead to prompt resolution of a claim. The proposed new rules require Plaintiffs to rely on Defendants to make critical factual admissions, or to provide relevant factual evidence not in their records, in written statements. This may be difficult to achieve where the information a Plaintiff (or Defendant, for that matter) needs to advance their theory of the case does not come to the mind or attention of the adverse party as relevant. These mismatches between theory and required evidence may result in significant gaps in the evidence available for expert review and comment.
Often a Defendant physician will admit during oral discoveries that information in the medical record is inaccurate or incomplete. Without oral discoveries, this evidence may never be adduced, and Plaintiffs’ experts will be left with faulty information to base their opinions on. This would further extend the information gap between Plaintiffs and Defendants in medical negligence cases.
Additionally, oral discoveries are generally the only opportunity prior to trial to assess the credibility of the parties involved. Evaluating credibility is essential to understanding the strength of a case and frequently leads to earlier settlements when it becomes clear that one party is either highly credible or not credible at all.
By eliminating oral discoveries, the proposed reforms would remove a crucial avenue for Plaintiffs to uncover the truth in areas of litigation where one party has the informational advantage. The remaining evidence would largely consist of medical records, which are typically authored by the defendants, and sworn statements, which the Consultation Paper acknowledges will be drafted by legal counsel. Sworn witness statements will be drafted and scrutinized by legal counsel to ensure no harmful admissions are included.
Though promoted as a way to reduce costs and burden on the courts, the proposed Rules will likely lead to the opposite result in medical malpractice actions. The expected impact of eliminating oral discoveries is that many more medical malpractice cases will proceed to trial, as it will be the first and only opportunity for parties to obtain admissions and assess credibility.
Various alternative reforms have been and continue to be offered by members of the personal injury/medical malpractice bar, including an American-style oral discovery process, where all questions are answered and ultimately dealt with at trial, or allowing for oral discoveries for certain practice areas where the up-front evidence model is not suitable – such as in medical malpractice.
It is apparent that the proposed reform of the Rules needs more consultation with professional practicing in different area of civil litigation to ensure what is good for some does not significantly curtail access to justice for others.
