On April 1st, the Ministry of the Attorney General released its Civil Rules Review Consultation Paper. It’s 122 pages in length, making it either the most elaborate April Fools prank on litigators I’ve ever seen; or something poorly thought out on many levels, including its release date.
If any of these changes are adopted, they are game changes in a bad way. It’s clear to me that the people behind these proposed changes aren’t the ones on the front lines of personal injury litigation; or aren’t listening to those who work on the front lines who see cases day in, day out.
These changes, if adopted will present significant barriers to access to justice for the general public. They will also drive litigation further towards AI in a bad way, thereby taking the human element out of litigation. Which is crazy to think given that the ultimate end of a case is trial, which is entirely based on testimony from people (not AI machines or algorithms). The proposals place a lot of emphasis on pre-litigation forms; which creates unnecessary make work projects for litigants. These are artificial barriers to litigating matters which should not exist. They are being proposed simply because the Courts can’t handle the volume of cases. These forms are a backdoor way to preventing litigants to advance their claims.
Here’s something I liked about the proposed rule changes: it makes it easier for lawyers to get off the record. Instead of wasting the Court’s time with motions to get off the record, the Working Group proposes that a lawyer should be entitled to requisition an order to be removed as counsel of record when the following preconditions (the “Preconditions”) have been met: (i) there are no deadlines (agreed upon or imposed by the Court or the Rules) or Court attendances within the next 90 days; (ii) there is no trial or dispositive hearing scheduled to be heard within the next 180 days; and (iii) the client is not under a disability. The requisition will need to be made on notice to the client and opposing parties. The lawyer seeking to get off the record will need to certify that the Preconditions have been met. That’s great! Saves time, money and Court resources. This change ought to have been adopted 20+ years ago. The crazy thing is that a lawyer can get appointed as easily as filing a Notice of Appointment, or filing a Statement of Claim or Statement of Defence, or Notice of Change of Lawyer. But, if a lawyer has to get off the record, there’s still a whole song and dance that needs to go with it. The proposal is that the song and dance eliminated with the filing of a simple form (Can you hear the AI Bots grinning!?!)