Introduction: The Problem of Motion Overload 

“Motions have become a source of delay, expense, and procedural complexity, often consuming disproportionate judicial resources relative to the issues at stake.” (Phase 2 Report, p. 52)

Ontario’s civil courts are straining under the weight of backlogs and limited resources. Trials are frequently pushed years into the future, and litigants are left frustrated by the sheer length of time it takes to have their cases heard. One of the consistent complaints from judges, lawyers, and litigants alike is that far too much of this scarce judicial time is being consumed by interlocutory motions that add little to the real progress of cases.

The Phase 2 Civil Rules Review^[1] takes aim squarely at this issue, recommending a series of reforms that would streamline motion practice, reallocate routine matters away from judges, and eliminate unnecessary duplication. The expectation is not that judicial oversight will vanish, but that it will be applied more strategically to the matters that truly require it.

Directions Conferences: Gatekeeping the Process

“The current process for bringing motions encourages delay and duplication and undermines proportionality and access to justice.” (Phase 2 Report, p. 53)

A key proposal in the report is the elimination of Directions Conferences where they serve no useful purpose. As it stands, parties often find themselves obliged to attend conferences even when the relief sought is unopposed, consented to, or capable of being granted by a registrar. Under the new approach, such matters would no longer require a formal conference unless a party under disability was involved. Similarly, motions brought on a without-notice basis would bypass the conference stage entirely. By drawing these boundaries, the system avoids burdening judges with proceedings where there is nothing genuinely in dispute, thereby allowing judicial time to be concentrated on adversarial issues where discretion and judgment are needed (p. 57).

Motion Materials: Trimming the Fat

“The prolix and repetitive nature of motion materials has serious consequences: even simple motions become expensive to litigate. In addition, precious judicial resources are wasted sifting through voluminous materials to identify what is actually helpful or determinative.” (Phase 2 Report, p. 57)

Another major area of reform concerns the sheer bulk of motion materials. The report is candid in observing that affidavits often overlap, notices of motion repeat factual and legal content already contained in factums, and parties are required to file compendiums and additional summaries that simply restate information already before the court. Even where documents are undisputed, they must still be sworn into evidence, adding further to the paper burden. The result is voluminous records that drive up costs and consume judicial time, even though only a fraction of the material ultimately assists in determining the motion (p. 57–58).

The Working Group’s solution is a streamlined system that begins with a new document called the Notice of Relief, which replaces the notice of motion. The Notice of Relief would be concise, setting out only the relief sought, the governing provisions, and any presumptions that apply, without duplicating factual or legal arguments. In advance of a Directions Conference, the moving party would file a short submission of no more than five pages, setting out the evidence on which it relies along with its legal submissions, while the responding party would file its submission three days later. These submissions, signed with attestation clauses, would form a modest evidentiary record for the judge, eliminating the need for lengthy and repetitive affidavits (p. 58).

The “One Document” Approach to Formal Motions

“The Committee recommends a ‘one document’ approach to formal motions, whereby the moving party’s materials, responding materials, and reply are filed together in a single motion record, subject to page limits.” (Phase 2 Report, p. 58)

If the matter proceeded to a formal motion, the reforms would go further by introducing what the report describes as a “one document” approach. Instead of multiple affidavits and overlapping exhibits, the parties would exchange a series of streamlined “Facts Documents,” drafted in the third person and footnoted to identify the witness or document that supports each fact. Witnesses would swear to the truth of the facts attributed to them in the document, which would serve as a consolidated evidentiary record. Documents of undisputed authenticity could simply be attached without requiring an affidavit. After cross-examinations, the parties would prepare their factums, limited to twenty pages, which would combine the revised Facts Documents with legal argument. This structure is designed to cut down needless repetition, reduce costs for parties, and enable judges to focus their attention on the factums and any expert reports rather than sifting through sprawling records (p. 59).

Urgent Motions: A True Fast Track

“Where a party seeks to bring an urgent request for relief on notice, a Directions Conference will be scheduled no later than three business days after the request is made.” (Phase 2 Report, p. 60)

Urgent motions would remain an exception to this general structure, but even here the reforms inject more discipline. Where relief is sought without notice, motions would proceed as they do now, without the requirement of a Directions Conference. However, where relief is sought on notice and urgency is claimed, a Directions Conference would be scheduled within three business days of the request. The moving party would be obliged to file its Notice of Relief and submission at the outset, with the responding party filing one day before the conference. The judge at the conference would then determine whether the motion is truly urgent and, if so, give directions as to the process for resolving it. This ensures that genuine emergencies are dealt with quickly, while curbing the temptation to label every motion as urgent simply to jump the queue (p. 60).

Motions to Remove Counsel: Ending the Formality

“The bar has expressed concerns about the time and resources spent on this type of motion, which is almost invariably granted, as well as the deterrent effect that the onerous process of removing oneself as counsel of record can have.” (Phase 2 Report, p. 61)

One of the most pragmatic reforms addresses motions by lawyers seeking to be removed as counsel of record. Under the current Rule 15.04, these motions require significant paperwork and court appearances even though they are almost always granted.

The Phase 2 proposals would allow counsel to file a requisition instead, provided certain preconditions are met: namely, that there are no deadlines or attendances in the next ninety days, no trial or dispositive hearing within the next 180 days, and that the client is not under a disability. If those conditions are certified, the order removing counsel would issue automatically after fourteen days unless challenged by the client or another party. This approach reduces the burden on the courts while still safeguarding against prejudice to the client’s ability to obtain new counsel. It reflects a recognition that motions which are virtually never refused should not monopolize judicial time (p. 60–61).

Pleadings Motions: Breaking the Cycle

“There is a perception that the Rules too readily facilitate leave to amend pleadings that have been struck for one deficiency or another. The result, at times, is a series of motions to strike several different iterations of the same claim, resulting in significant costs and delay.” (Phase 2 Report, p. 64)

The report also proposes significant changes to pleadings motions, another area where delay and inefficiency are common. First, motions for particulars would be eliminated on the basis that the up-front evidence model should already provide the necessary detail by the close of pleadings. Second, the various rules governing pleadings, amendments, joinder, bifurcation, and related matters would be consolidated into a single umbrella provision, making the rules easier to navigate and reducing the likelihood of duplicative motions. For example, Rule 6.1 (Separate Hearings) and Rule 21 (Determination of an Issue Before Trial) , both of which allow for the determination of discrete issues before trial, would be combined into one coherent process. Third, and perhaps most significantly, the practice of granting repeated opportunities to amend defective pleadings would be curtailed. Parties would be required to file a proposed amended pleading with their responding materials, and judges would have four clear options: dismiss the motion, grant leave to amend in line with the draft, direct a trial of legally tenable issues, or strike the pleading without leave if both versions are deficient. This model ensures fairness while preventing the revolving door of serial motions to strike that currently plagues the system (p. 62–64).

Anticipated Benefits

Taken together, these reforms reflect a consistent theme: predictable motions that consume court time without advancing cases should either be eliminated, shifted to registrars, or simplified through streamlined procedures. By requiring parties to be more disciplined in their submissions and by closing off avenues for repetitive motion practice, the system promises to save both cost and time. The expected savings are substantial. Judges will be freed from presiding over motions that add little to the progress of a case, while litigants will avoid the expense of drafting and responding to repetitive materials. The net effect should be faster timelines, lower costs, and more judicial energy devoted to substantive disputes.

Where Mediation Fits

For mediators, these reforms carry additional implications. When motion practice is pared down and the issues are brought into sharper focus earlier in the life of a case, parties are better positioned to consider settlement. With less money and time wasted on interlocutory skirmishes, mediation becomes an even more attractive option. The reforms, in other words, not only promise to conserve judicial resources but also to nudge litigants toward earlier, more meaningful resolution of their disputes.

Conclusion

Ontario’s civil justice system is at a turning point. Phase 2 of the Civil Rules Review does not purport to solve every problem, nor does it substitute for the need for more judges and better funding. But by cutting out the fat of unnecessary motions and streamlining the ones that remain, it offers a practical path to efficiency. Judges will judge, litigants will spend less, and the courts will inch closer to the ideal of timely, accessible justice.