When the Phase 2 Consultation Paper landed, motions reform was the part of the package that made the litigation bar most uneasy. I blogged about Phase 2 earlier this year in my Substack, “Justice in Motion: The Case for Reforming Ontario’s Motion Process” ^[1]. I said then that the Working Group was not trimming motion practice at the edges. It was challenging its legitimacy as a default feature of Ontario civil litigation. That reaction was understandable. Motions have long been treated as a professional entitlement rather than a procedural exception.

The Final Policy Report^[2] keeps the core critique intact but recalibrates the mechanism. It does not retreat from the conclusion that Ontario suffers from a deeply ingrained motions culture. What it does instead is embed motions reform into a managed, judge-driven process that is more likely to work in practice and, just as importantly in my view, more likely to command compliance.

From the vantage point of mediation, this shift is not academic. Motions shape the emotional and financial terrain on which settlement discussions later occur. Reforming how motions arise, and whether they arise at all, goes directly to whether mediation remains a meaningful opportunity or a last stop after procedural exhaustion. 

The Motions Problem: Leverage, Not Volume

One of the more persistent arguments raised during Phase 2 was that the number of motions heard has declined and that the idea of a “motions culture” is overstated. The Final Report confronts this head-on and reject that argument as a distraction.

The problem was never how many motions were heard. It was how motions were used. Interlocutory motions became leverage tools, delay mechanisms, and cost-imposition devices. They rewarded procedural aggression rather than substantive readiness. They allowed parties to posture for years without confronting the merits of their case.

In mediation, the consequences are unmistakable. Parties arrive entrenched, exhausted, and often resentful, not because the dispute itself is insoluble, but because the procedural journey has hardened positions beyond reason.

Phase 2: Near-Elimination of Motions as a Policy Statement

Phase 2 proposed a sharp break. Most interlocutory motions were to be displaced by Directions Conferences, with judges empowered to resolve procedural disputes summarily and only permit formal motions where absolutely necessary.

Conceptually, that approach was sound. Culturally, it triggered alarm. The bar heard “no motions” and assumed “no fairness.” I believe what Phase 2 underestimated was not the legitimacy of the concern, but the depth of professional reliance on motions as a familiar organizing structure.

The Final Policy Report does not abandon the principle that motions are overused. It recognizes, however, that legitimacy requires structure, not just restraint.

The Final Model: Screening, Not Suppression

The most important shift in the Final Report is that motions are no longer presumptive, but they are not prohibited. Interlocutory relief is routed through Directions Conferences as the default gateway.

That change is fundamental. A party no longer self-selects into motion practice. They must first persuade a judge that a motion is proportionate, necessary, and incapable of being resolved more efficiently. Many procedural disputes will be decided at the conference itself. Formal motions remain available, but only where the issue genuinely warrants it.

From a mediator’s perspective, this is the right kind of pressure. It strips out performative motion practice while preserving judicial authority where it actually matters.

A Closer Look: How the Final Report Treats Specific Types of Motions

One of the strengths of the Final Policy Report is that it does not speak about “motions” in the abstract. It grapples directly with the kinds of motions that have come to dominate Ontario practice and asks whether they still make sense in their current form.

Dismissal Motions

Motions to dismiss for delay or procedural default have long functioned as blunt instruments. They are often brought late, after years of inactivity, and consume disproportionate Court time relative to their substantive value.

The Final Report moves decisively away from dismissal motions as a default enforcement tool. Instead, it favours structured discontinuance mechanisms and early judicial control over timelines. Delay is addressed through managed scheduling, sanctions for missed deadlines, and judicial oversight, not end-stage ambush motions.

For mediation, this matters. Dismissal motions often poison the well, transforming what might have been a resolvable dispute into a zero-sum procedural fight.

Motions to Strike Pleadings

Motions to strike have become a proxy for merits adjudication at the pleadings stage, frequently serving more as signalling devices than genuine gatekeeping tools.

Under the Final Report’s framework, issues that would traditionally generate a motion to strike are far more likely to be addressed at Directions Conferences, with judges empowered to narrow, clarify, or reframe pleadings without the ritual of a full motion record. Formal strike motions are not eliminated, but they are repositioned as exceptional rather than routine.

From a mediation standpoint, this reduces early positional escalation and preserves space for proportional resolution.

Discovery and Disclosure Motions

In my opinion, informed by years in the trenches, discovery motions are perhaps the clearest example of how motion practice spiralled out of control. Disputes over marginal relevance, overproduction, and sequencing routinely generated multiple motions in a single file.

The Final Report tackles this at the root. By moving to a reliance-based disclosure model and embedding discovery oversight into Directions Conferences, it dramatically reduces the need for standalone discovery motions. Where disputes arise, they are addressed early, orally, and proportionately.

This is one of the reforms most likely to improve the quality of mediation. Fewer discovery battles mean fewer sunk costs and less strategic bitterness by the time parties sit down to negotiate.

Wagg Motions

Wagg motions, particularly in motor vehicle litigation, have become emblematic of Ontario’s procedural inefficiency. The decision in D. P. v. Wagg, 2004 CanLII 39048 (ON CA)^[3] established the framework governing access to Crown disclosure from related criminal proceedings in civil litigation, balancing relevance against privacy and the integrity of the criminal process. Over time, motions brought pursuant to Wagg became routine in certain categories of civil cases, particularly motor vehicle and personal injury litigation, despite often predictable outcomes. Entire motions were devoted to accessing materials that everyone knew would ultimately be produced.

The Final Report explicitly targets this inefficiency by streamlining access to Crown briefs and related materials, removing the need for formal Wagg motions in most cases. This is a quiet but important reform. It recognizes that some motions exist not because of genuine dispute, but because the Rules made inefficiency unavoidable.

From the mediation table, eliminating Wagg motions removes delay without sacrificing fairness.

Motions to Strike Affidavits or Witness Statements

Motions to strike portions of affidavits or witness statements have become a routine feature of motion practice, particularly in advance of dispositive hearings. The Final Policy Report recognizes that while evidentiary disputes are inevitable, advance rulings on admissibility often consume judicial resources without advancing the proceeding, especially given that most cases never reach a dispositive hearing.

The Working Group therefore proposes a clear default rule that motions to strike affidavit or witness-statement evidence should ordinarily be heard at the outset of the dispositive hearing itself. Early rulings are to be exceptional and limited to circumstances where an advance determination is necessary and consistent with the Goals, such as where admissibility may materially affect expert evidence, create significant cost consequences, or give rise to serious prejudice if deferred.

From a mediation perspective, this reform curbs a familiar form of interlocutory litigation. It reduces procedural escalation over evidentiary issues that frequently prove immaterial and reinforces the Final Report’s broader premise that motion practice should be reserved for issues that genuinely require early judicial intervention.

Solicitor Removal Motions

Motions to remove oneself as counsel of record are rarely contentious and are almost invariably granted. I wrote a Substack last summer on these types of motion, “When Trust Vanishes: Withdrawing as Solicitor of Record in Ontario” ^[4]. The concern identified in the Final Policy Report is not conflict, but inefficiency. These motions consume Court time and party resources despite their predictable outcomes, requiring formal motion materials and judicial attention that add little to the resolution of the proceeding.

The Working Group addresses this by replacing most solicitor-removal motions with a streamlined, notice-based process. Counsel may serve and file a standardized Notice of Withdrawal of Counsel, with withdrawal taking effect after a defined transition period during which counsel remains responsible for the file. Judicial oversight is preserved where it is genuinely required, including cases involving parties under a disability, corporate litigants, or withdrawals close to scheduled motions or dispositive hearings.

From a mediation perspective, this reform is practical and overdue. It removes a category of motion practice that rarely advances the merits while maintaining safeguards against prejudice and disruption. More importantly, it reinforces the Final Report’s broader premise that motion practice should be reserved for real procedural disputes, not routine administrative steps.

Why This Matters in the Mediation Room

By the time a case reaches mediation, procedural damage is often already baked in. Motion practice inflates costs, distorts risk assessment, and entrenches narratives of unfairness that have little to do with the merits.

The Final Report’s approach to specific motion types directly addresses this reality. By reducing the frequency, intensity, and theatricality of motions, it preserves the conditions under which mediation can function as intended, before positions harden beyond repair.

The Cultural Shift Is the Real Reform

What the Final Report ultimately demands is not just new rules, but new habits. Lawyers are not expected to litigate perfectly. They are expected to litigate proportionately.

Motions are no longer treated as a professional reflex. They are treated as a last resort within a court-managed process designed to move cases forward. That cultural shift aligns far more closely with how disputes actually resolve in the real world.

Conclusion: Out of the Trenches

For too long, Ontario civil litigation has been conducted from the trenches. Interlocutory motions became the default terrain. It was slow, entrenched, and exhausting, where progress was measured not by movement toward resolution, but by attrition. Parties dug in. Costs mounted. And by the time anyone surfaced to talk seriously about settlement, the damage was often already done.

The Final Policy Report offers a credible path out of that landscape. It does not pretend that motions will disappear, nor in my view should they. What it does is strip them of their trench warfare function. Motions will no longer the engine of litigation. They will no longer be the place where disputes are prolonged, leverage is manufactured, or momentum is lost. They are repositioned as controlled tools within a judge-managed process designed to keep cases moving forward.

From where I sit, seeing cases arrive at mediation after years of procedural combat, the significance of this shift cannot be overstated. Getting out of the trenches means restoring perspective. It means fewer sunk costs, fewer hardened positions, and more room for principled resolution. It means a system that spends less time fighting over process and more time engaging with substance.

If implemented, motions reform may prove to be one of the most important aspects of the broader civil rules overhaul. Not because it eliminates motions, but because it finally gives litigants a way to move past them, and out into open ground where cases can actually be resolved.