When I transitioned from defence work to my own plaintiff-side practice around 2000, I made a conscious effort to approach the commencement of a claim from the adjuster’s seat. Where possible, before issuing proceedings, I routinely gathered the core materials that would inevitably drive the file anyway, such as clinical notes and records, police reports, witness statements, hospital and treatment records, employer and government files, and prepared a principled proposal to settle. That package often landed on the adjuster’s desk before a claim was ever issued. Very often, it led to a resolution without litigation. That experience shapes my support for the Civil Rules Reform Working Group’s final proposal on Pre-Litigation Protocols (PLPs)^[1]>. They do not invent a new way of practicing law. They formalize one that already works when lawyers take early seriousness seriously.

For years, Ontario civil litigation has suffered from a contradiction that everyone recognizes but few have confronted head-on. Lawyers speak fluently about proportionality, efficiency, and early resolution, yet the system has quietly rewarded the opposite behaviour. Claims are issued before parties are clearly identified. Insurers are looped in late. Core documents emerge slowly and strategically. Mediation, when it happens, arrives after costs have already reshaped expectations.

The Working Group’s proposal on PLPs is an attempt to break that cycle. Like the recommendations on delay penalties^[2] and motion reform^[3], PLPs are not cosmetic. They are cultural. They insist that parties do some of the hard work earlier, before the Court is enlisted, before positions calcify, and before procedure becomes a substitute for progress.

This is not an effort to soften litigation. It is an effort to make it honest.

 The Purpose of a Pre-Litigation Protocol

At its core, a PLP is about defining the dispute before launching it. The protocol requires prospective parties, before issuing a claim, to exchange the most basic information necessary to understand what the dispute is actually about. The proposal is careful to keep those obligations deliberately modest. There is no appetite here for front-loaded discovery or procedural overreach. The aim is simply to ensure that when a claim is issued, it is issued with eyes open.

The exchange contemplated under a PLP mirrors what I think competent counsel already do in many files. A claimant must articulate the nature of the claim in a meaningful way. A responding party must outline its position. The correct defendant should be identified where possible, insurers brought into the conversation early, and a defined set of core documents exchanged, ones that we all know would inevitably surface once litigation begins in any event. Parties are also expected to turn their minds, however briefly, to whether early mediation might resolve or at least narrow the dispute.

All information exchanged under a PLP is subject to the deemed undertaking rule^[4]. That single feature undercuts much of the anxiety sometimes expressed about privacy and misuse. What is exchanged at this stage is no freer to be exploited than what is produced later in the litigation.

As proposed, PLPs would be implemented through Practice Directions, developed in consultation with the relevant bar, rather than as stand-alone rules governing pre-litigation conduct.

 Modesty by Design, Not Accident

One of the most striking features of the proposal is what it does not do. PLPs do not require admissions of liability. They do not compel sweeping disclosure. They do not force parties into settlement. They simply require a level of engagement that prevents litigation by ambush.

This restraint is intentional. The Working Group is plainly aware that pre-litigation obligations, if overbuilt, can become weapons rather than tools. The proposed protocols are therefore framed as a subset of eventual disclosure obligations, not an expansion of them. Their purpose is to prepare the ground, not to till the entire field before the first pleading is filed.

Limitation Periods Remain Untouched

One of the most important assurances in the proposal is also one of the simplest. Pre-Litigation Protocols do not amend, suspend, or extend limitation periods. If complying with a PLP would result in a limitation period expiring, the claimant must issue the proceeding. The Court may then, if appropriate, direct that the PLP steps be completed after the Notice of Claim is issued.

This point is deliberate and consequential. It ensures that PLPs do not become a procedural choke point or a tactical obstacle used to defeat otherwise valid claims. The thought here is that a system aimed at improving early engagement should not do so by creating new opportunities for forfeiture. Access to justice is not enhanced by clever limitation arguments dressed up as procedural compliance, and the Working Group in my view rightly closes that door.

That said, this position reflects a measured retreat from what was contemplated in Phase 2 of the reform process. At that earlier stage, the Working Group considered a uniform three-year limitation period, precisely because it anticipated that meaningful pre-litigation exchange of document disclosure, party identification, insurer engagement, and early dispute resolution, would require more time than the current two-year framework comfortably allows. See my blog from this past summer, “Three Years to Sue? Not So Fast”.^[5] The logic was straightforward. If the system expects parties to do more work before issuing a claim, the law should give them adequate runway to do it properly.

Ultimately, the Final Report stops short of that reform. The existing limitation regime remains intact, likely reflecting both stakeholder caution and the recognition that limitation periods are deeply embedded in substantive law, not merely procedural design. In that sense, the decision not to alter limitation periods represents a pragmatic compromise. PLPs are introduced without reopening a broader and more politically fraught debate.

But the implication is clear. PLPs are designed to change behaviour without changing the clock. They rely on discipline, enforcement, and judicial supervision, not expanded timelines, to achieve earlier seriousness. I believe whether that balance proves sustainable over time remains to be seen. For now, the message is unmistakable. Parties are expected to engage earlier, but they must do so within the same temporal constraints that have always governed civil claims.

Enforcement That Is Immediate and Unapologetic

Past experiments with “best practices” failed for a predictable reason. There were no consequences for ignoring them. The PLP proposal confronts that reality directly.

Compliance with applicable PLPs must be certified at the outset of the proceeding. If a case is streamed to the Trial Track and the parties have not complied, the Court intervenes early. A Scheduling Conference is set. Responsibility for non-compliance is assessed. The Court has discretion to direct completion of PLP steps after issuance, depending on which party failed to engage. Crucially, the Court must order $1,000 in costs against the non-complying party, absent a satisfactory explanation.

This is not a symbolic sanction. It is small enough to be routine, large enough to be irritating, and certain enough to change behaviour. It sends a clear signal that PLPs are not aspirational. They are expected.

In Summary Track cases, the same philosophy applies. The judge at the initial Directions Conference determines whether the proceeding should be stayed pending PLP compliance and whether costs should be imposed. Again, the emphasis is on early correction, not retrospective punishment.

 Why a General PLP Is Necessary

The Working Group initially contemplated only matter-specific protocols. It now proposes both tailored PLPs and a general protocol applicable to most civil matters. That shift reflects a realistic assessment of how the reformed system will operate.

Once a claim is issued, timelines will tighten dramatically. Without a general PLP, parties would be forced to make critical decisions under compressed schedules, often without having exchanged even basic information. A general PLP restores balance. It gives defendants a fairer opportunity to understand the case they must meet and tempers the structural advantage plaintiffs have always enjoyed by being able to gather evidence before commencing proceedings.

This is not about disadvantaging claimants. It is about aligning preparation time more evenly before the clock accelerates.

 Why Certain Matters Are Excluded

The exclusions from the PLP regime are not concessions to resistance. They are acknowledgments of reality.

Claims involving violence or abuse are excluded because forcing survivors to disclose deeply personal information to alleged abusers without Court oversight poses unacceptable risks. Estate disputes are excluded because they often require urgent Court intervention, involve documents that cannot be produced without Court orders, and trigger statutory roles for the Public Guardian and Trustee and the Office of the Children’s Lawyer. Class proceedings are excluded because disclosure is statutorily deferred until after certification. Matters involving minors or persons under disability raise similar concerns, with limited and carefully considered exceptions.

Proceedings against the Crown, appeals, and most Application Track matters are also excluded, each for reasons grounded in statutory structure or procedural logic. The exclusions demonstrate that the proposal is not ideological. It is selective, pragmatic, and grounded in experience.

 Cost Objections and the Real Fear Behind Them

Some consultees objected to PLPs on the basis that they would increase costs. On close examination, that objection collapses into a familiar discomfort. Early transparency changes leverage.

The work required under a PLP is work that would be done anyway. If a matter resolves early, those costs are saved downstream many times over. If it proceeds, the parties are better positioned to litigate efficiently, with clearer issues and fewer procedural skirmishes.

The real objection is not cost. What is truly being resisted is the early loss of informational leverage.

 Insurance, Admissions, and Practical Warnings

The Working Group also squarely addresses the concern that admissions made during a PLP could prejudice insurance coverage. The response is practical rather than theoretical. Personal injury PLPs should explicitly warn insureds not to engage directly if they have insurance and instead forward the claim to their insurer.

That reflects how these cases actually unfold. The goal is not to extract unguarded admissions from lay defendants but to ensure that claims reach the correct institutional actors early enough to matter.

 Pre-Claim Discovery and the Norwich Problem

The proposal’s treatment of pre-litigation discovery from third parties is one of its most consequential elements. Norwich orders^[6]are powerful but opaque. Their criteria are scattered across decades of jurisprudence, unevenly articulated and difficult to access, particularly for self-represented litigants.

By recommending that the common law requirements for Norwich relief be codified, the Working Group is not expanding the availability of extraordinary remedies. It is clarifying them. Codification improves predictability, disciplines discretion, and makes an already intrusive remedy more transparent rather than more aggressive.

 The Cultural Shift PLPs Are Meant to Enforce

Pre-Litigation Protocols are not about courtesy. They are about discipline. They require parties to confront the substance of a dispute before converting it into a procedural contest. They will move mediation earlier, when it has the greatest chance of success. They will reduce the incentive to issue claims as placeholders and to litigate first and think later.

Together with delay penalties and motion reform, PLPs mark a decisive shift away from trench warfare. They insist that parties come out of the trenches earlier, prepared, and on purpose.

If implemented as proposed, and enforced as promised, I believe PLPs will not just change how cases begin. They will change how lawyers think about beginning them at all.