I read an recent article[1] reporting on a case where the judge came down hard on defence counsel who had stepped up to fill in for an ill colleague.

The recent Ontario Superior Court decision in Hicken v. Abbot Chiropractic and Health Care[2] offers a useful window into a deeper problem in Ontario civil litigation. At first glance, the case appears to be a fairly typical personal-injury dispute. But beneath the procedural criticism directed at counsel lies a broader systemic issue, that Ontario has a litigation culture that often pushes lawyers into inefficient and costly practices that serve neither the Court nor the parties.

Rather than treating the case as an example of a judge criticizing an individual counsel, I believe it is more productive to see it as a reflection of the structural pressures embedded in our current system of civil procedure.

The decision highlights precisely the kinds of problems that the upcoming reforms to Ontario’s civil justice system are intended to address.

The Case

The underlying claim arose from a slip-and-fall accident. The plaintiff suffered a displaced clavicle fracture that required surgical treatment and claimed damages including general damages, loss of competitive advantage, and housekeeping assistance. Her mother also advanced a claim under the Family Law Act for care provided following the injury.

As is common in personal-injury litigation, liability and damages were both disputed. Nothing unusual there. The parties requested approximately twenty days of jury trial time, and the matter was placed on a trial list during a court “trial blitz” aimed at reducing the backlog.

In addressing the procedural posture of the case, the Court expressed concern about the litigation approach taken by defence counsel and emphasized that lawyers owe duties not only to their clients but also to the justice system itself. The Court observed that litigation strategies can sometimes produce “systemic harm” when they unnecessarily prolong proceedings or consume scarce judicial resources.

Those comments, read in isolation, could be interpreted as criticism of counsel. But for me in reading the decision, the more important question is why such situations arise in the first place.

The Structural Pressures Behind Litigation Conduct

Civil litigation does not occur in a vacuum. Lawyers operate within a procedural framework that shapes the strategic choices available to them, and the real-life pressures that come with it.

For decades, Ontario civil litigation has been characterized by several structural features that push cases toward complexity and delay:

• pleadings drafted broadly in order to preserve every conceivable argument

• lengthy documentary and oral discovery processes

• tactical motion practice

• jury trial strategies in personal-injury litigation

• settlement negotiations that often occur very late in the life of the case

In that environment, counsel frequently feel compelled to litigate defensively, raising issues, preserving arguments, and preparing for every possible contingency.

From the outside, this can appear inefficient. From inside the system, it is often simply prudent advocacy.

Defence counsel in particular operate under additional constraints. They must answer not only to the Court and their client but also to insurers, claims managers, and institutional litigation protocols. In many cases, the procedural posture of a file is shaped as much by the insurance framework as by the legal merits of the claim.

Seen in that light, the litigation approach criticized in Hicken is less an aberration than a symptom of the system in which the case unfolded.

The Culture of “Full Litigation”

Ontario’s Rules of Civil Procedure evolved during a period when trials were expected to be the ultimate resolution mechanism for most disputes. The procedural machinery of pleadings, discovery, expert evidence and motions was designed around that assumption.

But the modern reality is different. Most civil cases never reach trial. They resolve through settlement, mediation, or abandonment long before that stage. Yet the procedural architecture still forces parties to prepare as though every case will be fully litigated.

This produces a paradox.

Lawyers must spend years building a trial-ready record for disputes that will almost certainly settle. The cost and complexity generated by that preparation then becomes one of the very reasons parties feel pressure to settle. In short, the system itself manufactures the inefficiencies it later criticizes.

Why Judges Are Increasingly Frustrated

Judicial frustration with this model is not new, but it has intensified as the backlog of civil cases has grown. Trial lists across Ontario remain congested. Courts struggle to allocate sufficient judicial time. Cases often sit for years waiting for trial dates. Against that backdrop, judges are understandably concerned when a case appears to consume more procedural resources than its complexity warrants.

But it is important to recognize that lawyers are operating within the procedural incentives the system has created. When the rules permit expansive discovery, broad expert evidence, and extensive motion practice, counsel cannot simply ignore those tools without risking prejudice to their client.

Judicial criticism therefore risks addressing the symptom rather than the cause.

The Coming Shift in Ontario Civil Procedure

From my seat as a mediator, the real significance of Hicken lies in how closely it aligns with the rationale behind Ontario’s proposed civil justice reforms. The reforms currently under discussion and now moving steadily toward implementation are designed to change the structure of litigation itself.

Several key themes underpin these reforms:

Earlier judicial control

Cases will be brought under meaningful judicial supervision at a much earlier stage. Instead of allowing litigation to evolve organically for years before trial management occurs, judges will intervene sooner to narrow issues and control procedure.

Proportionality as a governing principle

Procedural steps will increasingly be measured against the value and complexity of the dispute. Not every case will justify the full machinery of traditional litigation.

Issue-focused litigation

Rather than permitting every conceivable issue to remain live until trial, courts will encourage earlier identification and resolution of the core disputes between the parties.

Reduced tolerance for procedural gamesmanship

The direction of reform is unmistakable: less tolerance for tactical maneuvering and greater emphasis on efficiency and cooperation.

These systemic changes aim to reshape the environment in which lawyers make litigation decisions.

Why Cases Like Hicken May Become Less Common

If the reform agenda succeeds, the kind of procedural scenario seen in Hicken should become far less common.

Earlier judicial involvement will allow courts to identify disproportionate litigation strategies before they fully develop.

More structured case management will reduce the incentive to pursue every procedural avenue simply to preserve strategic options.

And clearer proportionality standards will make it easier for judges and counsel alike to determine when a case has grown procedurally out of scale with the dispute it seeks to resolve.

In other words, the reforms aim to prevent the very circumstances that gave rise to the Court’s concerns in Hicken.

A Moment of Transition in Ontario Civil Justice

A case like Hicken appears at a moment when Ontario civil litigation stands at an inflection point.

The traditional litigation model built around expansive discovery, late settlement pressure, and trial-centric procedure is increasingly viewed as unsustainable.

Courts are signaling their impatience with inefficiencies.

At the same time, lawyers continue to operate under rules that often reward defensive and exhaustive litigation strategies.

Until the procedural framework changes, that tension will remain.

Conclusion

It would be easy to read Hicken v. Abbot Chiropractic as a cautionary tale directed at defence counsel. On any other day of the week, it could have been plaintiff’s counsel caught in the judge’s crosshairs.

A more constructive reading is to see it as a reflection of a system under strain.

The decision highlights the pressures that the current litigation framework places on lawyers and courts alike. Those pressures are not the result of individual advocacy choices but of procedural structures that have not kept pace with the realities of modern civil litigation.

If the forthcoming reforms[3] to Ontario’s Rules of Civil Procedure achieve their intended purpose, they may gradually reduce the kinds of situations that produced the judicial concerns expressed in Hicken.

When that happens, the system will move closer to what it has always aspired to be: a forum where disputes are resolved efficiently, proportionately, and fairly without requiring years of procedural maneuvering along the way.

[1] https://www.lawtimesnews.com/practice-areas/personal-injury/superior-court-criticizes-defences-outdated-litigation-approach-in-slip-and-fall-case/393218

[2] https://www.canlii.org/en/on/onsc/doc/2026/2026onsc1244/2026onsc1244.html

[3] https://www.ontariocourts.ca/scj/files/pubs/2025-12-15-final-policy-proposal.pdf