Plaintiff lawyers warn that Ontario’s civil justice overhaul would upend medical malpractice litigation, writes Tim Wilbur.
Ontario’s sweeping civil justice reforms, championed by Chief Justice Geoffrey Morawetz and Attorney General Doug Downey, are drawing sharp criticism from plaintiff-side medical malpractice lawyers. The overhaul, co-chaired by Ontario Superior Court of Justice Cary Boswell and Allison Speigel of Speigel Nichols Fox LLP, promises faster, simpler litigation. For those litigating medical negligence, though, they say the changes threaten to undermine the very core of their practice.
Plaintiff Lawyers Challenge New Rules
Aleks Mladenovic, partner at Thomson Rogers LLP, says the lack of medical malpractice expertise among those drafting the reforms highlights a fundamental flaw in the process: “None of the subcommittee members are practising members of the bar who do medical malpractice work in any capacity.” He argues the new rules were “driven not by just the issue of delays but the issue of costs, which, of course, is frankly not an issue in medical malpractice cases,” since plaintiffs never bear the costs because they pay lawyers on a contingency basis and the Canadian Medical Protective Association (CMPA) “is publicly funded and very well financed.”
The most contentious change is the elimination of oral examinations for discovery, which would be replaced by lawyer-prepared witness statements and a narrower approach to document disclosure. Mladenovic predicts that these statements would be drafted by lawyers for their clients, making meaningful impeachment at trial impossible. He stresses that every medical malpractice case he had won hinged on impeachment where a physician says one thing at discovery and another at trial. “That will now be impossible to achieve,” he says.
He describes the new approach to document disclosure as equally problematic. The “known adverse document” rule, which requires parties to produce only the documents they intend to rely on and those they know to be adverse, is, in his view, unworkable. “The committee even admits that they don’t even know what that means. At one point, they say, ‘Admittedly we haven’t been able to agree on what constitutes a known adverse document’… If they don’t know what a known adverse document is, how in the hell am I supposed to know that?” he says.
Mladenovic says that while the reforms may be worthwhile in other areas, medical malpractice litigation is fundamentally different from other types of civil cases. “Medical malpractice cases should definitely be exempted from these rule changes. There’s no question in my mind,” he says. Since healthcare is publicly funded, including much of the money funding the CMPA, “when it goes wrong, we should have the highest access to justice because we paid for it. Doctors have their premiums paid by the public.”
He also rejects the idea that the current discovery process is responsible for delays. “Examinations for discovery do not delay cases.” If the goal is to speed up litigation, he says, the answer is simple: “Impose timelines. You could say [that] the parties must conduct examinations for discovery within 12 months of the close of pleadings. And guess what will happen? We’ll alljust do it.”
