The Civil Rules Review
The Civil Rules Review (“CRR”) was launched in 2024 as a joint initiative of the Chief Justice of the Ontario Superior Court of Justice and the Attorney General. The CRR’s mandate was to propose wholesale reforms to the Rules of Civil Procedure (the “Rules”) so that the civil justice system can be more accessible and to reduce costs and delays.
A working group of lawyers, judges and academics was created to identify issues and create proposals (the “Working Group”). Following an earlier Consultation Paper, on December 19, 2025, the Working Group released its final policy report (the “Report”) to the public. Pages 176-183 of the Report relate to pre-trial procedure.
In this article, I discuss the current procedure, the Working Group’s proposed reforms from the point of view of employment lawyers, and how these reforms, if implemented, may impact wrongful dismissal litigation in Ontario.
(Note: all quotations in this article are from the Report, except where otherwise noted.)
The current pre-trial procedure
As employment lawyers are aware, the current civil pre-trial system provides for the following forms of court-annexed ADR:
i) mandatory mediation, with a private mediator and at parties’ own expense, but only in Toronto and Ottawa (since 1999) along with Essex County, including Windsor (since 2002), and
ii) required attendance at a pre-trial conference (“pre-trial”) before a judge or an associate justice, in all jurisdictions, “during which efforts are made to settle the matter” in addition to trial management matters, but where “[in] practice, much more time is typically spent on settlement discussions than on trial management”.
Problems with the current procedure
The Working Group identified the following problems with the current procedure:
1. Mandatory mediation (a.k.a. “OMMP”) needs to be “expanded from the limited jurisdictions in which it is currently imposed”. In fact, the employment law bar has been calling for the OMPP expansion for many years.
2. The prescribed fees that charged by those mediators conducting a mandatory mediation who are on official, local rosters (“roster rates”) have not been updated since 1999. Roster rates are “far below current market pricing for legal services, resulting in limited incentive for individuals to serve as roster mediators”, although parties are free to hire non-roster mediators at market rates.
While not specifically noted by the Working Group, this limited incentive has, over the years, resulted in the inability of many mediators with a strong background in employment law to either join the Roster or, if they join, to remain on it for long.
3. The effectiveness of settlement discussions at pre-trials “can vary, meaning that, in some cases, this stage may not represent the best use of judicial time”, “limited judicial resources have created unacceptable backlogs in some regions”, and “because most pre-trial time is spent on settlement discussions, insufficient attention is given to trial management” (and greater focus on the latter “could streamline the trial process and shorten trials”).
As well, employment lawyers and mediators are aware that some parties may not “put their best foot forward” at mediation if they know that they will later have, essentially, a “second mediation” with a pre-trial judge at a much later date.
4. While not identified as a problem per se, binding Judicial Dispute Resolution (“JDR”) - which was recently codified by Rule 43 of the Family Law Rules - is currently unavailable to civil litigants.
Proposed reforms
1) Province-wide mandatory mediation:
The Working Group proposes the expansion of mandatory mediation province-wide with certain exceptions that are detailed in the Report, some of which exist under the current Rules, plus:
i) establishment of “a province-wide roster of mediators, enabled by virtual mediation”,
ii) establishment of “a task force to update the roster rates to reflect current market conditions”, and
iii) creation of “continuing professional development standards for roster mediators for quality assurance purposes”.
How these reforms, if implemented, may impact wrongful dismissal litigation
Aside from helping to promote the early settlement of wrongful dismissal disputes, these reforms have the potential to increase the number of employment law mediators who will serve as roster mediators.
Further, plaintiff side lawyers will no longer have to “forum shop” by commencing actions in jurisdictions where mandatory mediation is available, but where that jurisdiction does not have a connection to the parties or the dispute.
However, when implemented, these reforms could have unintended consequences that employment lawyers and other players in the civil justice system should be prepared to encounter:
i) While the number of wrongful dismissal actions commenced in Toronto, Ottawa and Windsor will undoubtedly decrease if mandatory mediation becomes available province wide, the case volumes of other courthouses will correspondingly increase as a result – particularly in judicial centres located in the Greater Golden Horseshoe, other than the City of Toronto.
ii) As well, a new type of “forum shopping” may arise that is not tied to geography but is instead tied to the level of court. Presently, in judicial centres where there is mandatory mediation, there is a trend in which many wrongful dismissal actions are commenced in Superior Court when they could have been commenced in Small Claims Court given the likely settlement value of the claim (and even the potential best-case scenario at trial). A prime reason for this though is that the Small Claims Court does not have mandatory mediation (nor is its expansion into Small Claims Court contemplated by the Report) – and a mediation will help promote early settlement.
Therefore, there is no reason to believe that the current trend won’t spill over into jurisdictions where mandatory mediation is new. In other words, Small Claims Court case numbers may decrease, while Superior Court cases may further increase due to OMMP expansion.
iii) We may move from a mediator market in which there are, seemingly, more mediators than cases to mediate, to one in which, due to new demand, there are too few mediators with a strong background in employment law – at least early on. This could result in temporary backlogs for booking mediations while the market adjusts to sudden new demand for employment mediators.
iv) There will be an inevitable delay between the time of OMMP expansion and when a province-wide roster with adjusted rates can take effect. As well, while the current tariff of $600 per half day mediation may increase, that does not mean that it will increase enough to attract more private mediators to the roster.
Of course, these are not criticisms of the proposed reforms. OMPP expansion province-wide is long overdue. But we must be attuned to its potential ripple effects.
2) Pre-trial conference reform
The Report calls for the elimination of “the judicial settlement aspect of pre-trial conferences”. Pre-trials would retain only the trial management component through a dedicated Trial Management Conference (“TMC”). TMCs are described in detail in Section 6 P. of the Report. However, the court will “retain a discretion to order a judicial settlement conference in circumstances that warrant it and where resources permit it”.
How this reform, if implemented, may impact wrongful dismissal litigation
In most cases, parties will no longer be able to just “kick it down the road” after mediation (“it” being settlement, and the “road” being one which ends at a pre-trial where the parties believe a judge may “strongarm” the parties into a resolution). This could result in even higher settlement rates at mediation. Like the classic Seinfeld episode, mediation, like soup, is the meal!
No doubt, though, some counsel might believe – at least early on - that their case will be one in which the court exercises its discretion to order a judicial settlement conference.
Yet, I predict that, with time, judges will be reluctant to order judicial settlement conferences because of their drain on limited resources. Therefore, the most likely consequence of pre-trial conference reform, where a case does not settle at or soon after mediation, is that a second mediation at a later stage of the action – especially if conducted by the original mediator who is already familiar with the case – will be normalized
3) Expanding JDR to civil cases
The Working Group recommends the adoption of the JDR model found in R. 43 of the Family Law Rules.
According to the Report, JDR “allows the parties to choose a summary process as an alternative to a trial. It envisions a single, one-day hearing which begins with a judicial mediation and, if that proves unsuccessful, a summary determination of the parties’ dispute”.
In addition,
- the ‘entire proceeding is conducted under oath or affirmation”;
- each “party files a short affidavit before the hearing”;
- the “presiding judge may express his or her views on the issues as the day proceeds”;
- at “the outset, the judge seeks to settle issues on consent. If there are issues that do not settle, he or she will hear brief submissions and render a decision on the merits”;
- the judge “may rely on anything said during the hearing day in reaching a decision on the merits”; and
- alternatively, the judge “may determine that the matter is not suitable for summary determination, in which case the hearing is treated [as] a case conference”.
The Report explains that JDR is suitable for cases “in which there are relatively narrow issues in dispute, no significant credibility issues, no oral evidence required from a non-party witness, and where it is reasonable to expect that the issues can be resolved or determined in a summary manner”.
How this reform, if implemented, may impact wrongful dismissal litigation
Firstly, JDR is problematic for reasons which are discussed in an article that I wrote for Law360 Canada. However, I could see it being implemented in certain types of employment law disputes, such as a straight-notice case. Presumably though, there would be mandatory mediation held prior to a JDR hearing. Depending on the wait list for such hearings, and the amount of counsel preparation time required, it might simply be more time and cost efficient to engage in mediation-arbitration (a.k.a. med-arb) in cases that would otherwise be suitable candidates for JDR.
Conclusion
For now, it remains to be seen if the Attorney General will adopt all the reforms outlined above, along with the many other reforms recommended in the Report. At the time of writing, there is no word on when we can expect a rollout of any of the proposed reforms. However, if implemented, the pre-trial procedure reforms should be welcomed by the employment law bar.
About the Author
Mitchell Rose is a Toronto-area mediator and arbitrator of employment law disputes. He is the former Chair of the OBA’s Alternative Dispute Resolution Section, and he is the current Secretary of the Labour & Employment Law Section. He welcomes your questions and comments at mitch@mitchellrose.ca.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.