By Kris Bonn
Law360 Canada (July 22, 2025, 2:15 PM EDT) — The Ontario Civil Rules Review Working Group (CRRW) has recently proposed significant changes to the Ontario Rules of Civil Procedure, aiming to streamline and modernize the litigation process. Among the most controversial of these proposed changes is the elimination of oral examinations for discovery, to be replaced by sworn written statements.
While the intent behind these changes is to reduce delays and costs associated with civil litigation, they raise several ethical concerns, particularly for personal injury lawyers.
While reducing litigation costs and delays is commendable, eliminating oral discoveries will not achieve these goals and raises several ethical issues, such as lawyers’ competing ethical duties to competently and zealously represent their clients versus lawyers’ duties to the administration of justice; lawyers’ duty to protect their clients’ privacy interests while abiding the new disclosure requirements and access to justice.
Oral discovery has long been a cornerstone of the litigation process in personal injury cases. It allows lawyers to question opposing parties under oath, providing an opportunity to uncover critical information that may not be evident from documents alone. This process helps to clarify the facts, narrow the issues and often leads to settlements without the need for a trial. Eliminating oral discoveries deprives parties — particularly plaintiffs in personal injury and medical malpractice cases— of a fair opportunity to present their cases.
CRRW proposes replacing oral discovery with the “up-front evidence model” requiring written affidavits and witness statements produced within six months of initiating an action. However, requiring parties, especially plaintiffs, to commit to statements prematurely raises several ethical concerns.
Bahtiar_maulana: ISTOCKPHOTO.COM
Witness recollections can evolve, and injuries, particularly in medical or trauma cases, often require time to be fully understood. Rigid deadlines for sworn statements create undue pressure and could inadvertently lead to incomplete or misleading evidence, compromising counsel’s ethical duties of candour and accuracy.
Replacing oral discovery with sworn affidavits significantly increases the ethical conflict on lawyers to intentionally or unintentionally craft or shape witness and party evidence. Lawyers will face pressure from clients to present facts advantageous to their theory of the case and leave out facts that hurt their case. Without oral discovery, there is no effective check against the potential manipulation of witness testimony through carefully scripted affidavits prepared by lawyers. This heightened risk has the potential to undermine public confidence in the fairness and integrity of the civil justice system and places lawyers in ethically precarious positions.
Moreover, the shift from relevance-based document disclosure to a reliance-based system severely restricts the ability of lawyers to fulfil their duties to thoroughly investigate and advocate effectively. Lawyers have an ethical obligation to examine all potentially relevant evidence to advance their client’s interests.
Limiting disclosure to only those documents a party intends to rely on — or known adverse documents — narrows the scope of investigation, potentially obscuring critical information necessary for fair resolution. Lawyers will be relying on their own clients to disclose all known adverse documents and will have the ethical dilemma of having to question their own clients to ensure that all adverse documents are produced to the other side. Is it realistic to expect a lawyer to question their own clients as thoroughly as an opposing lawyer would during an examination for discovery?
Perhaps the most ethically fraught aspect is the proposed pre-litigation protocols (PLPs) requiring plaintiffs to disclose sensitive information, including medical and financial records, to defendants before litigation even commences.
For victims of sexual abuse, medical malpractice or severe personal injury, the mandatory disclosure of deeply personal information directly to the opposing party, often unrepresented and without safeguards, violates fundamental privacy rights and imposes a difficult ethical burden on counsel. Lawyers have a duty to protect client confidentiality and privacy; compelling them to breach this duty as a precondition to litigation is ethically problematic.
Additionally, these protocols inadvertently erect new barriers to justice. Many potential plaintiffs, intimidated by premature disclosure demands, might simply abandon their claims, leaving legitimate plaintiffs without any redress. Lawyers, too, may find ethical obligations to preserve client dignity irreconcilable with procedural demands, resulting in fewer lawyers willing to take on these cases, disproportionately impacting rural or economically disadvantaged communities.
The way forward must prioritize true access to justice — ethical reforms that enhance, rather than diminish, the capacity of lawyers to represent clients effectively. Oral discoveries, though perhaps streamlined, must remain. Disclosure rules must balance efficiency with thoroughness. Pre-litigation protocols should protect privacy and dignity, rather than erode them.
We cannot allow well-intentioned reforms to compromise ethical standards and access to justice.
Kris Bonn is the managing partner at Bonn Law, a firm with offices in Belleville, Ont., and Trenton, Ont., that focuses on helping people with personal injury cases, medical malpractice and long-term disability denials. Bonn is the president of the Brain Injury Association Quinte District and the past president of the Ontario Trial Lawyers Association.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.