Major Changes Coming to IP Litigation and Technology Related Disputes in Ontario in 2026

On April 1, 2025 a working group of lawyers and judges released its Phase 2 Consultation Paper (the “Paper”)  proposing a massive overhaul to the rules which govern litigation in Ontario, the Rules of Civil Procedure. The proposed reforms would apply to all civil cases in the Ontario Superior Court of Justice, excluding the Small Claims Court. Modifications would also apply to certain types of proceedings such as bankruptcy and insolvency proceedings. The Paper follows the working group’s Phase 1 Report, released in May 2024, which outlined potential areas of focus for reform.

With the goal of making civil court proceedings more efficient, affordable and accessible, the working group has recommended switching from the present model, where parties and their counsel control the pace, to one that is governed by the Court, all with a view to bringing matters to trial within two years of commencement.

Among other things, the most significant changes outlined in the Paper include:

1. Upfront Exchange of Evidence: a so-called “evidence-first” model comparable to that which exists in some other common law jurisdictions where parties must begin producing their evidence when they serve their pleadings;
2. Elimination of Examinations for Discovery: representatives of parties will no longer be required to attend to answer under oath questions asked by opposing counsel.  This will be replaced with the early exchange of written witness statements;
3. Limiting Document Production: removal of the requirement to produce all documents relevant to the case, and instead only requiring parties to produce documents they intend to rely on to prove their case and any known adverse documents;
4. Extension of Basic Limitation Period: extending the basic limitation period as set out in Ontario’s Limitations Act, 2002 to three years instead of two for all civil actions;
5. Expanded Methods of Service: allowing service of originating processes by email; and
6. Heightened Consequences for Delay: missing a hearing date or deadline will result in significant consequences including striking a party’s pleadings and costs payable to the opposing party.

While the working group is soliciting comments from stakeholders in Ontario regarding the proposed reforms until mid-June, their intention is to deliver a final proposal in July 2025 with the proposed reforms coming into effect as soon as 2026. For now, none of the proposed changes are final.

The significance of these proposed changes to the litigation of IP disputes may be high.  In Canada, the provincial superior courts such as those in Ontario share concurrent jurisdiction with the Federal Court of Canada for most (but not all) IP matters.  Certain IP disputes, such as alleged breaches of confidential information, or disputes which often have both an IP and commercial element, such as franchise disputes, generally must be litigated in provincial superior courts due to the lack of jurisdiction of the Federal Court of Canada to deal with the entirety or certain elements of the dispute.

As the most populous province in Canada, many IP disputes are litigated in Ontario’s superior courts.

The proposed extended limitation period aligns with the prescription period under the Copyright Act, despite minor differences in how discoverability is defined.  However, in contrast to litigation such as wrongful dismissal claims or breach of contract claims, in some IP cases, much of the evidence necessary to prove liability (and almost certainly in respect of a claim for an accounting of profits) requires access to information and documents not in the possession of the plaintiff at the time the claim is filed. The evidence-first model and absence of oral discovery may make it more challenging for plaintiffs in IP cases to assert their claims in Ontario Court and in certain cases, influence the decision of whether to litigate in Ontario courts or in Federal Court.

Moreover, the impact of changes such as the elimination of examinations for discovery and the limits on document production are unlikely to be limited only to IP litigation and may have profound effects on technology-related disputes where often, as in some IP cases, essential information will be in the possession or knowledge of the opposing party. For instance, in a commercial dispute where the plaintiff customer is making a claim based on substandard system performance, critical information about the systems may only be in the possession of the defendant service provider and not easily accessible to the customer in the absence of thorough examinations for discovery and comprehensive document disclosure obligations.

Ontario-based IP and technology lawyers will be carefully monitoring the final recommendations of the working group to see what and when changes to litigation practice in Ontario are implemented.

Summary By: Gary Daniel, Richard Austin and Victoria Di Felice