Resolving Questions of Law : A Modern Approach to Rule 21

Ontario's system of civil procedure requires what the Supreme Court of Canada calls a culture shift, moving away from relying on trials as the dominant means of resolving disputes. Earlier judicial intervention through alternative processes will promote greater efficiency and access to justice, and this can be achieved without sacrificing the fairness of the process. Judges in a variety of different contexts have shown that they are more than capable of resolving novel or complex questions of law on motions. This should become, through both jurisprudential and regulatory change, the new approach to Rule 21 motions. The “plain and obvious” test is a legacy of history – a product of a different judicial age. The various reasons articulated in its support no longer withstand scrutiny and as a result it needs to be replaced