CJR Final Report, Section 6: Commencement of Proceedings

While we would accept the need for some well-established exceptions to be retained,

it is difficult to see why the scheme for starting proceedings should be of such

complexity. Why is it necessary to distinguish between cases where writs or

originating summonses are mandatory and cases where they are optional Why

require originating motions and petitions to be used in other cases, excluding

therefrom use of writs and originating summonses

The complication seems particularly unnecessary since O 2 r 1(3) makes it clear that:-

"The Court shall not wholly set aside any proceedings or the writ or other originating process

by which they were begun on the ground that the proceedings were required by any of these

rules to be begun by an originating process other than the one employed."

Furthermore, O 2 r 1(1) provides that any procedural failures in beginning or

purporting to begin any proceedings are merely irregularities and do not nullify the

proceedings or any step taken in them. Accordingly, although some of the rules are

couched in mandatory terms, non-compliance is of relative insignificance

at worst

perhaps sounding in an unfavourable costs order.

It is our view that it ought to be sufficient for the rules to adopt the approach of O 5

r 4(2), giving guidance as to when writs and when originating summonses are

appropriate, without making it mandatory to use either mode of commencement in

relation to any particular types of claims. The rules could simply state that the writ

should generally be used where it is likely that factual questions will be in dispute,

making it desirable that there be pleadings to set out each side's factual case and

providing the framework for discovery, witness statements, cross-examination and so

forth, bearing on those issues. Conversely, the rules might state that originating

summonses are appropriate where there is unlikely to be any substantial dispute of

fact, such as where the sole or principal question at issue is one of law or construction.