Why proportionality matters in commercial litigation
Litigation can consume more than the dispute is worth. Courts know this, and for more than a decade they have been telling litigants and lawyers to do something about it.
Proportionality is now a rule of procedure in both the Ontario and Federal courts. For a business, it is also a way of making decisions.
The courts mean it
In Hryniak v Mauldin, 2014 SCC 7, the Supreme Court of Canada called for a culture shift. The full trial should no longer be the default. A fair process is one that reaches a just result in a way that is timely and affordable, and that is not always the most elaborate one.
Ontario's rules direct courts to make orders proportionate to the importance and complexity of the issues and the amount involved. The Federal Courts Rules, SOR/98-106, r 3, require that they be applied with consideration to proportionality, including the proceeding's complexity, the importance of the issues and the amount in dispute.
Ontario is going further. The Civil Rules Review's final report, released in December 2025, recommends restructuring civil procedure around earlier exchange of evidence, less discovery and fewer motions. As of this writing, some discrete amendments are in force. The structural reforms are not, and are expected to arrive in stages.
How it shows up in practice
Choice of procedure. An application instead of an action. Summary judgment or summary trial instead of a full trial. Simplified procedures for money claims up to $200,000 in Ontario and $100,000 in the Federal Court.
Discovery. Courts will refuse discovery whose cost outweighs its value, and expect parties to agree on its scope.
Experts. Limits on how many, and scrutiny of whether each is needed.
Costs. Courts consider what the losing party could reasonably have expected to pay. An over-lawyered win may not be fully recovered.
Offers to settle. In both courts, a formal offer that the other side fails to beat can shift costs significantly.
Four questions for every step
What is this step meant to achieve?
What will it cost in fees, management time and disruption?
How likely is it to work, and what do we gain if it does?
Is there a cheaper way to the same place?
A motion that wins a point without moving the case toward resolution fails this test, however satisfying the win.
Proportionality is not minimalism
Proportionality does not mean always doing less. The measure includes importance, not just dollars.
A claim of modest size may threaten the core brand, a key customer relationship or ownership of the company's main technology. A serious effort is proportionate to that. Under-preparing an injunction motion that will decide the case is a false economy.
The discipline is matching effort to what matters, and declining to spend on what does not.
What to ask your lawyer
A budget by phase, with the assumptions stated.
The points at which the strategy will be reassessed.
A realistic net recovery, after the costs that will not come back.
The earliest point at which the case could resolve, and what it would take to get there.
Good answers to those questions are a reasonable test of whether a case is being run proportionately.
This post is general information about Canadian law. It is not legal advice about your situation.
