Ontario counsel have been slow to adopt discovery plans since their introduction in the rule amendments of January 2010. In many cases, when they are utilized, the plans do not cover all of the required aspects of discovery, with the result that they have only marginal utility.
Ontario’s courts are taking notice. This blog has covered a variety of cases over the past eighteen months regarding the mandatory nature of discovery plans, and the expected level of collaboration between counsel.
Most recently, in the decision of Passy Estate v. Forrest-Cluney  O.J. No. 2539, the court confirms that discovery plans are not to be executed just for the sake of adhering to the “rules”. Instead, Master MacLeod notes that the Rules of Civil Procedure should be “the servants of justice and not its master”, meaning that “the rules are not ends in themselves.” He states:
“The important thing about discovery planning and proportionality is the intention that the parties develop a customized discovery process appropriate to each action. Though the discovery plan is to be reduced to writing, the objective is not to create a document but to seriously consider the needs of the case and to engage in a dialogue to keep costs down while nevertheless ensuring sufficient disclosure to reach a just result. Through the discovery planning process the parties are encouraged to take a flexible approach to discovery and to only use those processes that are necessary and justified given what is at stake.” (para. 26)
Lawyers generally like rules and checking off items on a list. However, the value in engaging in the meet and confer/discovery plan negotiation process is to ensure the discovery process is both meaningful (obtains the required evidence) and proportionate (in a timely fashion, at a reasonable cost given the scope of the case).
In short, simply going through the motions of negotiating a plan and rendering an agreement to writing doesn’t meet the objective, even if you can cross one more item off of your litigation list.
Susan Wortzman is the program director of this inaugural program. On May 14th, Chuck Rothman will present on the topic of “Technology Assisted Review”.
Download the Presentation PDF File HERE
Still believe that discovery plans are optional? Think again.
In a decision released on May 21, 2013 (Cash Store Financial Services Inc. v. National Money Mart Co. [2013 O.J. No. 2275), Master Glustein re-confirms that the courts will impose discovery plans and provides some useful guidance on when the courts will elect to do so.
The defendant brought a motion for an order granting leave to amend its pleading and an order imposing a discovery plan. The plaintiff consented to a number of the amendments, but sought an adjournment on the balance pending a proposed cross-motion to strike various parts of the Statement of Defence. The plaintiff took the position that the court should not impose a discovery plan nor a discovery timetable until its proposed motion was determined.
Master Glustein ultimately approved the amendments, and a timetable for discovery, but held that it was premature to impose a discovery plan on the parties, on the following basis:
This decision underscores the need for parties to co-operate, to document that co-operation, and to accept that discovery plans are not optional.
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