Litigants who are still operating under the assumption that meet and confer sessions/discovery plans are merely optional should take note. Recent case law under the new Ontario Rule 29.1.03 confirms that courts are willing and able to mandate discovery plans.
In TELUS Communications Company v. Sharp, 2010 ONSC 2878 (CanLII), Master Donald E. Short considered the scope of Rule 29.1.03, requiring that parties to an action agree to a discovery plan. The defendant in the case had failed to serve an Affidavit of Documents or to communicate with the plaintiff regarding his availability for discoveries.
Noting that the language of the applicable sub-sections is mandatory (”the parties to the action shall agree to a discovery plan”), Master Short turned to the issue of what occurs when the parties fail to make the directed agreement. He noted that while the new Rules address some of the consequences of a failure to agree on a Discovery Plan, including the ability of the court to refuse to grant any relief or costs, they do not provide specific guidance with respect to the imposition of a plan.
Expressly citing sub-Rules 1.04(1) and (2) which address the General Principle and Proportionality provisions of the Rules, and noting that where specific matters are not provided for in the rules, determination by analogy shall be utilized, Master Short concluded he had the authority to impose a Discovery Plan upon an unwilling litigant.
It is gratifying to see the courts embracing the principles of cooperation and proportionality in the discovery context. Stay tuned as the Ontario courts consider and rule upon other cases under the 2010 amendments to the Ontario Rules of Civil Procedure.
Amendments to the Ontario Rules of Civil Procedure came into effect on January 1st, 2010. Since January 1, 2010 Wortzman Nickle has been busy attending Meet and Confer sessions with our clients and advising them on discovery plans.
Most importantly, Ontario has now formally adopted the principle of “Proportionality” and if all goes as planned, the culture of litigation in Ontario will be changing as well.
The new Ontario Rules adopt the Sedona Canada Principles and require the parties to agree upon a “Discovery Plan” (Rule 29.1.03) which includes the scope of discovery, timing for delivery of each party’s affidavit of documents, information with respect to the costs and manner for production, names of the persons who will be produced and any other information that will facilitate an expeditious, cost–effective discovery and ensure that the process is “proportionate” to the importance and complexity of the action.
Rule 1.04(1.1) will give judges the mandate to “make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved”. The new Rules further entrench “Proportionality” into the discovery process by providing the court with guidelines to consider when deciding whether a party must answer a question or produce a document (Rules 29.2.03):
The Supreme Court of Canada recently considered the principle of proportionality in Marcotte v. Longueil (City), 2009 SCC 43 (CanLII). Although the decision deals with a class action case in Quebec, the majority of the Court affirmed that the principle of proportionality confers a real power on the courts, and is not just limited to a principle of interpretation. The Supreme Court further held that proportionality is a valuable source of the courts’ power to intervene in case management to ensure that the litigation is consistent with the principles of good faith and balance between litigants.
The courts have always had the discretion to either expand or restrict discovery and production. (See the recent decision of Justice Cullity in Pearson v. Inco Limited, 2009 CanLII 37928 (On S.C.).) The new Ontario Rules, however, charge the courts with a more active role.
Lawyers beware – the days of the “document dump” are over. Similarly, the days of making unreasonable production requests are over. The new Ontario Rules require counsel to co-operate and work together to come up with a Discovery Plan. If they are unable to do so, the courts will intervene and apply the principle of proportionality in order to ensure that actions are not extended for years unnecessarily thereby increasing costs astronomically.
If you require assistance with your Discovery Plan, contact Wortzman Nickle.
discovery plan | admin July 12, 2010 | 
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