Civil Litigation

Mandated discovery plans will only add delay to litigation

By AdvocateDaily.com Staff

A recent Ontario Superior Court decision that demands parties sit down and identify relevant documents and make a discovery plan is an invitation for more delay in the litigation process, Toronto litigator Michael Lesage tells AdvocateDaily.com.

Lesage, who practises insurance, business law, personal injury, malpractice and other liabilities at Michael’s Law Firm, says the ruling in a dispute involving a flooded business and its insurers is an example of courts striving to ensure that even flawed procedures must now “be executed perfectly.”

Canadian Underwriter reports the business sued its insurers for breach of contract linked to a flood that occurred on its premises.

“That action didn’t even reach the earliest stage of discovery before the business took its insurers to court again — this time over a conflict about the initial discovery plan,” the article states.

The business objected to the insurers’ request for a “seven-page itemized list of documents” and preferred to limit the scope of document production to the boilerplate required under Rule 30.03 of Ontario’s Rules of Civil Procedure.

The problem was how the discovery process was framed, says Lesage, who was not involved in the matter and comments generally.

Discovery is the step following the filing of a claim by a plaintiff and the subsequent statement of defence from the respondent and the associated affidavits supporting their positions, he notes.

“It takes place outside a courtroom without a judge in a meeting room at a third-party office with both parties and their counsel,” Lesage says. “Each party is questioned, and a court reporter creates a transcript.”

Those transcripts, he says, form part of the court record and counsel may refer to what is said in court — if and when the case proceeds to trial. However, as many cases don’t go to trial, he says there’s reluctance to invest resources in making a detailed discovery plan.

The disagreement in the matter at hand was over what documents should be produced so that each side could examine them and then ask the parties questions during the discovery process.

They couldn’t agree and went to court for direction, Lesage says.

The case master wrote: “It is not sufficient for a party to simply state in their discovery plan that they will produce what is relevant. In my view, this is not the appropriate approach to discovery planning.

“The point of requiring parties to agree to a discovery plan is to discourage the historical murder mystery approach to litigation. The old approach to discovery was to meander through the plot with the hope of finding out ‘who dunnit,’” she stated,

Lesage notes that Rule 29.1 of the Rules of Civil Procedure was changed in 2010 to require all parties to an action to agree to a discovery plan if they intend to obtain evidence through documents, oral examination, inspection of property, medical examination or examination for discovery by written questions.

“The issue is what is considered relevant to the case,” he says. “That will vary according to your role as plaintiff or respondent.”

Also, Lesage says, the Supreme Court of Canada ruled in 2014 that all legal actions should be conducted proportionally to what’s at stake.

The demands for discovery plans have only added to the resources required to litigate, Lesage says, because it’s a clumsy process. As a result, in the early stages, the plaintiff’s counsel will proffer a long list of documents be produced.

“What’s relevant?” he says. “Two different people looking at relevance might have two opinions.”

If the parties can’t agree on the documents and their relevance, the process gets bogged down, Lesage says.

The difficulty is in knowing what documents exist, he says.

“If you are suing the maker of a three-wheeled car and they have an internal report that says these cars are dangerous and they ignored it, that report is certainly relevant to you,” Lesage says. “But unless you know it exists, you can’t depend on the other side deciding it’s relevant because it hurts their case.”

In the matter at hand, the court refused to decide what was relevant because the parties had not yet agreed on a discovery plan.

Litigating in the digital age has only further complicated demands for documents because emails can be demanded, Lesage says.

Most counsel tend to ignore actually making a discovery plan, he says, because it ends up being a back-and-forth discussion over what’s acceptable and what isn’t, with demands for further production added in.

“Counsel tend to view this as not something you want to spend a large amount of time and effort on if the documents may not end up being used at all,” Lesage says.

“In Ontario, they seem to have adopted the least efficient process for discovery. In my experience, it would be better to prescribe a generic process for a discovery plan with one or two pages and then apply it to all cases."

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