Discovery Plans – Ontario Courts Prefer Agreement

Ontario courts continue to urge parties to agree on discovery plans, including making amendments where necessary during the litigation.  In considering a request for further examination of a witness from Italy in Fincantieri Marine Systems North America Inc. v. Anmar Energy Ltd. [2015] O.J. No. 205, Master MacLeod emphasized that under the Ontario Rules, parties are expected to negotiate a discovery plan, which is amended as required.  Parties should also consider the use of appropriate technology to reduce costs, save time and ensure that the objective of limited focused discovery is met.

While the Master was open to condoning the use of appropriate technology for the testimony, he stated that it might be more efficient to have the witness return to Canada.  Ultimately, he refrained from making a determination and asked counsel to meet about an amended discovery plan.

But what if the parties cannot agree on a discovery plan?  Ontario courts also recognize that sometimes, motions to settle discovery plans are necessary.  For example, in determining costs of the plaintiff’s motion to finalize the discovery plan in Spina v. Shoppers Drug Mart Inc. [2015] O.J. No. 203, Perell, J. held that: “It is preferable, of course, if parties can avoid motions about discovery plans, but a party seeking access to justice and a proper determination of his or her claim or defence ought not to be automatically  discouraged from having the court settle the discovery plan by fear of having to immediately pay costs, nor should a party be automatically encouraged to bring motions to settle a discovery plan by the prospect of an immediate costs award”.

Perell J. also noted that in some cases it is appropriate to order costs in the cause (whereby the party awarded costs of the proceeding is also awarded the costs of the motion) than forthwith to the successful party.  He explained that an award of costs in the cause connects the disincentives and incentives of the interlocutory step with the disincentives and incentives of making or defending the claim.

​Bottom line:  Ideally parties will agree to a discovery plan, including whether technology can be leveraged to minimize costs.  However, if parties cannot agree on a plan, a motion may be necessary.  Depending on the circumstances, the court may award costs in the cause, instead of costs payable forthwith.