Hot Off the Bench: Co-operation and Documentation – Navigating Discovery Plans

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:

• The court should intervene when a party fails to co-operate in discussing a discovery plan or if the parties cannot agree on one (para. 52).
• Where there is evidence the parties have been co-operating (here, evidenced by the production of a black-lined draft version of a discovery plan, the court should not impose one (paras. 50 and 52).
• The court can impose a discovery plan based on the closed pleadings regardless of any proposed or pending motions, which will not operate to “stay” all steps under a discovery plan (para. 54).
• If a party takes the position it will not comply with the discovery plan until a pending motion is determined, the court may exercise its discretion to determine required compliance in the circumstances, having examined procedural history, the nature of the discovery plan and the substance of the motion (para. 54).

​This decision underscores the need for parties to co-operate, to document that co-operation, and to accept that discovery plans are not optional.