Hot Off the Bench: Discovery Plans – Means and Ends

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 [2013] 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.