Uncooperative Litigants Beware – Discovery Plans Are Not Optional

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.