Report of the Task Force on Discovery Process, Executive Summary

Superior Court of Justice / Ministry of the Attorney General

EXECUTIVE SUMMARY

Published by the

Task Force on the Discovery Process in Ontario
November 2003

TABLE OF CONTENTS

Introduction
Guiding Principles
Methodology
Summary of Findings and Recommendations
1. Overview
2. Discovery Management
3. Scope of Discovery
4. Adequacy and Timing of Documentary Disclosure and Production
5. Production of Documents in the Possession of Non-Parties
6. Discovery of Electronic Documents
7. Oral Discovery
8. Written Discovery
9. Examination of Corporate Representatives and Partners
10. Examination of Non-Parties
11. Discovery of Expert Evidence
12. Undertakings and Refusals
13. Discovery Disputes
14. Enforcement of Discovery Obligations
15. Principles of Efficiency and Professionalism
16. Best Practices Manual
17. Other Matters
Conclusion

INTRODUCTION

The Discovery Task Force was appointed by the Attorney General and the Chief Justice of the Superior Court of Justice in 2001 to undertake a comprehensive review of Ontario's civil discovery process, identify problems with the current process and recommend options for reform.

The impetus for this review originated with the Civil Justice Review of 1995, which questioned whether the discovery process had become too expensive and time-consuming, and proposed that consideration be given to methods for achieving a more efficient process, while preserving essential disclosure principles.

The Task Force was mandated to consider all aspects of Ontario's discovery process, including documentary, written and oral discovery, and discovery related motions, and to develop options for a more efficient process.

The Task Force is comprised of the following members and staff:

• Judicial representatives, appointed by the Chief Justice of the Superior Court of Justice:
  • Justice Colin Campbell, Superior Court of Justice, Toronto Region (Chair)
  • Justice Catherine Aitken, Superior Court of Justice, East Region
• Ministry of the Attorney General representatives, appointed by the Attorney General:
  • Debra Paulseth, Assistant Deputy Attorney General, Court Services Division (Associate Chair)
  • Ann Merritt, Director, Civil/Family Policy and Programs Branch, Court Services Division
• Bar representatives, jointly appointed by the Chief Justice of the Superior Court of Justice and the Attorney General:
  • Kristopher H. Knutsen, Q. C., Carrell & Partners, Thunder Bay
  • Susan Wortzman, Lerner & Associates LLP, Toronto
• Project Director: Susan Charendoff, Lead Counsel, Civil/Family Policy and Programs Branch, Court Services Division
• Research Counsel: Mohan Sharma, Counsel, Civil/Family Policy and Programs Branch, Court Services Division
• Research Assistants (Civil/Family Policy and Programs Branch, Court Services Division): Nayla Mitha, Counsel; Andrea Bell, Articling Student; Yvonne Parkhill, Articling Student

GUIDING PRINCIPLES

The Task Force established the following "guiding principles" to provide a framework within which to assess reform options:

(i) Reforms should promote access to justice for both represented and unrepresented litigants by reducing unnecessary delay and cost associated with discovery.

(ii) Reforms should encourage parties to engage in early discovery planning and to resolve discovery issues cooperatively, with timely recourse to the court where intervention is warranted (for example in complex or problem cases).

(iii) Reforms should apply fairly in all parts of the province and be feasible in both case managed and non-case managed proceedings. Province-wide predictability with respect to procedures is important.

(iv) Reforms should promote timely and cost-effective disclosure, production and examination for discovery.

(v) Reforms should not impose unnecessary procedural steps.

(vi) The discovery process should not be "micro-managed" through the rules.

(vii) Reforms should reduce and streamline discovery related motions.

(viii) Reforms can only be effective if they have the support of both the bench and bar.

(ix) Rule changes alone cannot improve the discovery process. Issues relating to civility, professionalism and competence must also be addressed through legal education and training.

METHODOLOGY

In conducting its review, the Task Force employed a variety of techniques to gather both qualitative and quantitative data, including:

• Distribution of a consultation paper to judges, bar associations, key client organizations and academics throughout the province to elicit feedback on Ontario's discovery process and options for reform (372 responses were reviewed);
• Solicitation of written submissions from bar organizations, lawyers and other individuals (33 submissions were reviewed);
• Consultation meetings and focus groups with lawyers, case management masters and judicial representatives throughout the province;
• Three-month study of motions activity in six courts in different regions, to compare discovery related motions to other motions (3,660 responses were analyzed);
• Distribution of case specific questionnaires in a random sample of cases in four courts in different regions to elicit information about respondents' experience with discovery (1,240 responses were analyzed); and
• Review of recent civil justice studies and discovery processes in other jurisdictions.

SUMMARY OF FINDINGS AND RECOMMENDATIONS

1. OVERVIEW

The findings indicate that while many lawyers are satisfied with the status quo, many others consider the costs and delays associated with discovery to be an impediment to access to justice. Several litigants recounted their difficult and costly experiences with discovery.

Discovery problems do not arise in the majority of cases, but primarily in larger, "complex" cases or where there is a lack of cooperation between opposing counsel. A common perception is that there are fewer discovery related difficulties where the bar is collegial, for example in smaller geographical communities or within specialty bars. Another prevalent view is that greater judicial intervention and more consistent enforcement of discovery obligations would go a long way to address problem situations.

Key problems identified in the review relate to: incomplete, untimely, disorderly or excessive disclosure and production; excessive requests for information and documents; difficulties and delays in scheduling discoveries; untimely or insufficient answers to undertakings; improper refusals; disagreements as to the scope of discovery; and delays in gaining access to the court for the resolution of disputes. While there is no evidence to warrant a fundamental overhaul of Ontario's discovery process, the findings point to the need for reform on two fronts:

(i) Incorporation of enhanced cost and time saving mechanisms into the Rules of Civil Procedure, including:

• Discovery management mechanisms for case managed and non-case managed proceedings;
• Narrower scope of discovery;
• Enhanced early disclosure and production requirements;
• Default time limit on oral discovery;
• Written questions permitted as a supplement to oral discovery;
• Improved access to discovery of non-parties, corporate representatives and experts;
• New timelines for certain discovery steps (including documentary disclosure, production of expert reports, completion of undertakings and answering refusals);
• Standardized, simplified process for resolving discovery disputes; and
• Enunciation of principles of efficiency and professionalism.

(Ii) Development and dissemination of a "best practices" manual containing practical guidelines on the conduct of discovery, in order to:

• Promote among lawyers a broader acceptance of the value of collaboration and an appreciation for cost-effective and efficient ways to conduct discovery;
• Establish practical guidelines outside of the rules (and not enforceable per se) on the conduct of discovery generally and in specific types of cases; and
• Facilitate recognition by the profession and the judiciary of acceptable "norms" for the conduct of discovery.

2. DISCOVERY MANAGEMENT

Issue
What, if any, discovery management mechanisms would be beneficial to Ontario's discovery process?

Discussion
Discovery management has two key features. The first is discovery planning, whereby counsel (and/or the parties, where unrepresented) meet early in the case to map out the discovery process and reach an understanding on such matters as the scope of discoverable issues and information, the manner of production, the persons to be examined, the mode of examination, the need for expert evidence, and the timetable for disclosure, production and examinations. The second feature is access to judicial intervention where parties are unable to reach a consensus on a discovery plan, or where a case otherwise requires court assistance in managing the discovery process.

Ontario's discovery rules do not expressly provide for pre-discovery planning by the parties or court management of the discovery process. While many lawyers already plan how and when production and examinations will occur, many others do not have meaningful discussions with opposing counsel prior to oral discovery. There is significant support for establishing a specific framework to standardize this practice and provide for judicial assistance where necessary.

The Task Force is of the view that the incorporation of discovery management mechanisms into Ontario's discovery process will assist in reducing many of the key problems identified in the review. Encouraging parties to reach a consensus on discovery matters - either on their own or with the court's intervention where necessary - will help to promote cooperation, ensure complete, timely, and orderly production of documents, clarify the scope of discovery, eliminate scheduling difficulties and delays and reduce the potential for protracted disputes.

Discovery Planning Best Practices
A discovery management scheme must not, however, create additional, unnecessary steps or costs in the majority of cases that are routine in nature. The Task Force recommends the establishment of best practices to encourage - rather than require - counsel to communicate in advance of discoveries, with the objective of discussing the most expeditious and cost-effective means to conduct discovery.

Court Assisted Discovery Planning
While voluntary discovery planning is adequate in most cases, those in which parties cannot agree on a discovery plan would benefit from limited court intervention to address a specific problem arising from a lack of cooperation among parties or counsel, or disagreement on a particular discovery issue. In these situations, access to the court is needed to assist the parties in creating a discovery plan. Under case management rule 77 in Toronto, Ottawa and Windsor, case conferences are routinely used with great success to resolve discovery planning and other discovery issues, even though not expressly provided for in rule 77. The Task Force recommends the introduction of case conferences on a province-wide basis to assist with discovery planning and the resolution of discovery disputes.

Individualized Discovery Management in Appropriate Cases
Finally, there is a need for access to individualized discovery management by the court in complex or otherwise difficult cases. The framework for discovery management exists in case managed courts, but there is no analogous provision elsewhere in the province. The Task Force recommends the introduction of a new rule to permit individualized management of the discovery process in appropriate cases, and the incorporation of case management mechanisms into the new discovery management rule.

Recommendations:

• Develop best practices for discovery planning, with a standard checklist of items to be addressed.
• Establish a new rule permitting case conferences to be convened in non-case managed locations, at the request of any party or on the court's initiative.
• Establish a new discovery rule permitting any party to seek a case conference for the purpose of resolving issues related to discovery planning and establishing a discovery plan.
• In rule 77.13(3), provide express authority for the court to require or create a discovery plan at a case conference.
• Establish a new discovery rule providing for individualized management of the discovery process in "appropriate" cases, based on the criteria listed in rule 77.09.1(5) (Assignment of Particular Judge).
• Expand the criteria in rule 77.09.1 (5) to include "nature of parties and whether they are represented."
• Authorize the court to designate a proceeding for individualized discovery management on the parties' consent, on the motion of any party, or on the court's initiative in "appropriate" cases, based on the criteria listed in rule 77.09.1(5).
• Incorporate case management mechanisms from rule 77 into the new discovery management rule, including case conferences (with express authority for the court to require or create a discovery plan at a case conference, assignment of a particular judge, and any case management powers needed to give effect to the rule).

3. SCOPE OF DISCOVERY

Issue
Should the current scope of discovery be narrowed?

Discussion
The scope of discovery is very broad. Rule 30.02(1) provides that "[e]very document relating to any matter in issue in an action" must be disclosed, and rule 31.06 (1) requires persons being examined to answer "any proper question relating to any matter in issue in the action", subject to privilege claims. Rule 30.03, which prescribes the requirements for affidavits of documents, mirrors this language. Courts have imposed extensive and far-reaching disclosure and production obligations. The test of relevance for purposes of discovery is whether there is a "semblance of relevance" to the issues disclosed in the proceedings.

The findings are mixed regarding the usefulness and desirability of narrowing the scope of discovery. Those in favour of limiting the scope of discovery have noted that the "semblance of relevance" test contributes to excessive document production, lengthy oral examinations and discovery abuse, all of which can make the process prohibitively expensive. Opponents have expressed concern that key evidence might not be obtained before trial, thereby preventing parties from knowing "the case to be met" and reducing the prospects of settlement. It is also argued that a new test will generate more disagreements, motions activity and judicial interpretations.

In order to balance these considerations, the Task Force recommends that the phrase "relating to any matter in issue in an action" in rules 30.02(1) and 31.06(1) be replaced with "relevant to any matter in issue in an action." It is anticipated that this change will provide a clear signal to the legal profession that restraint is to be used in the discovery process, thereby strengthening the objective that discovery be conducted with due regard to cost and efficiency. A narrower test will also help curb discovery abuse and eliminate areas of inquiry that cannot reasonably be considered relevant, even though they currently survive a "semblance of relevance" test. The new test will not impede the parties' ability to obtain information, but will oblige them to focus on information that is truly necessary. As part of the discovery planning process, counsel will be required to work out (on their own or with the court's assistance) what information is relevant.

In making this recommendation, the Task Force fully expects that there will be a continuing debate over the scope of discovery, and additional judicial interpretations of "relevant." However, as with its other recommendations, the Task Force is hopeful that the legal profession, with judicial support, will develop guidelines that anticipate in advance the scope of discovery and avoid disputes over relevance.

Recommendation:

• Narrow the scope of discovery. Replace the current "semblance of relevance" standard to a standard of "relevance" by modifying the phrase "relating to" any matter in issue in an action in rules 30.02(1), 30.03 and 31.06(1) with "relevant to" any matter in issue in an action.

4. ADEQUACY AND TIMING OF DOCUMENTARY DISCLOSURE AND PRODUCTION

Issue
What reforms would improve the adequacy and timeliness of disclosure and production?

Discussion
Under rule 30.03, a party must, within ten days after the close of pleadings, serve on all other parties an affidavit of documents that discloses all documents relating to any matter in issue in the action "that are or have been in the party's possession, control or power."

Some of the most significant problems reported to the Task Force relate to documentary discovery. The prevalence of incomplete, untimely, disorderly and excessive disclosure and production often lead to increased costs, delays and disputes in the discovery process. In addition, incomplete and untimely disclosure and production of relevant documents often result in a time-consuming, costly and inefficient "two-stage" discovery whereby further relevant documents are identified at the examination for discovery, necessitating a second round of examinations on those documents subsequently produced.

While many of these problems can be addressed by the discovery management mechanisms recommended earlier, there is also a need for refinements to the documentary discovery rule and the adoption of specific best practices for documentary discovery.

Timeframe for Exchange of Affidavit of Documents
The current timeframe for completing and serving an affidavit of documents is an unrealistic standard that cannot be met in many cases. The Task Force recommends a more generous "default" timeframe of 45 days. In so doing, the Task Force is mindful of the constraints of other fixed timelines in the rules, as well as the need for flexibility to enable an alternative time period to be agreed upon by the parties, or, where required, ordered by the court.

Early Production of Key Documents and Documents in the Possession of Non-Parties
The findings highlight the tension between early disclosure requirements under the rules and the adversarial tendency to limit disclosure to that which is helpful to the disclosing party's case. A balance must be struck between the level of production required early in a case to permit discovery, and the full production that may be required for trial. The Task Force recommends that, at a minimum, parties be required to produce with the pleadings documents referred to therein. As well, documents in the possession of non-parties upon which parties intend to rely should be listed.

Standard Early Production in Specific Case Types
In certain case types (including personal injury, medical malpractice, commercial, wrongful dismissal, and construction cases, among others) there are standard documents and information that can and should be routinely produced early in the litigation process. The Task Force recommends the development of best practices for the production of standard documents in these types of cases.

Manner of Disclosure and Production
Many lawyers routinely provide unsworn or incomplete affidavits, inadequate identification and descriptions of documents, and insufficient explanations as to the grounds for privilege claimed. The findings indicate that the discovery process would benefit greatly from more specificity and standardization in the rules as to the organization and content of the schedules to the affidavit of documents.

The Task Force recommends the creation of a standard form prescribing the information to be provided in the schedules to the affidavit, and the establishment of best practices to provide guidance to lawyers and unrepresented litigants in preparing for disclosure and production. Guidelines will encourage consultation among opposing parties about the most efficient and least costly manner of production, including consideration of joint books of production, scanning of documents into electronic format, and the use of litigation support software to aid in the cataloguing of documents.

Recommendations:

• Amend rule 30.03 (1) to require parties to exchange affidavits of documents within 45 days after the close of pleadings, subject to the parties' agreement otherwise or a court order.
• Amend rule 30 to require production of documents referred to in pleadings at the time pleadings are served, unless they have been produced previously.
• Add a new schedule to the affidavit of documents listing documents in the possession of non-parties that will be relied on by parties.
• Develop best practices for standard early documentary disclosure and production for specific case types.
• Replace Forms 30A and 30B with new standard forms for the schedules to the affidavits of documents, to include the following fields of information:
  • Date
  • Document type (e.g. letter, memo, contract, etc.)
  • Author
  • Recipient
  • Title of document or other description
  • Production number/page range
  • Identification of attachments, if any
  • Basis of privilege claimed
• Develop best practices for the manner of disclosure and productions.

5. PRODUCTION OF DOCUMENTS IN THE POSSESSION OF NON-PARTIES

Issue
Would enhanced access to documents in the possession of non-parties reduce cost and delay in the discovery process?

Discussion
Pursuant to rule 30.10(1), the court may compel a non-party to produce a document only where the court is satisfied that the document is relevant to a material issue in the action and that it would be unfair to require the party seeking production to proceed to trial without discovery of the document.

The need to obtain documents from non-parties is a factor that can lead to increased costs, delays or discovery disputes, particularly in negligence, medical malpractice, personal injury and motor vehicle cases. The requirement to demonstrate unfairness at trial is seen as an onerous requirement that often makes it difficult to obtain an order compelling production from a non-party, and that is inconsistent with the fact that the majority of cases settle without a trial. Obtaining production from non-parties through undertakings also generates disputes as to whether best efforts have been made by the producing party to obtain these documents. The Task Force recommends that the test for production of documents in the possession of non-parties be made less onerous, in order to improve the prospects of settlement.

Recommendation:

• Modify the test for production from non-parties in rule 30.10(1) by deleting the requirement to demonstrate that it would be "unfair to require the moving party to proceed to trial without having discovery of the document." Authorize the court to order production from non-parties where the document is relevant to a material issue in the action (as the rule currently provides) and where the court is satisfied that the document is not privileged and that its production would not be injurious to the public interest (new requirement).

6. DISCOVERY OF ELECTRONIC DOCUMENTS

Issue
What steps can be taken to promote the effective use of technology in the discovery process?

Discussion
Electronic discovery is a significant issue in a number of large and complex cases, and in time, will become significant in many other types of cases.

The Rules of Civil Procedure define documents broadly to include electronic documents. Pursuant to rule 1.03(1), " 'document' includes data and information in electronic form; 'electronic' includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means, and 'electronically' has a corresponding meaning." For the purposes of discovery, a document is defined in rules 30 and 31 to include "data and information recorded or stored by means of any device." The rules, however, go no further in defining the scope and manner of electronic document production. Parameters around the production of electronic documents are found primarily in case law.

Notwithstanding the growing sources of electronic documents, a large majority of lawyers have yet to fully recognize the impact of technology on the discovery process. The overall orientation of the profession towards print, combined with the absence of clear guidelines or rules on the scope and manner of electronic production, has meant that many lawyers remain unfamiliar with the obligation to produce electronic documents. They are also unfamiliar with the technology available to retrieve, exchange and produce documents in a more cost-effective and time saving manner than paper production. Retention of records, particularly electronic records, in the face of erasure policies or allegations of spoliation is an emerging issue.

The Task Force recommends that an accurate definition of the scope of electronic discovery be incorporated into both the discovery rules and into professional conduct rules; that proactive steps, including the development of best practices, be taken to encourage greater use of technology in the civil litigation process; and that a coordinated approach (both provincially and nationally) be taken in the establishment of standards for electronic discovery.

Recommendations:

• Amend rules 30.01 and 31.01 to include in the definition of document "data created and stored in electronic form."
• Amend rule 4.01(4) of the Law Society's Rules of Professional Conduct to include electronic documents in documentary disclosure, in appropriate cases.
• Develop best practices with respect to retention of electronic records and the scope, cost and manner of electronic documentary production.
• Following a period of monitoring the impact of best practices, review and revise the rules relating to documentary production.
• Participate in processes to establish national standards for electronic discovery.

7. ORAL DISCOVERY

Issue
How can oral discovery be made more efficient and cost-effective?

Discussion
Rule 31.02 provides that a party may examine a party adverse in interest by way of oral examination or written questions and answers, but not both, unless leave of the court is granted.

Based on the Task Force's findings, scheduling difficulties, delays in completing examinations, inadequate preparation for oral discovery, prolonged examinations and improper refusals based on relevance are seen as the key problems associated with oral discovery. There are also concerns that the cost of oral discovery is sometimes disproportionate to the value of the claim.

Right to Oral Discovery
Reliance on oral discovery is primarily a North American phenomenon that does not exist in other common law jurisdictions. While most members of the bench and bar consider oral discovery to be a critical component of the discovery process, several authorities have identified it as the most costly and time-consuming step in litigation, and have noted the need for controls. Steps have been taken in Ontario (and other Canadian jurisdictions) to restrict access to oral examinations in certain proceedings. For example, in cases governed by Ontario's Family Law Rules, no party may be "questioned" or examined for discovery unless an order of the court is first obtained. In addition, oral discovery has been eliminated for simplified procedure cases under rule 76.

While there are compelling arguments to support the elimination of or restrictions on access to oral discovery in civil matters, the Task Force is of the view this reform is unwarranted by the findings and would be met with significant opposition by the litigation bar. With the implementation of discovery planning and other reforms, many of the problems relating to oral discovery can be addressed.

Scheduling and Location of Examinations
As part of the recommended discovery planning process, counsel will be expected to make arrangements for the scheduling and location of oral discoveries, and if they are unable to agree, the assistance of the court can be obtained.

Duration of Oral Examinations
The findings suggest that one day of oral examination per party adverse in interest should be sufficient in most cases, and many lawyers are concerned about unduly lengthy examinations and the associated costs and delays. A variety of factors contribute to prolonged oral examinations, including lack of preparation or experience, irrelevant or repetitious questions, or in some cases, lawyers' billing targets. Many lawyers acknowledge that time limits are beneficial, in that they force counsel to consider how much time is realistically needed, to prepare adequately for oral discoveries, and to remain focused on relevant matters. Others have concerns about the inflexibility and arbitrariness of fixed time limits.

To balance these considerations, the Task Force recommends the introduction of a "default" maximum of one day per party adverse in interest, unless the parties agree otherwise. This recommendation will provide parties with the flexibility, in planning for discovery, to agree on a longer period where appropriate. If they are unable to agree, they may seek the court's assistance.

Deemed Admission of Authenticity
Rule 30.05 provides that the production of a document is not an admission of its relevance, but does not address the matter of its authenticity. Under rule 51.02, a party must serve a notice to admit documents in order to trigger the deemed admission of authenticity.

According to the findings, much time is wasted at discoveries simply confirming that copies of produced documents are authentic. The deemed admission process under rule 51.02 appears to be under-utilized in practice, and where used, is only employed shortly before trial.

A deemed admission of authenticity rule would minimize the time spent confirming the authenticity of produced documents. However, in developing such a rule, it is necessary to define the term "authenticity" and to identify an appropriate deemed admission period. In addition, there are concerns about the ease with which electronic documents can be altered, making it difficult or impossible to assess their authenticity from a description in the affidavit of documents. Similarly, it may be difficult to determine whether emails (including attachments) have been received by the intended recipient. In view of these concerns, the Task Force does not recommend any changes at this time, but recommends the establishment of best practices to encourage parties to enter into their own arrangements with respect to deemed authenticity. The Civil Rules Committee may wish to review this issue in the future.

Cross-Examination
The right to cross-examine at oral discovery was introduced as part of the 1985 amendments to the rules. On the whole, abusive examination is not a problem in most cases. Unnecessarily aggressive or uncivil cross-examinations - when they occur - tend to be a product of local legal culture, inexperience on the part of counsel, or the attitude or posturing of individual lawyers.

The Task Force does not recommend eliminating the right to cross-examine. In some cases, cross-examination can be essential to obtain information or admissions that may bring the action to an early resolution. Even if cross-examination were eliminated, the Task Force doubts this would significantly curtail the behaviour of lawyers who have a propensity for acting in an aggressive or abusive manner. In any event, the rules permit a party who is being subjected to abusive cross-examination to adjourn the examination, move for directions with respect to its continuation, and seek costs.

Video Recording of Oral Discovery
Although the rules permit examinations to be recorded by videotape or other similar means on the parties' consent or by order of the court, videotaping is rarely used in Ontario for this purpose. Most lawyers are uncomfortable with recording discoveries on video, and have concerns about access to and the cost of video technology, the accuracy of transcripts (particularly when several people speak at once), as well as the need for recording standards to ensure that the videotape is a fair representation of the parties' demeanour.

The Task Force does not make any recommendations at this time, but suggests that the Civil Rules Committee consider the capacity of video technology to enhance the discovery process. The Task Force also notes that video recordings (even where discovery evidence is transcribed by other means) may be useful in providing early responses to undertakings or dealing with refusals, and should be encouraged.

Discovery Planning and Best Practices for Oral Discovery
The Task Force anticipates that as part of the discovery planning process, parties will take steps to agree on the timing, duration and location of examinations, and to explore ways to maximize the efficiency and effectiveness of oral discovery. This might include a consideration of the potential for using agreed statements of fact, requests to admit, and demands for particulars to better clarify issues prior to oral discoveries. The Task Force recommends that best practices also be developed on the proper conduct of oral discovery, including such matters as preparation for examinations, proper questions, undertakings and refusals.

Recommendations:

• Amend rule 31 to provide that, subject to the parties' agreement otherwise or a court order, a party will have up to a maximum of one day to examine each party adverse in interest.
• Develop best practices with respect to deemed authenticity of documents.
• Civil Rules Committee to consider a review of the provisions relating to deemed authenticity of documents.
• Retain the right to cross-examine at oral examination for discovery.
• Do not introduce amendments to the rules at this time with respect to video recording of oral examinations for discovery.
• Develop best practices for the conduct of oral discovery.

8. WRITTEN DISCOVERY

Issue
Can written questions and answers be used more effectively as a discovery mechanism?

Discussion
The findings indicate that few lawyers use written discovery as an alternative to oral discovery, and none view it as an appropriate means of obtaining admissions. Many lawyers, however, consider examination by written questions and answers to be a valuable and cost-effective means of obtaining early disclosure of certain types of documents and information, which can later be examined on at oral discovery. Written discovery is seen as particularly useful in cases relying heavily on documentary evidence. It is also helpful in reducing the number of undertakings given at oral discoveries and the need for follow up questions on answers to undertakings.

Written Discovery in Conjunction with Oral Discovery
The Task Force is of the view that written discovery should be encouraged where it may abbreviate the length of oral examinations. The current rule, which requires a party to choose either written or oral discovery, is one factor that can prolong oral discovery.

It is recommended that the rule be changed to permit parties to agree to have both oral and written discovery (in addition to the current provision, which requires a court order). Through the discovery planning process, parties can select the most suitable mode or modes of examination for their case. In doing so, they would be expected to factor in cost, convenience and efficiency considerations. If they are unable to agree, any party could request the court to order both forms of discovery, so long as the court is satisfied that (a) examined parties will not be subjected to duplicative questions and (b) discovery will be conducted in a cost-effective manner.

The Task Force also recommends the development of best practices to support this reform. It is anticipated that best practices will lead to a consensus on when to use written discovery and how to craft questions and answers.

Time for Responding to Written Questions
The Task Force recommends amending rule 35.02 to extend the timeframe for responding to written questions from 15 days to 45 days from receipt of the questions. It is also recommended that the timeframe in rule 35.04(1) for serving an examining party's "further list of questions" be extended from ten to 15 days after receipt of answers (with no change to the current 15-day period for responding to the further list of questions). The objective of this proposal is to provide a more reasonable period for parties to respond to written questions, thereby reducing the potential for motions to compel responses.

Recommendations:

• Amend rule 31.02(1) to allow both oral and written discovery on parties' consent, or by court order, provided that there will not be duplication and that discovery will be conducted in a cost-effective manner.
• Include a sanction in rule 35.05 to address the situation where written discovery (whether consented to or ordered by the court in addition to oral discovery) proves to be duplicative or is not conducted in a cost-effective manner.
• Develop best practices for the use of written questions and answers.
• Amend rule 35.02 to extend the time for responding to written questions from 15 days to 45 days, subject to agreement of the parties otherwise or court order.
• Amend rule 35.04(1), to extend the time for serving a further list of written questions to 15 days, while retaining the current 15 days for responding to an examining party's further list of questions.

9. EXAMINATION OF CORPORATE REPRESENTATIVES AND PARTNERS

Issue
Should the discovery rules provide enhanced access to examination for discovery of corporate representatives and partners?

Discussion
Pursuant to rule 31.03(2) and (3), an examining party may examine any officer, director or employee on behalf of the corporation, but where any one of them has been examined, the examining party is not entitled to examine other officers, directors, or employees without leave of the court. The rule does not refer to former officers, directors or employees.

Under rule 31.03(4), where an action is brought by or against a partnership in the firm name, each person who was or is alleged to have been a partner may be examined.

According to the findings, Ontario's current restriction on the examination of corporate parties to one representative (unless leave is granted) may contribute to unnecessary expense and delay in the discovery process where the chosen representative has inadequate knowledge of all the facts in issue, or where several corporate representatives have personal knowledge of relevant key facts.

The current rule increases the risk of examining corporate representatives with inadequate knowledge, which may result in undertakings and a further round of questions. It is not uncommon for several individuals within a corporation to have direct knowledge of different issues that might arise in an action, and obtaining the first-hand testimony of more than one corporate representative may result in cost savings.

At the same time, the Task Force is cognizant of the potential for abuse or unintentional misuse of expanded rights of discovery, and does not propose unlimited rights to examine corporate representatives. Rather, and in keeping with its other recommendations, the Task Force is of the view that parties should be encouraged to come to their own agreement in selecting the appropriate representative(s) as part of their discovery planning efforts. It is therefore recommended that rule 31.03(2) and (3) be amended to permit parties to consent to the examination of more than one corporate representative with personal knowledge of relevant information, while retaining the court's authority to make such an order where parties are unable to agree.

The Task Force also recommends that rule 31.03(4) regarding the examination of partners be modified so as to be consistent with that for corporate representatives. This change will not diminish a party's right to examine each partner in a partnership where the action is brought by or against the partners individually.

The Task Force notes the difficulties that can arise for parties in situations where former officers, directors or employees (who may not be parties to an action) possess the best knowledge of the matters in issue. Given the importance of protecting the interests of non-parties, the Task Force believes that such individuals must be treated in the same manner as any other non-party, as discussed in the following section.

Recommendation:

• Where an action is brought by or against a corporation or a partnership in its firm name, amend rules 31.03(2), (3) and (4) to permit the examination of more than one corporate representative or partner with personal knowledge of relevant information, on the parties' consent, or by court order.

10. EXAMINATION OF NON-PARTIES

Issue
Should the discovery rules provide enhanced access to examination for discovery of non-parties?

Discussion
Non-parties may be examined only with leave of the court. An order granting leave shall not be made unless the court is satisfied that:

• The moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person he or she seeks to examine;
• It would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
• The examination will not,
  • i. unduly delay the commencement of the trial of the action;
  • ii. entail unreasonable expense for other parties; or
  • iii. result in unfairness to the person the moving party seeks to examine.

The current test for leave to examine non-parties is onerous, like the corresponding test for production from non-parties. Obtaining information from non-parties usually occurs through undertakings by the examined party, which can lead to further rounds of examination and undertakings, and disputes as to whether the examined party has exercised best efforts to obtain answers from the non-party.

The Task Force supports the policy rationale behind the current test. Unrestricted entitlement to examine non-parties could lead to discovery abuse, increased costs, unfairness to non-parties and more motion activity by non-parties who object to being examined. However, the Task Force recommends that the test be modified so as to be consistent with the test for documentary production from non-parties. The Task Force is confident that such a change will not compromise fairness to non-parties, given the express requirement in rule 31.10(2) to demonstrate that the examination will not result in unfairness to the person the moving party seeks to examine.

It is also recommended that best practices be developed to encourage parties to reach agreements on obtaining information from non-parties, for example through the combined use of written and oral examinations (with the approval of the non-party or with leave of the court). In certain cases, for example, it may be more cost-effective for parties to directly seek written answers to questions solely within the knowledge of non-parties, than to go through the process of putting questions to the examined party at the oral examination, preparing a list of undertakings, and forwarding them to the non-party.

Recommendations:

• Modify the test for examining non-parties in rule 31.10(2) by deleting the requirement to demonstrate that it would be "unfair to require the moving party to proceed to trial without having the opportunity of examining the person."
• Develop best practices to encourage parties to reach agreements on obtaining information from a non-party, subject to the non-party's consent or a court order.

11. DISCOVERY OF EXPERT EVIDENCE

Issue
Where experts are retained for the purpose of providing opinion evidence, how can the cost and delay associated with the discovery of such evidence be addressed?

Discussion
The pre-trial disclosure of expert findings, opinions, and conclusions is limited under the current rules to the disclosure of expert reports. Rule 53.03 requires a party who intends to call an expert witness to serve opposing parties with a copy of the expert's report not less than 90 days before the trial. A party who intends to call an expert to testify in response must serve a responding expert report not less than 60 days before trial. Any supplementary report must be served not less than 30 days before trial. These timelines may be extended or abridged by the judge or case management master at the pre-trial, or any conference under rule 77, or by the court on motion.

The rules do not provide for the pre-trial examination of an expert. Experts engaged by a party in preparation of contemplated or pending litigation are excluded as a class of non-parties who might otherwise be ordered to attend an examination for discovery. During an examination of an opposing party, a party is permitted to ask questions on experts' findings and opinions; however, a party being examined need not disclose the findings, opinions and conclusions of an expert engaged by the party where (1) they were obtained in preparation for litigation, and (2) the expert will not be called as a witness at trial.

Issues relating to the discovery of expert evidence highlight the tension between the underlying premise of the rules - that early disclosure will promote early resolution - and the adversarial practice of some lawyers to gain advantage by strategic, delayed disclosure.

The findings indicate that the timing of pre-trial disclosure of expert and medical reports, and the prohibition on the examination for discovery of experts are key problems. In a small number of complex cases, difficulties are caused by the limited disclosure requirements with respect to the factual basis of experts' findings, opinions and conclusions. The proliferation of expert reports is also an ongoing challenge.

Timing of Disclosure of Expert Reports
A significant proportion of lawyers are concerned about the untimely production of expert reports. The judiciary frequently grants extensions of time to accommodate late service of expert reports. Since time must be granted for the filing of responding reports, trial dates often have to be rescheduled. This is especially problematic in regions with long trial lists and can result in significant delays in the final resolution of a case.

What is important for the parties to know, and is contemplated by rule 36.01(3), is the substance of the opinion of an expert whose evidence is to be given at trial, along with the factual basis for the opinion. The delivery of the expert's report then provides more detailed reasons for the opinion. The intent of disclosure is often thwarted when the determination as to whether the expert will be called at trial is postponed until parties are forced to deliver the expert's report under rule 53.03.

The Task Force questions the suitability of anchoring the time for serving expert reports to the trial. Access to expert reports in advance of the pre-trial conference (or the settlement conference in case managed proceedings under rule 77) would be extremely beneficial in promoting meaningful settlement discussions. The Task Force recommends changing rule 53.03 and calculating the 90/60/30-day limit in relation to the pre-trial/settlement conference, subject to the court's authority to order otherwise. It is also recommended that the court be encouraged to make more frequent resort to its powers under rule 53.03(4) to promote timely delivery of expert reports and disclosure of information on which such reports are based.

Examination for Discovery of Experts
There are cases in which the pre-trial examination of an expert to test his or her opinions and assumptions is the most efficient way for a party to evaluate the strengths and weaknesses of its case before incurring the expense of trial.

The Task Force recognizes that unrestricted access to experts during the discovery process raises the spectre of additional costs, delays and unwarranted intrusion into experts' time. However, where parties agree (or the court concludes) that the pre-trial examination of an expert is necessary to test the expert's opinion, assess the merits of his or her positions, narrow the issues in dispute, facilitate settlement or avoid surprise at trial, it is recommended that the rules provide the flexibility to allow such an examination. Such an examination should be restricted to the expert's qualifications, area of expertise and the findings and opinions in the report. The Task Force also recommends that factors such as cost, time and availability of experts be included as criteria to be considered in determining whether and how to examine an expert, and that the party wishing to examine the expert be responsible for paying any reasonable fees of the expert.

Best Practices for Experts
In order to assist parties and counsel in the discovery planning process and to encourage a cooperative approach to the discovery of expert evidence, the Task Force recommends the development of best practices regarding the appropriate use of experts, organization and content of expert reports, early disclosure of expert reports and pre-trial examination of experts.

Proliferation of Experts
The findings reveal that the proliferation of experts has a significant impact on discovery and the litigation process as a whole. As the number of experts increases, so does the number of expert reports that are subject to disclosure. Section 12 of the Evidence Act, which provides that not more than three (expert) witnesses may be called on either side without leave of the trial judge or other presiding officer, is often not observed and has resulted, in practice, to an increase rather than a limit on the number of experts.

Although experts are very helpful in appropriate cases, lawyers have a tendency to engage too many. Often, trial judges are reluctant to refuse leave to call more than three experts where the parties have already incurred the expense and served expert reports. In many cases, particularly in the personal injury and motor vehicle fields, counsel consent to additional experts on the basis that cross-examination may aid their case.

As this issue does not fall squarely within the mandate of the current review, the Task Force makes no recommendations for reform at this time. It is, however, recommended that a review be undertaken to address concerns regarding the proliferation of experts.

Recommendations:

• Modify rule 53.03 so that the 90/60/30 day time limits are calculated from the date of the pre-trial conference (or, in rule 77 cases, the settlement conference), subject to:
  • a court order; or
  • the parties' agreement otherwise, provided that it is possible to have a meaningful pre-trial or settlement conference.
• Develop best practices to encourage judicial management of the timing of delivery of expert reports under rule 53.03(4) to facilitate a meaningful pre-trial or settlement conference.
• Amend rule 53.03 to provide that an expert who has been retained to give opinion evidence may be examined for discovery on the parties' and the expert's consent or by direction of the court on notice to the expert,
  • subject to a consideration of factors including cost, time, and the expert's availability;
  • provided that the examination is restricted to the expert's qualifications, area of expertise and the findings and opinions set out in the expert's report; and
  • provided that the party wishing to examine the expert is responsible for paying any reasonable fees, estimated in advance, associated with the expert's attendance at oral discovery and with the preparation of responses to written questions.
• Amend rule 48.04(2) to permit the examination of an expert on the consent of the parties and the expert without leave of the court, notwithstanding that an action has been set down for trial.
• Develop best practices for the use of experts and expert reports.
• Monitor the impact of recommendations and other initiatives on concerns regarding the proliferation of experts in civil litigation.

12. UNDERTAKINGS AND REFUSALS

Issue
How can undertakings and refusals be dealt with in a more efficient manner?

Discussion
The rules limit the types of objections, or refusals, that may be made at an examination for discovery. Under rule 31.06(1), the examined party may not object to a proper question that relates to a matter in issue on the grounds that the information sought is evidence, or that the question constitutes cross-examination (unless the question is directed solely to the credibility of the witness, or the information sought is privileged).

The rules do not provide timelines within which undertakings or refusals must be answered. However, rule 31.07(1) and (2) provides that a party who fails to answer an undertaking or refusal within 60 days before trial may not rely on that information at trial, except with leave of the trial judge. Rule 4.01(7) of the professional conduct rules imposes an obligation on lawyers to "strictly and scrupulously" carry out undertakings.

Unreasonable delays or lack of diligence in answering undertakings and improper refusals on the basis of relevance, along with the associated motions, have been identified as principal causes of unnecessary costs and delays in the discovery process. Moreover, undertakings and refusals motions can be very time-consuming, often resulting in days of hearings.

Refusal of Questions Based on Relevance
There are a variety of reasons for refusals based on relevance. For example, it may be that the witness is not properly prepared, or that counsel for the witness is not familiar with the issues as seen from the other side. Alternatively, counsel may wish to delay or avoid a damaging response and to have further time for reflection.

The Task Force is of the view that the process set out in rule 34.12(2), which permits a party who objects to a question to answer it without conceding admissibility or relevance, is vastly underutilized and should be used to greater effect. It is recommended that at the conclusion of a refusals motion, the court, in determining costs, consider whether the process prescribed by rule 34.12(2) was sought or offered.

The Task Force anticipates that the development of best practices for specific case types will, over time, provide guidance with respect to relevance in individual cases. The Task Force recommends that refusals motions based on relevance be monitored to determine whether its proposed reforms are sufficient to reduce problems in this area, and if not, whether reconsideration should be given to a proposal made by the Advocates' Society in 2000 to remove the right to refuse questions based on relevance. Under the proposal, an examined party would be required to answer the question, an objection would be recorded, and its relevance would be determined by the trial judge. The Civil Rules Committee rejected this proposal for several reasons, including the concern that it provided an opportunity for examining parties to abuse the examination by asking endless questions of marginal or no relevance.

Timelines for Answering Undertakings and Refusals
The findings indicate that examined parties frequently ignore undertakings (and sometimes refusals that are not maintained) or delay responses as long as possible, particularly where the responses do not assist their position. However, on the requesting side, the information may be vital to a position that would resolve the case.

Much of the difficulty with respect to undertakings arises from lack of clarity about what is sought, what counsel has undertaken, and who is responsible for fulfilling the undertaking. Many lawyers carelessly undertake to provide responses on behalf of their clients without inquiry as to the feasibility or timeliness of fulfilling such undertakings. These factors result in delay and increased cost.

The Task Force has concerns about the practical impact of the current timeframe for answering undertakings and refusals, which is calculated in relation to the trial ("60 days before the trial begins"), when in reality so few cases proceed to trial. It appears to have little effect on promoting timely answers. In establishing a more appropriate timeframe, consideration must be given to such factors as the time needed to obtain documents and other information from non-parties and to prepare transcripts from oral discoveries (which can take several weeks).

The Task Force recommends that the current requirement be replaced with a default time period of 45 days for answers to undertakings and refusals (where not maintained) from the date they were given, subject to any other timeframe agreed to by the parties as part of their early discovery planning. Where parties are unable to agree, they may obtain a court order.

Timelines for Answering Questions Taken Under Advisement
Lawyers frequently take questions "under advisement", a response that is neither a refusal nor an undertaking. The rules require questions to be answered or refused, but do not provide for a party to take questions under advisement. In order to eliminate this ambiguity, the Task Force recommends that rule 31 be amended to provide that any question taken under advisement is deemed to be a refusal if not answered within 45 days.

Best Practices
In spite of the professional obligation to scrupulously carry out undertakings, the findings reveal concerns about lawyers who do not fully comprehend the purpose of undertakings or who give undertakings that they are unable to fulfill, and counsel who wait until transcripts have been produced before taking steps to fulfill undertakings. The Task Force recommends the development of best practices to provide guidance in this regard.

Undertakings and Refusals Motions
Much valuable preparation time for both counsel and the court is wasted when responses to undertakings and refusals are made only on the "eve" or day of a motion to compel responses. In an effort to reduce the amount of time spent preparing for and presiding over undertakings and refusals motions, judges and case management masters in Toronto have introduced an undertakings and refusals chart over the past several years, which is to be completed with the following information:

• the issue that is the subject of the undertaking or refusal, and its connection to the pleadings or affidavit;
• the question number and page reference on the transcript where the question appears;
• the precise question asked; and
• the answer given or the basis of the refusal.

The chart has proven to be extremely helpful in reducing the duration of motions and in encouraging settlement of contentious issues. The Task Force recommends that a standard chart be adopted for province-wide use in the resolution of disputes related to undertakings and refusals.

Recommendations:

• Monitor refusals motions based on relevance to determine whether the proposal to preclude objections on the basis of relevance ought to be reconsidered.
• Amend rule 31 to require parties to answer undertakings and refusals within 45 days of their being given, subject to the parties' agreement otherwise or a court order.
• Amend rule 31 to provide that any question taken under advisement is deemed to be a refusal if not answered within 45 days of being asked.
• Develop best practices for the appropriate use of undertakings and for the prompt listing and exchange of undertakings, refusals and requests for information from non-parties.
• Introduce an undertakings and refusals chart as a regulated form under a new discovery rule for use in motions relating to unanswered undertakings and refusals.
• Require parties to collaborate in the preparation of the chart and to file the chart, along with the pleadings, prior to the hearing of an undertaking or refusals motion.

13. DISCOVERY DISPUTES

Issue
How can the volume of discovery disputes and the associated cost and delay be minimized?

Discussion
Discovery related disputes are resolved through general motions procedures under rule 37 and, in case managed proceedings under rule 77, which prescribes a streamlined motions process, as well as case conferences. There are no specialized provisions for discovery disputes.

Timely access to the court for prompt resolution of disputes is critical to the success of the discovery process. The findings indicate that delay in gaining access to judicial intervention is a concern across the province. The problem is particularly acute in Toronto, where counsel can expect to wait for weeks and even months to have a discovery related matter addressed by the court.

The current motions process - as prescribed by the rules and as modified by a proliferation of local practices - is perceived as a cumbersome and inefficient method of resolving discovery issues.

In exploring ways to improve the motions process, several factors have been taken into account by the Task Force. First, limitations on judicial resources preclude access to "real time" rulings during or immediately after oral examination. Second, in keeping with the principles of discovery planning, parties must be encouraged to attempt to resolve their disputes before seeking the court's assistance. Finally, a timely, streamlined, consistent process is needed to promote efficient resolution of discovery disputes.

The Task Force recommends adding a provision that prescribes a streamlined motions procedure for discovery disputes, based on that found in rule 77, whereby parties would use simplified forms and would not be required to file supporting material or a motion record. It is also recommended that the provision expressly authorize motions to take place in person, by teleconference and in writing where appropriate, subject to the court's discretion.

It is also recommended that parties be required, as a pre-requisite to bringing a motion or requesting a case conference, to demonstrate that they have made efforts to resolve the dispute before seeking the court's intervention. The delay necessitated by discovery related motions is in many cases entirely avoidable, particularly where the parties are (or should be) aware in advance of the likely outcome of such motions. The Task Force recommends that there be a presumption of costs to the successful party on the higher scale unless the court orders otherwise. The objective of this provision is to strengthen parties' incentive to resolve disputes on their own and to discourage unnecessary motions.

Recommendations:

• Establish a province-wide simplified process for resolving discovery disputes, to include the following features:
  • simplified discovery motions form (based on Form 77C);
  • no requirement to file a formal motion record or supporting materials (except for the undertakings and refusals chart recommended above);
  • motions to be heard in person, by teleconference and in writing, where appropriate and subject to the court's discretion; and
  • access to case conferences at the request of any party or on the court's initiative.
• As a pre-requisite to bringing a motion or requesting a case conference, require parties to demonstrate that they have communicated in an attempt to resolve the discovery dispute.
• Include a presumptive order for costs on the higher scale where a party is successful, unless the court orders otherwise.

14. ENFORCEMENT OF DISCOVERY OBLIGATIONS

Issue

How can discovery obligations be enforced more effectively to reduce non-compliance with and/or abuse of discovery rules?

Discussion

The rules provide the court with authority to impose a range of sanctions and enforcement mechanisms, including a variety of serious penalties. The bar has a strong desire for tougher sanctions with "real teeth" for unjustified breaches of the discovery rules, and greater predictability in the enforcement of discovery obligations by the judiciary. The Task Force was told that discovery abuse can only be deterred by clear and meaningful consequences, and that uneven enforcement of the rules makes it difficult for lawyers to advise their clients what to expect where breaches occur.

On the other hand, it is recognized that there are valid reasons for judicial restraint in applying sanctions, including rule 1.04, which mandates the court to construe the rules liberally "to secure the just, most expeditious and least expensive determination" of cases on their merits. Overly strict sanctions could discourage parties (especially those with limited financial resources) from pursuing legitimate inquiries, thereby impeding access to justice. Moreover, sanctions perceived to be excessive would inevitably lead to an increase in motion activity and appeals challenging the merits of orders.

Inconsistencies in the application of sanctions can arise when various judges become involved in a case at different stages of the proceeding. Lack of familiarity with a file makes it difficult for a judge to assess what, if any, sanctions are warranted at a particular stage of the litigation.

Lawyers are very interested in greater judicial intervention where discovery problems arise. The Task Force believes that the provisions for court assisted discovery planning, combined with a streamlined process for the resolution of disputes, will enable the judiciary to play a larger role in overseeing the discovery process. In addition, the increased cooperation among parties through discovery planning mechanisms will help promote compliance with discovery obligations. Finally, as discussed in the following section, enunciation of the principles of cost and time efficiency and professionalism in the rules should provide additional guidance on the interpretation and application of the discovery rules.

Recommendation:

• While the Rules of Civil Procedure provide an adequate range of sanctions to address discovery abuse, the imposition of meaningful and predictable consequences would help to deter unjustified breaches of discovery obligations.

15. PRINCIPLES OF EFFICIENCY AND PROFESSIONALISM

Issue

How can the principles of cost and time efficiency and professionalism be more effectively brought to bear on the interpretation and application of the discovery rules?

Discussion

Preambles to the rules, or principle-based rules, provide a framework within which the Rules of Civil Procedure are to be interpreted and applied by the court, and serve as a guide for lawyers and unrepresented litigants on the appropriate use of the rules.

The findings suggest that the directive in rule 1.04 "to secure the just, most expeditious and least expensive determination" is not consistently observed with respect to discovery. In liberally construing the discovery rules to be as expansive as possible, lawyers and judges may underemphasize the importance of cost and time considerations. This can have the unintended effect of impeding access to justice for many litigants. The Task Force has heard that the discovery process can be prohibitively expensive for individual or small business litigants. Many lawyers complain about conduct and tactics of counsel that increase the expense and duration of discovery, and the court's reluctance to intervene.

The Task Force is of the view that a stronger directive, or preamble, will help to discourage time-consuming and costly practices. The preamble to rule 77 expresses principles that the Task Force believes should be brought to bear not only on the discovery process, but the entire litigation process. Rule 77.02 directly addresses the need to reduce unnecessary cost and delay, to facilitate early and fair settlements and to bring proceedings expeditiously to a just determination. The Task Force recommends replacing the wording in rule 1.04 with the wording in rule 77.02 in order to provide the court with a very clear rationale for limiting discovery where appropriate.

The preamble should also signal - to the court and the bar - the level of professionalism that is expected of lawyers in conducting litigation and discovery activities. Rule 4.01(4) of the Rules of Professional Conduct prescribes a lawyer's obligation to explain to his or her client the necessity of making full disclosure and answer questions, to assist the client in making full disclosure, and to refrain from making frivolous requests for productions or information. Rule 4.01(7) requires a lawyer to strictly and scrupulously carry out undertakings.

The Task Force recommends that these provisions be directly integrated into the Rules of Civil Procedure, both to reiterate their importance and to enhance their accessibility. In making this recommendation, the Task Force does not seek to empower the court to regulate the conduct of lawyers, but to provide the court with guidance in making determinations with respect to abuse of the discovery rules.

Recommendations:

• Incorporate into rule 1.04 language from rule 77.02 to provide that "the rules shall be construed so as to reduce unnecessary cost and delay in civil litigation, facilitate early and fair settlements and bring proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding."
• Incorporate the wording of rule 4.01(4) and (7) of the Rules of Professional Conduct into a new discovery rule.

16. BEST PRACTICES MANUAL

Issue

How can the profession be encouraged to adopt best practices in conducting the discovery process?

Discussion

A degree of guidance on the proper conduct of discovery is provided to lawyers through practice directions, professional codes and the Law Society's professional conduct rules. However, no comprehensive list of advisable practices for the conduct of discovery exists in Ontario. For example, while the professional conduct rules describe a lawyer's discovery obligations, they do not provide specific practical direction as to how those obligations should be carried out.

The Task Force has accumulated an extensive (but by no means exhaustive) list of best practices to be followed in the discovery process. This list has been compiled from a variety of sources, including suggestions by lawyers, members of the judiciary and case management masters who participated in consultations, as well as guidelines that have been developed in other jurisdictions. These suggestions and guidelines range from the specific (for example, steps to take in planning the discovery process, or how to prepare a client for documentary production) to the general (for example, the importance of cooperation among counsel, or good faith efforts to resolve discovery disputes).

Not all lawyers routinely follow these practices, with the result that unnecessary cost and delay are added to the discovery process. There is a strong consensus, however, that lawyers should not be "micro-managed" by encoding detailed practice or conduct requirements in the rules. These would not only bring unnecessary complexity to the rules, but would be difficult to enforce and inevitably lead to more disputes and related motions.

The Task Force recommends the development of a best practices manual on all aspects of the discovery process, to be used as an educational guide for the profession (and to provide assistance for unrepresented litigants). Best practices are not intended to be enforceable as rules, but to be adopted by the bench and bar as appropriate conventions or norms for the conduct of discovery. A great deal of enthusiasm for this initiative has been expressed to the Task Force, both by litigation practitioners and the judiciary.

Development, Dissemination and Maintenance of Manual
The Task Force is of the view that the development of a best practices manual will require the collaboration of the Law Society, representatives of different segments of the litigation bar, the judiciary, the Civil Rules Committee and courts administration.

Because of the anticipated scope of the manual, it is recommended that a steering committee be established to oversee this initiative, assisted by sub-committees to develop best practices for each of the areas to be covered. Such areas should include (but are not necessarily limited to):

• Discovery planning and scheduling;
• Documentary discovery (timing, format, content, affidavit of documents, production, electronic discovery);
• Written discovery (when to use written questions and answers, content of questions and answers);
• Oral examination for discovery (scheduling, preparation, proper questioning, refusals and undertakings);
• Motions (preparation, attempt to resolve disputes, compliance with orders);
• Experts;
• Specific guidelines for certain areas of practice (e.g. wrongful dismissal, motor vehicle, other personal injury, small commercial cases); and
• Unrepresented litigants.

In preliminary discussions, the Law Society has agreed to assume responsibility for coordinating the production and dissemination of the manual, and to develop complementary educational and training programs for the bar. Task Force members have agreed to serve on the steering committee and will be joined by representatives of other organizations, as recommended below.

Recommendations:

• Develop a best practices manual to address the proper conduct of discovery, including discovery planning, documentary discovery, written and oral examination for discovery, undertakings and refusals, motions, discovery of expert evidence, unrepresented litigants and other related matters.
• Form a steering committee to oversee the development and implementation of the best practices manual, reporting to the Attorney General and the Chief Justice of the Superior Court and comprised of the following members:
  • Judicial representative as Chair
  • Discovery Task Force members
  • 1 representative of each of the Law Society, Advocates' Society, Ontario Bar Association, County and District Law Presidents' Association, Ontario Trial Lawyers' Association and Metropolitan Toronto Lawyers' Association
  • 2 judicial representatives (1 from Toronto and 1 from outside Toronto)
  • 1 representative of the Court Services Division, Ministry of the Attorney General
  • 1 representative of the Civil Rules Committee Secretariat
• Mandate the Law Society to coordinate the production and dissemination of the best practices manual and to develop complementary bar education and training programs.

17. OTHER MATTERS

Judicial Management
Some actions take significantly longer to resolve, give rise to more discovery disputes and motions, cause greater expense to parties, and require more judicial intervention than others. These cases present serious challenges. A consistent theme heard by the Task Force is that access to more timely and consistent judicial management in such cases would help shorten the litigation process, minimize the number of discovery disputes, and substantially reduce the cost to parties.

The Task Force recognizes that the broader issue of judicial case management (as opposed to management of the discovery process per se) goes beyond the scope of its mandate. The Task Force believes it would be valuable to assess the benefits of more active judicial management to assist in the resolution of discovery disputes and promote early resolution of litigation.

Rules 26.01 and 53.08
Rule 26.01 requires the court on a motion at any stage of the proceedings to grant leave to amend a pleading, unless the resulting prejudice cannot be compensated by costs or an adjournment. Rule 53.08 deals with evidence that is admissible only with leave of the trial judge for a variety of reasons, including failure to disclose a document, refusal to disclose information on discovery, failure to serve an expert's report and failure to disclose a witness. It requires the court to grant leave unless the opposing party will be prejudiced or the conduct of the trial will be unduly delayed. Both rules impact on the discovery process because they oblige the court, even at trial, to grant various types of relief unless prejudice cannot be redressed as described above. There are strategic and cost consequences for delayed disclosure, including a party's approach to settlement.

While the Task Force does not consider it within its mandate to recommend changes to these rules, it is suggested that the Civil Rules Committee consider revisions that would at least presume prejudice to a party who receives late delivery of amendments to pleadings or documents, particularly where relief has not been sought on a more timely basis before trial. Prejudice does result from delay, particularly when it could have been avoided. The Task Force recommends that this issue be studied.

Recommendation:

• Review rules 26.01 and 53.08 to address prejudice caused by untimely amendments of pleadings, disclosure of information or delivery of documents.

CONCLUSION

The objective of the Task Force has been to study the discovery process and recommend reforms that will promote access to justice by improving the efficiency of the process, without compromising fundamental disclosure principles.

A central theme of the Task Force recommendations is that management of the discovery process should, to the extent possible, remain with the parties, with rules operating as a default standard in the absence of consensus. A key to the success of this approach will be recognition by the bar of the value of cooperation in conducting discovery. Equally important is the need for a flexible regulatory scheme that recognizes the unique features and exigencies of different types of cases. At the same time, there is a reasonable expectation that the discovery process will be managed in a predictable and consistent manner throughout the province, whether or not a formal case management scheme is in place.

It is hoped that rule changes recommended in this Report, together with the collaboration of the bench and bar in developing a best practices manual, will contribute to a more cost-effective and efficient discovery process in Ontario.