New discovery rules mandate efficiency in Ontario
Gone are the days of ‘document dumping’ and tactics designed to prolong the court process as legislators in Ontario introduce new rules designed to reduce costs and promote access to justice. But will lawyers be able to adapt?
By Daryl-Lynn Carlson
Ontario’s new Rules of Civil Procedure, which came into effect on Jan. 1 of this year, include amendments that streamline the discovery process to save time and money for clients and enhance access to justice.
The changes affecting discovery, under Rule 29.1 of the new Rules, are significant in scope. Yet some civil litigation practitioners in Ontario agree it could be several years before they are able to adapt to the full extent of the changes.
One of the key amendments under Rule 29.1 changes the definition of evidence that is permitted to be put forth in discovery from that which is “related” to the case at hand, to anything “relevant” to the matter. “It’s like a magic word,” says Tim Pinos, a partner at Cassels Brock & Blackwell’s Commercial Litigation Group. “But the question is, ‘How narrow has this definition become?’”
“In some instances, I’ve gotten nothing that I had expected to receive and in others, I’ve gotten the kitchen sink.”
He says since the changes came into effect in January, “in some instances, I’ve gotten nothing that I had expected to receive and in others, I’ve gotten the kitchen sink.
“It doesn’t tell anyone where to go in terms of reducing the scope of the discovery obligation, either for documents or for a witness in an examination for discovery,” says Pinos.
Another key change mandates lawyers to agree on a discovery plan in advance, and to use electronic discovery best practices.
Pinos says it will be interesting to watch how the courts intervene to resolve differences between plaintiff and defence counsel should they not reach an agreement on all aspects of the discovery plan. When there’s failure to agree on all fundamental issues, there's the question of the extent to which the court will order specific types of electronic discoveries .
Pinos believes it's probably too early to expect the rules to provide clear answers for parties looking for direction, in terms of reducing the scope of the discovery obligation. “So actually, I think it will be years before we get a handle on what the change means in a practical sense.”
“Proportionality” of discovery considered
The Ontario Civil Procedure Rule changes are the most extensive introduced since 1985.
They are the result of a Civil Justice Reform Project struck in June 2006 and headed by the Hon. Coulter Osborne, former Associate Chief Justice of Ontario. His primary objective, as mandated by then-Ontario Attorney General Michael Bryant, was to introduce reforms that would make the civil justice system more accessible and affordable for Ontarians.
Among the most sweeping changes are new mandatory mediation requirements to substantial changes to Rule 20 that empower a judge to preside over a mini-trial to hear evidence for a Summary Judgment motion. Pertaining to discovery rule amendments, judges are also empowered to consider the “proportionality” of discovery to determine the cost burdens of the parties involved in a matter.
How this last change plays out in a practical terms will be intriguing to watch, says Pinos. “Does the proportionality rule allow the court to further narrow the scope of discovery beneath the relevant standards just because it’s going to be time consuming and costly?” he asks. “And to what extent in smaller cases, where the issues might be complicated, will we have a stripped-down form of production that won’t even cover the relevancy bases? In other words, can time trump relevance? I think depending on how far the courts go, it could raise issues of fairness.”
OBA Discovery Planning Checklist
The Ontario E-Discovery Implementation Committee has published a "Checklist For Preparing A Discovery Plan."
The 14-page document, available on the Ontario Bar Association Web site, covers all aspects of the new discovery rules.
The basic premise of the new discovery rules are summarized under Issue Identification and Scope of Discovery as follows:
1. Identify the issues in the litigation.
• The parties should begin by identifying each cause of action and each defence raised in the action and the heads of damages. (The objective of the discovery plan is to assist parties in identifying and focusing on the important issues in the litigation in order to promote fair, expeditious, and efficient results.)
• It will be helpful for the parties to prepare, exchange and attempt to agree on outlines of the causes of action, defences and heads of damages in advance of the discovery plan negotiations.
2. Identify the applicable legal tests.
• For each cause of action, each defence and each head of damages, identify the specific legal test to be met or responded to (in order to articulate reasons why particular evidence may be relevant).
• Again, this is best accomplished by agreement in advance of the discovery plan negotiations.
3. Consider, for each legal issue, the type of evidence required by each party.
• For each cause of action, each defence and each head of damages, identify the type of evidence required to prove or defend that element of the case (e.g., testimony, documents, other evidence), as part of the analysis as to the nature and scope of potentially relevant records.
— D.-L. C.
As well, the e-discovery process in some formats can be costly, particularly if parties are seeking to store to ensure their data is bona-fide according to forensic court standards.
E-discovery guidelines established by the Ontario E-Discovery Implementation Committee, adapted from the Sedona Canada principles, set out that each party is responsible for locating their document source, preserving the materials, reviewing them for relevance and, ultimately, providing them to the other parties involved in the matter for use in court.
In keeping with the old rules regarding the production and provision of paper documents, the costs for the electronic document location, preservation and relevance review resides with the party producing them, while the receiving party absorbs the costs of any reproductions – and visa versa.
“This really encourages counsel to think about their case in a different way, much earlier and in cooperation with the other party.”
In some circumstances, the parties can strike their own cost agreements and it’s possible the court can make an order to allocate costs in matters that involve a large volume of electronic documents.
A number of companies, including PriceWaterhouse-Coopers, provide electronic document services for parties involved in a court matter to ensure their preservation and authenticity.
Susan Wortzman, of Wortzman Nickle Professional Corporation E-Discovery management support firm, says the mandatory discovery plan requirement will enable lawyers to narrow-down the scope of documents required for the e-discovery process.
“This really encourages counsel to think about their case in a different way, much earlier and in cooperation with the other party, and from an e-discovery perspective, there’s a huge long list that parties can discuss and agree on regarding how they’re going to approach the discovery process,” says Wortzman.
She agrees while each case will differ in the scope of documents that will be provided through the e-discovery process, the new rules can be tremendously advantageous to saving costs for both sides.
“If both parties can agree in culling the information [down to] what they need, and can remove duplicates, it will narrow the timeframe and in doing this. You are saving your client time and money,” she says.
The change in the definition of evidence from “related” to “relevant” will be advantageous in helping both parties narrow down the scope of documents related to the case, she says.
As well, the new discovery rules limit oral examinations to seven hours, prohibiting counsel to go on a “fishing expedition” or in some cases, tactically drawing out the discovery process. “If I am involved in a case and have only one day to examine the other party, I’m going to be very prepared,” she acknowledges. “All of these rules are aimed at requiring counsel to think about their case much earlier and that is a huge advantage for clients.”
‘A mental change that lawyers have to make’
Todd Robinson, a lawyer at Blaney McMurtry LLP’s construction, engineering and commercial litigation group, authored a paper on the firm’s web site titled "New Rules Aim to Make Court Faster, Easier, More Accessible." It provides an overview of Ontario’s Rules of Civil Procedures, with a section highlighting the scope and conduct regarding discovery.
Robinson says the changes pertaining to discovery, in particular, could lawyers some time to adapt to. Lawyers will have to change how they think as we’re very adversarial,” he acknowledges. “The goal here is to make lawyers more reasonable, forward-thinking about the discovery process and to try to work together, and that is a mental change that lawyers have to make.”
In his paper, Robinson notes that the new discovery rules are designed to “minimize, if not avoid, time-consuming, delay-producing and cost-generating practices such as ‘document dumping’ (where boxes of documents are produced, most of which are connected to the matters at issue but are not relevant to them) or ‘fishing expeditions’ (where parties seek extensive discovery on less important issues).”
As well, the discovery plan will help set the parameters of the scope of discovery, including an agreement between counsel on document production dates and the names of individuals who will be presented for oral discovery.
“Discovery plans are intended to help expedite the litigation by obliging counsel to discuss and deliberate on the conduct and course of the action before it ever gets to court,” Robinson writes. “In addition, a time limit on oral discoveries is being introduced for ordinary actions (a maximum of seven hours per party), which will force counsel to focus in on the key issues of the litigation when asking questions on discovery.”
The proportionality mandate will also require lawyers to be cognizant of the claim relative to its value versus the time and resources they’re expending on the case. “The hope is that lawyers will try to help their clients see litigation as more of a business decision that can be costly,” he says.
Indeed, it’s all new for lawyers and already, Robinson says one of his colleagues at the firm has been subject to a motion because the parties involved in a case could not reach an agreement for a discovery plan.
So the courts have some work to do in providing clarifications for the new discovery rules before all parties will be able to benefit.
Daryl-Lynn Carlson is a freelance writer.