Chapter 6 - Specific Areas

6.5 - Discoveries

Introduction

One of the issues deferred to our Supplemental and Final Report was that of the discovery process. As discussed in the First Report, the stage of a lawsuit between the delivery of the pleadings and the pre-trial or settlement conference is commonly referred to as the "discovery phase" of litigation. During this phase, the parties have an opportunity to learn more about each other's case through the mandatory disclosure of relevant documents and the pre-trial examination under oath of parties adverse in interest. The primary goal of the discovery process is to ensure open and full disclosure in order to facilitate settlement efforts and to make the trial process more effective and fair.

While the oral examination part of the discovery process is considered by the Bar and others to be a critical component in the conduct of litigation, concerns have been raised that it has become too time-consuming and costly to continue without new controls. During the consultation phase of the Review, the length and cost of discoveries were concerns raised in every centre we visited. We heard many accounts of the growing length of oral examinations and serious doubts were expressed about their value relative to what was at issue in the litigation.

In the First Report, the Review noted that the cost of discovery to each litigant who participates in an average 3-day trial is approximately $7,000 in legal fees [1] . This calculation was based on a two day examination for discovery, including preparation time and documentary disclosure. It did not include, however, the costs associated with discovery-related motions that are often brought. While there is no reliable data on the percentage of such motions, we noted in our First Report that Toronto Masters estimate that 25% of all motions brought before them involve discovery issues [2] . As well, there are other costs involved -- for example, in responding to undertakings, reporting to clients, and purchasing and reviewing transcripts of discovery evidence.

We also noted in the First Report that a significant contributing factor to the growing length of examinations, and the corresponding increase in cost, is the current broad scope of pre-trial discovery. When the Rules of Practice were amended in 1985, a primary focus of the revisions was to broaden the scope of examinations for discovery by allowing a much wider range of questioning and cross-examination. In addition, as a result of the growth in technology, there has been a marked increase in information sources and available data which in turn has lead to a substantial increase in the material available for discovery purposes.

We have concluded that it is becoming increasingly difficult to cope economically with the present scope and form of discovery and, accordingly, made the following recommendation, namely [3] :

That consideration be given, by the Rules Working Group of the Implementation Team, to methods of improving the examination for discovery process in ways that will make it more economically effective while at the same time preserving its essential disclosure principles. Some areas to be considered in this exercise are:
  • The possible re-entrenchment of the scope of discovery to pre-1985 limits
  • Removal of the right to cross-examine at discovery
  • Time parameters for the conduct of oral examinations

We also invited comments, pending our final Report, on other possible measures for streamlining the discovery process.

The Need for Further Study

Since the release of the First Report, the General Division has initiated a four-year pilot project pursuant to which Simplified Rules will be applicable to claims under $25,000. The pilot project took effect on a province-wide basis on March 11, 1996. A key feature of the new simplified rules is the elimination of examinations for discovery for claims under $25,000.

Concerns about discovery are still relevant, however, to those cases that do not fall within the Simplified Rules initiative. While the proposed Working Group was not constituted, the Task Force did invite the Honourable S.G.M. Grange, a retired Justice of the Ontario Court of Appeal, to consider this issue, and he has provided the Review with his preliminary observations. For instance, he observed [4] :

The First Report expresses the widespread concern of the Bar and others that it [discovery] is now out of hand, that it adds unnecessary delay and cost to the process and thus hinders rather than helps the resolution of the dispute. The process takes time and effort to arrange, to conduct and to evaluate. Not only the time expended is costly but the process itself costs money. The disbursements and the motions relating to Discovery can add immeasurably to the costs of the litigation. It is very doubtful that the money is always or even generally well spent. Some way must be found to make Discovery worth that expense or at least to discourage the present trend to excessive use and unnecessary expense. In the Court of Appeal it was put in Ontario v. Stavro, 26 O.R.(3d) at p.48:
The discovery process must also be kept within reasonable bounds. Lengthy, some might say interminable, discoveries are far from rare in the present litigation environment. We are told that discovery of these defendants has already occupied some 18 days and is not yet complete. Unless production from and discovery of non-parties is subject to firm controls and recognized as the exception rather than the rule, the discovery process, like Topsy, will just grow and grow. The effective and efficient resolution of civil lawsuits is not served if the discovery process takes on dimensions more akin to a public inquiry than a specific lawsuit.

Among other things, Mr. Grange has suggested that a modified version of elective discoveries be considered, with a series of checks and balances to ensure fairness and the fullest of disclosure where necessary, but not necessarily the fullest of disclosure if unwarranted in the circumstances.

We have also received a number of other suggestions for addressing the problems associated with the discovery process. For example, it has been proposed that the scope and length of discovery should be controlled through the case management process, whereby a Case Management Master or Judge would set parameters around the oral discovery process at a case conference. We agree that the case management process is an important vehicle for streamlining the discovery process. Other proposals include having in place informal processes, such as teleconferencing, for dealing expeditiously with discovery-related issues.

The Canadian Bar Association's Systems of Civil Justice Task Force also acknowledged the problems with the current oral discovery process and recommended that Canadian jurisdictions consider specific reform measures directed at imposing limits on discovery. Examples of such reform measures include limiting discovery through strict timelines or limits on the number of examinations, mandatory discovery conferences between counsel and/or before a judge, and using sanctions to penalize duplicative or cumulative discovery [5] .

All of these suggestions are worthy of further consideration and point to the need for a more indepth study of this issue. There is a need to consider not only options for limiting the current discovery process, but more fundamentally to consider whether the rules governing this process should be amended, for example, to restrict the current scope of discovery. Accordingly, the Task Force makes the following recommendation.

RECOMMENDATION

We recommend that the Civil Rules Committee constitute a Working Group to consider and make recommendations concerning the current Rules of Civil Procedure governing the discovery process with the objectives of preserving its essential disclosure principles while improving its economic effectiveness.


Footnotes:

[1] First Report of the Civil Justice Review ( Toronto: Ontario Civil Justice Review, March 1995), at p.235.
[2] Id., at p.234.
[3] Id., at p.238.
[4] Report from the Honourable S.G.M. Grange to the Honourable Mr. Justice Robert A. Blair (July 16, 1996), at p.2.
[5] Systems of Civil Justice Task Force Report (The Canadian Bar Association, August 1996), at p. 43.

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