Discovery Plan in a Civil Action in Ontario

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This is the second lecture on discovery process in a civil action in Ontario. This lecture deals with the discovery plan, which is an important document relating to the discovery process. It explains what this document is about, when it should be created and what kind of information it should contain.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In our previous lecture we provided a brief overview of the discovery process in a civil action in Ontario.  Today’s lecture we will talk about a discovery plan.  This is one of the most important steps in the discovery process. We will explain to you what a discovery plan is about.  We begin again with our usual disclaimer that this is not legal advice. If you have any specific questions about your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What is a discovery process?  We explained this in detail in our previous lecture.  Just as a recap discovery process is a process whereby you, as a party, can obtain evidence from the other side with respect to the relevant issues in the action.  All parties are entitled to obtain evidence from the other side prior to going to trial so that they are aware of what kind of case they have to meet.  If you haven’t watched the previous lecture I would suggest that you do, so that you have an overall understanding of the discovery process. 

Discovery plan: what is a discovery plan?  Discovery plan is an agreement between parties.  It’s an agreement between all parties in the action.  If there are more than 2 parties, then the agreement should be between all of the parties.  What is this agreement about?  It deals with the discovery process itself.  There are different facets of the discovery process.  You want to discuss all of those in your discovery plan.  The agreement must be in writing and the agreement must be completed within 60 days after “close of pleadings” (which is a specific term in the Rules of Civil Procedure—I believe it’s Rule 25.05—you can look it up).  Essentially, what is meant by close of pleadings, is it’s a time when the when the party that is supposed to serve and file their Reply, have done so.  If you are the plaintiff and you have received the defence and now you intend to file a Reply—once that reply is served and filed, then that’s the time that the pleadings are closed.  If you chose not to file a Reply, then the time during which you could have filed a reply that time is expired. If there are any defendants that did not file their defences and they need to be noted in default, that step has taken place.  It’s an important step.  You need to understand when the pleadings are closed.  When the pleadings are closed, you have 60 days during which time you have to complete a discovery plan and get all parties to reach an agreement. That 60 days time period can be changed—with the agreement of parties.  If parties mutually decide that a discovery plan will be completed in, let’s say, 90 days after the close of pleadings, then that’s fine.  The court will accept that.

What is contained in the discovery plan? 1st of all the discovery plan should contain the intended scope of documentary discovery: what kind of documents are the parties going to provide.  How do you determine what is the intended scope?  You have to consider 4 elements: 1.  Relevance: relevance is the most important aspect of documentary discovery because only documents that are relevant to the issues in the action are required to be produced.  Documents that are not relevant, need not be produced. I had given an example in the previous lecture. Where the example we took was that you are commencing a court action or you have commenced a court action against your contractor who was renovating your kitchen. You believe that the contractor did not do the job correctly and caused you damages. You are suing the contractor for those damages.  The relevant issues, in that specific case, could be whether you had a contract or not with the contractor. What was the content of that contract? What was it that was agreed upon? Is there any e-mail correspondence that you exchanged with contractor and contractor has possession of those emails?—those  are relevant documents that you are entitled to have. If you exchange any text messages, for example, with the contractor with respect to the particular issues in the action, then you may be entitled to have those text messages produced; there may be charts, diagrams, that may be in the possession of contractor that are relevant.  These may be relevant documents and ought to be produced. There may be photographs; there may be audio recordings, etc. Any document that is relevant to the issues of the action becomes relevant.  You determine in discussion with the other side or other sides what is the scope of documentary discovery? What is it that they will go back and look for with respect to relevant documents and then produce those? Also discuss the cost.  You have to keep in mind that the documentary discovery is not an infinite right.  It is the term that is used in the Rules of Civil Procedure and is called proportionality.  “Proportionality” is an important part and I’ll talk about it later on in the lecture.  The importance of documents that you’re asking the other side to produce and also the complexity of your case—are some of the things that you consider in deciding the scope of documentary discovery.  That scope of documentary discovery should be in the discovery plan. 

You also need to agree upon the dates on which the parties need to exchange their Affidavit of Documents. I believe I have a separate lecture on the Affidavit of Documents.  What they are—you can look them up—these are documents that contain a list of all the relevant documents that a party has in its possession and provides it to the other side. You also need to discuss the timing, cost and manner of production.  Affidavit of Documents only contains a list.  Now if the other side requires you to produce the documents that are part of the list, then when do you need to provide those documents?  Usually parties agree to exchange the productions at the same time when the Affidavit of Documents are exchanged.  But, that may not necessarily be the case. You may agree on a different date. Who is going to pay the cost of the documentary production?  Is each party going to bear its own cost? Are you going to pay the cost of documentary production that you are asking the other side to do? What is the manner of production? Do you require paper copies of everything—bound and tabbed? Or is the electronic production of documents sufficient?—which in most cases may be Ok. You put those documents on a usb (memory) stick in pdf form or another common format and then provide to the other sides.  All of these items need to be discussed in the discovery plan. 

Names of persons to be examined: Who are the individuals that you will be examining or who is the individual that you will be examining from the other side / sides? Similarly, who will the other side be examining from your side.  That needs to be agreed upon.  Then any other items that can move this discovery process expeditiously and cost effectively—all need to be put in the discovery plan.

Some of the additional considerations that you want to keep in mind with respect to discovery—if  there are any changes to your discovery plan that happen by agreement of parties, then you need to update the discovery plan and keep it updated.  You do not need to file it with the court. You need to have it available.  You bring it to court only if there are issues with respect to the discovery process and you’re bringing a motion seeking some order from the court and you need to rely on a discovery plan that was agreed upon—then you can you can go back and provide the discovery plan to the court. If you don’t agree to a discovery plan in the time period that is provided and if you’re seeking any remedies under Rules 30 to 35—which are remedies with respect to discovery process, then the court may refuse to grant you your remedy because you’re not agreed on a plan.  Now again, if you wanted to agree to a plan but the opposing side was being unreasonable, then that could be an issue that could be brought to the court and you can obtain an Order.  Generally speaking if you have not done your part in agreeing to a discovery plan, then you may not get the remedies that you want the court to give you under these Rules.  

Proportionality as I said is an important principle in the court actions in general and also with respect to the discovery process.  It is Rule 29.2.03. Let’s see if I can take you there. We’ll go over it quickly. Right here: when you ask a party to provide certain documents and let’s say they do not provide it and you bring a motion to the court and say that you want the court to give an Order to the other side to provide those documents, what is it that the court is going to consider? whether those documents are to be producer not? 1st point is the time: how long would it take for that party to get those documents and produce those documents and is that time frame and reasonable? 2. Expense: how much is it going to cost the other side to answer the production of those documents and is that cost—is that expense justified? Then 3. requiring the party or the person to answer the questions or produce the document would cause him or her undue prejudice.  If there’s any prejudice that may be caused to that party.  This could be all kinds of things e.g., commercial circumstances—maybe the production of those documents may cause some economic harm, that could be an argument.  That is something that can be brought up for the consideration of the court.  The court can rule accordingly. 4. Requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action and 5. the information on the document is readily available to the party requesting it from another source.  You are asking somebody to produce that document but you could obtain it yourself, then the court may say look we’re not going to give you this order because you can go ahead and get it yourself.  Then also the court considers overall volume of documents.  If your case is worth let’s say $50,000.00 and you believe that the relevant documents in this case are $20,000.00, then the court may say that the request is completely unreasonable because it is disproportionate to your claim and the complexity of your claim.  

What is it that you want to keep in mind?  You want to carefully review the rules to understand what are the rules about a discovery plan. You want to make sure that you agree to a discovery plan, you carefully draft that discovery plan to make sure that it covers all of the important issues that need to be agreed upon and then parties have an agreement.  With respect to agreement, just so you know, there isn’t really a specific form or format that you need to follow with respect to the discovery plan it really depends upon the circumstances of your case / the complexity of your case. It could be done in email correspondence—as long as there is an agreement between parties.  In a lot of my cases in employment law matters, I tend to agree to a discovery plan just by email correspondence. You could even do it by text messages—as long as there is a written document that confirms the agreement of parties with respect to the discovery process, then you are fine. It does not need to be signed by parties as long as there is an agreement.  You want to make sure that you want to carefully draft the discovery plan and keep in mind the proportionality.  It’s an important principle the court will carefully review—whether what you’re asking or any side is asking is proportional to the issues in the litigation complexity, the cost, the damages claimed—all of those factors are considered by the court.

There is a sample discovery plan provided by the Ontario Bar Association (OBA) which is the association representing lawyers in Ontario and it’s an excellent discovery plan. I’m just going to show it to you. You can go on their Web site download it if you want to draft a discovery plan and you can use that.  This is just a sample. It is not a legal form given by OBA.  Do not treat it as a legal document provided by them.  You notice that this is just like any of the court forms: you provide the title of the proceeding on the top; and it says discovery plan; and the first item talks about applicable procedural regime: whether it’s a commercial matter; simplified procedure—what kind of action is this? What are some of the legal issues for determination at trial? You talk about the causes of action—what is it that you’re claiming? Is it a breach of contract? Or is it a defamation case? What is the nature of the case? What kind of legal issues will be raised under each cause of action? And, what are the head of damages that are claimed.  You can briefly talk about it—you don’t need to do this.  This is a very broad and comprehensive form that gives you some guidance—you don’t need to necessarily follow all of these steps. Scope of documentary discovery: yes, you have to make sure that the scope of documentary discoveries is to be agreed upon.  You will see here the identification and priority of the documents and their authors.  Identify and prioritize key authors and custodians, record types of e-mails, electronic forms, other documents, relevant time-frames, location and other parameters within which search will be conducted for relevant records.  I’ll give you an example.  In the same case of a contractor you may say that you agreed to this project, you had preliminary discussions from September 2018 to October of 2018.  Then you entered into this agreement with the contractor.  Then the scope of your documentary discovery could be any e-mails that he exchanged with you from September 1st 2018 to present time or to December 31st 2018. That could define the scope, the time and the time frame.  These could be e-mails exchanged between you and the contractor or if the scope needs to be widened because there were other people that had communicated by e-mail from the contractor’s office. You want to encompass those e-mails as well. You expand the scope—you say all the e-mails correspondence between contractor’s office and myself from the time period of September 1st to December 31st 2018.  That’s why it’s important to consider what kind of documents are required; what kind of documents the other side may have; who could be the authors and custodians of those documents—so that you are able to get all relevant documents and don’t miss out on documents that may be relevant and you have not asked for their production. In this step, you agree to the deadline for affidavit of documents that we discussed, timing and put on the format of production of records.  How do you do it? You talk about oral discoveries—when will these be conducted, who will be attending and if there are other forms of discoveries, how do we go about doing that?  This is a form that you can use.  I have provided the link [here]. You can go to that link and download this form and use it based upon the circumstances of your own case. 

The fundamental idea of discovery plan is that it’s a written document that provides an agreement between parties on how the discovery process is going to take place—who is going to provide documents and when; who is going to be examined; who’s going to pay for cost—and this needs to be done as soon as possible within 60 days of the close of pleadings.  If not, then whatever time frame is agreed on between parties.  In the following lectures we will again proceed with other smaller distinct steps in the litigation process. For example, we’ll talk about the examination for discovery.  I’ll explain to you what kind of forms you require to serve on the other side for the examinations.  How do you know what is contained in those forms and whatnot?  We will take apart this discovery process piece-by-piece and provide you at least some overview, so you have a broader understanding of the discovery process and then you are able to effectively conduct your discoveries on the other side.

Thank you for watching. If you have any questions or comments, please share them with us and I look forward to seeing you in the next lecture.

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