The start of this new decade coincides with the beginning of a new era in civil litigation in Ontario with the coming into force of the most significant amendments to the Ontario Rules of Civil Procedure since 2005.
The main purpose of these amendments is to make the civil justice system more accessible and affordable to Ontarians. We have heard and read a lot about why these amendments are critical to civil justice in Ontario and what the amendments entail.
The specific challenges in effectively implementing these amendments and whether the amendments will be a success remain to be seen.
Let me offer a preliminary view, focusing on only one category of amendments; those relating to discovery.
The changes to the discovery rules have been heralded as a positive step towards controlling the time and expense associated with discovery, especially in the electronic age.
Let me touch upon three of them. First, the phrase “relating to any matter in issue” in the rules has been replaced with the words “relevant to any matter in issue.”
It can legitimately be argued that only a lawyer would suggest that there is a difference between the two. Of course, the purpose of the change is to bury the “semblance of relevance” test and replace it with what has been described as a stricter test of “relevance.”
We are told this change is a clear signal to counsel that discovery must be more focused. This may be so, but it is far from clear how this change will work in practice.
What is the difference between semblance of relevance and relevance? Do counsel need to establish that a document is in fact relevant or is it sufficient that it is reasonably possible that the document is relevant?
A stricter test (such as the former) may create an injustice, especially in the case of a party (usually a plaintiff) who does not yet have the disclosure or information necessary to prove actual relevance but is pursuing what could reasonably be a legitimate line of inquiry that could very well turn out to be relevant.
What is obvious is that, at least in the next few years, this amendment will add to the cost and duration of many cases as counsel bring motions to clarify what this new relevance test means in practice.
Our masters and judges are critical to the successful implementation of this test. They need to quickly and cost-effectively resolve disputes about the limits and meaning of the new test, finding the right balance between its rationale and the need to safeguard legitimate lines of reasonable inquiry that may be relevant to the litigation as it unfolds.
Second, the new discovery rules have a built-in “counsel co-operation” component.
For example, oral examinations are limited to seven hours per party, unless the parties consent or the court orders otherwise. Also, counsel must agree to a discovery plan before they can begin to obtain evidence through the discovery process. There are other examples but these two will suffice.
The significance of these is that co-operation and professionalism among counsel is critical to the success of the new discovery regime.
Unco-operative and unreasonable counsel will simply use the new rules as a tool to increase the expense and delay of civil litigation, for example, by not agreeing to more than seven hours of discovery in a case where more time is clearly necessary, forcing the other party to incur the time and expense of bringing a motion. This risk is not to be underestimated and it is a risk that can only be minimized by an active and well-resourced judiciary.
The judiciary must discourage unco-operative and unreasonable conduct of counsel for these amendments to work. Counsel need to have real-time access to judges and masters, not have to wait months for a motion to settle a discovery plan or timetable for discovery.
Sufficient court resources are critical to the success of these rule changes. These amendments will be the problem, rather than the solution, without ready access to the court in cases involving unco-operative or unreasonable counsel.
If difficult counsel know a judge or master is a phone call away, they will be forced to be reasonable and resolve all but those issues that truly need the court’s attention. Otherwise, they would face the wrath of a judiciary that has several tools at its disposal to address unreasonable and unco-operative counsel, including sanctions under the current rules, as well as the The Advocates’ Society’s principles of civility and professionalism.
Third, a major new theme of discovery is proportionality.
Proportionality is the tool provided to make civil litigation affordable again. Proportionality is a relevant consideration in all discovery-related motions, in addition to relevance.
The stage is certainly set for a court to order, for instance, that a party does not have to search for and produce documents, even if relevant, where that search and production is time-consuming and expensive, and the resulting production will be extensive and/or will interfere with the conduct of the action.
Applying the principle of proportionality will be a difficult call. Counsel and the judiciary are not currently predisposed to a regime where costs and delay can trump relevance. They have all grown up in a regime where there is an undeniable right to a relevant, non-privileged document.
Surely, the application of the principle of proportionality will amount to a balancing exercise, but one hopes the more clearly relevant the line of inquiry or the document, the higher the onus need be on the party seeking to prove that the burden of disclosure outweighs relevance. If not, only increased concern about effective access to justice will be the response to these amendments.
On a related point, proportionality is also a required consideration when developing a discovery plan. The new rules provide that the Sedona principles regarding electronic discovery be considered. These principles require the parties, when planning the steps in electronic discovery, to consider the nature of the litigation, the relevance of the evidence, and the importance of the evidence to the adjudication of the dispute (among other things).
This is a laudable goal but is it going to be effective in all cases considering a discovery plan is formed before the production of any documents? In many cases, it will not be possible to consider these principles, at least fully, before having seen some or all of the opposing party’s documents.
We can all think of at least one case in our career where the importance of a document or category of documents was not apparent until it was viewed in the context of other documents having been disclosed by the other side.
But more fundamentally, an appropriate understanding and implementation of the principle of proportionality is key to the success of these discovery amendments.
What is proportionality? Does it mean that only big-money cases deserve more extensive discoveries? It should not.
Does it mean that big-money cases always deserve more extensive discoveries? Again, the answer should be no.
Does it mean that, leaving money aside, some issues are more important than others and therefore more deserving of more extensive discovery or the court’s time?
Who defines importance, and how, and to what extent does it depend on the subjective views of the parties? Are issues of principle and purely monetary issues to be treated differently and, if so, how?
These are difficult questions that will have to be answered by the judiciary as it grapples with the new age of proportionality in the next few years.
Like the change in the test of relevance, the integration of proportionality as a fundamental principle of discovery will be the subject of increased motion practice in the upcoming years.
It is also important to remember that an understanding of proportionality comes with experience. The more cases in which one is involved, the easier it is to focus on what is truly important and to not lose sleep over leaving certain peripheral stones unturned.
For young counsel, who are trained to be careful and thorough, this is more difficult. This is especially true in the age of declining court opportunities for young advocates, and when young advocates are involved in discrete tasks only and are not involved in the overall development of a case.
The challenge is made more difficult by the fact that young advocates are not receiving the benefit of the mentoring that more senior counsel experienced in their early years. Effective and hands-on mentoring needs to be a major continuing focus for Ontario advocates so that our younger advocates have the training and guidance to make them successful navigators through the sea of proportionality.
I agree that we as a profession had no choice but to significantly revamp our approach to discovery. The delay and expense of civil litigation, especially in the electronic-discovery age, rendered it unaffordable to all but the very wealthy. Some may be concerned about the rocky years that certainly lie ahead of us as counsel and the judiciary grapple with the interpretation and effective implementation of the new rules.
What is clear is that the amendments will not serve their purpose unless both advocates and the judiciary step up to the challenge and approach these amendments with an even stronger commitment to the principles of civility, professionalism, mentoring, and effective access to justice.
I believe we are up to that challenge. We have no choice if we want a functioning civil justice system in Ontario for the next generation of advocates.
Sandra A. Forbes is a partner with Davies Ward Phillips & Vineberg LLP and president of The Advocates’ Society.