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What is a discovery plan?

The use of discovery plans in personal injury actions – consequences for failing to implement one.

 

Rule 29.1 provides that all parties must agree to a discovery plan for the conduct of the steps in the action. The Rule states as follows:

 

DISCOVERY - RULE 29.1 DISCOVERY PLAN

 

NON-APPLICATION OF RULE

 

29.1.01 This Rule does not apply to parties who are subject to a discovery plan established by the court under clause 20.05 (2) (d). O. Reg. 438/08, s. 25.

 

DEFINITION

 

29.1.02 In this Rule,

“document” has the same meaning as in clause 30.01 (1) (a). O. Reg. 438/08, s. 25.

 

DISCOVERY PLAN

 

Requirement for Plan

 

29.1.03 (1) Where a party to an action intends to obtain evidence under any of the following Rules, the parties to the action shall agree to a discovery plan in accordance with this rule:

 

1. Rule 30 (Discovery of Documents).

2. Rule 31 (Examination for Discovery).

3. Rule 32 (Inspection of Property).

4. Rule 33 (Medical Examination).

5. Rule 35 (Examination for Discovery by Written Questions). O. Reg. 438/08, s. 25.

 

Timing

 

(2) The discovery plan shall be agreed to before the earlier of,

(a) 60 days after the close of pleadings or such longer period as the parties may agree to; and

(b) attempting to obtain the evidence. O. Reg. 438/08, s. 25.

 

Contents

 

(3) The discovery plan shall be in writing, and shall include,

(a) the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action;

(b) dates for the service of each party’s affidavit of documents (Form 30A or 30B) under rule 30.03;

(c) information respecting the timing, costs and manner of the production of documents by the parties and any other persons;

(d) the names of persons intended to be produced for oral examination for discovery under Rule 31 and information respecting the timing and length of the examinations; and

(e) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action. O. Reg. 438/08, s. 25.

 

Principles re Electronic Discovery

 

(4) In preparing the discovery plan, the parties shall consult and have regard to the document titled “The Sedona Canada Principles Addressing Electronic Discovery” developed by and available from The Sedona Conference. O. Reg. 438/08, s. 25.

 

DUTY TO UPDATE PLAN

 

29.1.04 The parties shall ensure that the discovery plan is updated to reflect any changes in the information listed in subrule 29.1.03 (3). O. Reg. 438/08, s. 25.

 

FAILURE TO AGREE TO PLAN

 

29.1.05 On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule. O. Reg. 438/08, s. 25.

 

The Discovery Plan rule has been in place for more than 3 years and it is safe to say that not all lawyers embrace the concept.  In many cases we handle, lawyers simply refuse to use Discovery Plans. In our experience, many Discovery Plans submitted to us are over-reaching and much too broad which results in disagreements on the conduct of the steps in the action. In other cases, the Discovery Plans are either not submitted at all or over simplistic to give the parties any real assistance. Some lawyers believe that the addition of the Discovery Plan is simply the addition of another step in an already existing over crowded set of procedures.

 

The Rule mandates the use of Discovery Plans and lawyers must work together to agree on a plan. In the event the parties cannot agree on a plan, the Court has discretion to impose one.

 

What happens when a party refuses to agree on a plan? Discovery plans are intended to expedite the discovery process and save the parties expenses.

 

Where a party has failed to agree to implement a Discovery Plan, the other party may file a motion seeking to impose a plan. Rule 29.1.05 gives the Court discretion to "refuse to grant any relief or award any costs" on a motion related to discovery "if the parties have failed to agree to or update a discovery plan in accordance with this Rule ". How has this rule been applied?

 

Where opposing counsel has failed to respond to a Discovery Plan, the Court has imposed a plan with costs.

 

Where counsel have conferred but failed to reach an agreement on the terms of a Discovery Plan, the Court has opined that the proper step is to file a motion to impose a plan rather than file a motion seeking productions.

 

Where all parties failed to prepare and implement a Discovery Plan, the Court has dismissed motions for productions and directed the parties to confer so as to reach an agreement on a Discovery Plan, failing which to return to court on a motion seeking directions.  In essence, when seeking relief from the Court, the moving party had better have submitted a reasonable Discovery Plan.                                            

 

Where a party fails to execute or respond to a proposed Discovery Plan, the Court will impose a Discovery Plan on a motion and order costs.

 

In the end, if a party intends to seek costs for the failure of the opposing party to agree on a Discovery Plan, it ought to show reasonable steps taken to submit and agree on a plan.  If agreement is not reached in the face of reasonable steps taken, based on the case law, the appropriate step to take is to file a motion seeking an order imposing a Discovery Plan with costs.

 

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