Civil justice reform report addresses discovery abuse

On November 22nd the Ontario government released the Summary of Findings and Recommendations from the Civil Justice Reform Project. The report, authored by The Honourable Coulter Osborne, contains 81 recommendations on civil justice reform. Here is a summary of the four recommendations most significant to the readers of this blog, with excerpts from Mr. Coulter’s rationale for each.

1. Establish proportionality as an overarching principle of interpretation

Proportionality, in the context of civil litigation, simply reflects that the time and expense devoted to a proceeding ought to be proportionate to what is at stake. It should be expressly referenced in the Rules of Civil Procedure as an overarching, guiding principle when the court makes any order.

2. Narrow the scope of discovery by implementing a “relevance” standard

The “semblance of relevance” test ought to be replaced with a stricter test of “relevance.” This step is needed to provide a clear signal to the profession that restraint should be exercised in the discovery process and, as the Discovery Task Force put it, to “strengthen the objective that discovery be conducted with due regard to cost and efficiency.” In keeping with the principle of proportionality, the time has come for this change to be made, which I hope in turn will inform the culture of litigation in the province, particularly in larger cities.

3. Give weight to the Ontario E-Discovery Guidelines and Sedona Canada Principles

I believe it would help if reliance on the E-Discovery Guidelines and The Sedona Canada Principles were encouraged through a Practice Direction. This would state that the court may refuse to grant discovery relief or may make appropriate cost awards on a discovery motion where parties have failed to consider and, to the extent reasonable, apply the E-Discovery Guidelines and The Sedona Canada Principles – in particular the requirement to meet and confer on the identification, preservation, collection, review and production of electronically stored information.

4. Make litigation budgets mandatory

In addition, counsel should as a matter of routine provide clients with a pro forma budget setting out, albeit in a somewhat imprecise way, the estimated cost (legal fees and disbursements, including expert witness fees) of commencing or defending a proceeding. Periodic updates should also be provided. There is, of course, no need for this in personal injury litigation where contingency fee arrangements are typical. Nor would this requirement be applicable to defence counsel retained by property (casualty) insurers who have developed their own methods of controlling solicitor and client cost exposure.

The government has stated that Mr. Coulter’s full report will be released later this year.

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