Ontario’s civil litigation system has been increasingly weighed down by expensive, time-consuming and often unnecessary procedural steps. Among these, examinations for discovery stand out as particularly problematic. While discoveries are intended to help parties clarify issues and obtain evidence to judge their respective positions, examinations for discovery frequently delay litigation, inflate costs and provide little meaningful benefit in many cases.
Parties often—but not always—know the facts of their case before commencing proceedings. On this basis, they or their counsel can assess the strength of their position. In such circumstances, discovery serves as little more than a strategic tool to delay litigation or drive up settlement pressure rather than a method to obtain evidence and assess each party’s case. Given this reality, Ontario should adopt a leave requirement for examinations for discovery, ensuring that they are only permitted when they serve a legitimate purpose in advancing an action.
The Problems: Costs, Delays and Minimal Yield
Examinations for discovery have become a litigation bottleneck, contributing to skyrocketing costs and procedural inefficiencies. The key issues include:
- Minimal Substantive Benefit – In many cases, relevant evidence is available through document production, and the parties know the facts of the case well enough to understand the evidence that will be presented at trial. Discovery often produces redundant or marginally useful information that does not often alter the course of litigation.
- Excessive Costs – Discovery-related legal fees—covering preparation, attendance, refusals, undertakings, and motions—can outstrip the value of the claim itself and are often only recoverable by a successful party years later.
- Significant Delays – Scheduling discoveries, contesting refusals, and resolving motions often add months or years to litigation, further burdening an already overstrained judicial system.
While examinations for discovery can be valuable in certain cases, their utility is most apparent in situations where the respective parties are actually unaware of each other’s knowledge and conduct—such as cases involving misrepresentation. In these types of disputes, discovery can help uncover the what the defendants and plaintiffs knew (or ought to have known), but in many other civil matters, its role is far less critical.
The Summary Judgment Problem: Judicial Reluctance to Use Available Tools
The Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 called for a more active approach to summary judgment, emphasizing that:
“There is no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits without a trial. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.” (Hryniak, para. 49)
The method most commonly used to sidestep unnecessary discoveries is a motion for summary judgment. However, many summary judgment motions continue to be rejected simply because the parties present competing affidavit evidence on a few issues, even when the motion judge has the power to resolve the dispute using enhanced fact-finding mechanisms such as weighing evidence, assessing credibility, or ordering a focused mini-trial. Instead of exercising these powers, courts default to requiring a full trial, prolonging litigation unnecessarily.
As long as judges remain hesitant to exercise their fact-finding powers under the summary judgment regime, examinations for discovery will continue to be used as a tool to delay litigation and drive up costs.
The Solution: Requiring Leave for Examinations for Discovery
A leave requirement for examinations for discovery would ensure that this procedural step is only available when it serves a legitimate purpose. This approach would:
- Reduce unnecessary costs by preventing discovery from being used as a default mechanism.
- Expedite litigation timelines by eliminating months of delays caused by discovery disputes.
- Encourage early case resolution by keeping the focus on substantive issues rather than procedural wrangling.
To obtain leave, a party would need to demonstrate that examinations for discovery are necessary based on a single factor: whether the party seeking leave to examine for discovery has no other method to reasonably predict the relevant evidence at trial of the party to be examined. Such a test would depend on the moving party’s actual or inferred knowledge as ascertained through affidavit evidence, documentary discovery to date and/or pleadings. Importantly, parties would be free to consent to or simply not oppose such a motion.
This would ensure that discovery is granted only in cases where it is truly needed, rather than being used as a procedural weapon to delay litigation and inflate costs.
The Rules of Civil Procedure are currently in the process of being rewritten, though the conclusions of that reform process remain unknown. This is a critical moment to consider an amendment that does not eradicate examinations for discovery but instead requires a party seeking discovery to demonstrate why it is necessary in a specific case. By implementing such a change, Ontario can strike the right balance between fair disclosure and procedural efficiency, ultimately making civil litigation faster, more affordable, and more just for all litigants.