Chapter 6: Discovery

• Pages: 146-175
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CHA PTER 6

DISCOVERY

A. INTRODUCTION

The civil litigation system seeks to ensure that parties are not taken by

surprise at t rial and prevented from meeting the case against t hem. Other-

wise, tri als would be interrupted and adjourned each time a party learned

something unexpected and h ad to prepare to answer it. To that end, the

discovery process requires that litigating parties produce the information

relevant to matters at issue in the case, well before the trial occurs. This

includes receiving relevant documents questioning relevant parties under

oath before trial. It also includes the option to inspect physical property, if

necessary, depending upon the case. This practice of early discovery al so

incentivizes settlement. Parties learn early on in the life of a case what the

case is about, and they ca n then narrow the issues or perhaps settle the

case altogether. Indeed, nearly all civil cases settle, and a large proportion

of them settle soon after discover y.

Discovery in civil litigation exists in different forms. Discovery of

documents, or what is commonly called production of documents or

“productions,” involves the parties gaining access to the relevant, non-

privileged documents in t he possession of the opposing parties. Ex amin-

ations for discovery are opportun ities for parties to ask specic questions

of one or more representatives of the other party, and on rare occasions

of non-parties, in order to inform themselves of the nature of the other

party’s claim or defence. Physical di scovery involves a party gaini ng ac-

cess to inspect a proper ty or location or, if relevant, the medica l health of

a party (typically an injured plaintiff) v ia a medical examination.

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Discover y 147

The pleadings in a civil action dene t he relevance of the matters

at issue in a case. They ser ve the important purpose of den ing the

issues the court w ill determine at trial as well as providing notice to

each party in t he litigation of the case they have to meet. Importa ntly,

through the discovery proce ss, the pleadings also control the ow of

relevant information about the dispute between t he parties. This is be-

cause courts use t he pleadings to determine what relevant inform ation

must be disclosed in a dispute.

The discovery process in Canada typical ly is conned to the par-

ties to the action, except with ver y rare exceptions and often only with

court permission. Only those parties in t he dispute are required to

produce information on discovery. This is in contrast to the United

States in which there is a r ight to “depose” non-parties and multiple

representatives of one party (such as employees in a corporate party).

In Canada, parties are typically restricted to conducting oral discover y

of only one representative per party in the dispute.1

While the civil lit igation system in Canada is ba sed on the adver-

sary system, t he parties must cooperate with one another dur ing dis-

covery. For example, the parties must exchange inform ation to ensure

that the relevant issues are canvassed before tri al and that each part y

has had a fair opport unity to present its case a nd answer the case pre-

sented by the other side. This includes part ies having to determine, for

their own case s, what is relevant and thus required to be produced to

the other side, if asked, during the discovery process.

The reasons for this are both practical and principled. In terms of

practicalities, it is more efcient and effect ive to require the parties to ex-

change documents and inform ation in their possession that are relevant

to the issues in di spute than it is to require them to pursue their own in-

vestigations and to base t heir cla ims and defences on what they are able to

learn independent ly.2 Furthermore, discovery ensures th at the court will

have the benet of the most complete and accurate case possible on each

side and, thereby, be in the best position to determine the fact s and decide

the case. Preventing “trial by ambush” is critical to t he underlying prin-

ciples of the adversary system because it safeguards t he continuous trial

process. Finally, an early exchange of inform ation in possession of each

1 See, e.g., Ontario, r 31.03(1) (for part ies), (2) (for corporations), and (3) (for

partnersh ips); Alber ta, r 5.17(1)(a) (for parties), (1)(b) (for corporations), and (1)

(f) (for partnersh ips); British C olumbia, r 7-2(1) (for parties) and (5) (for a party

that is not an ind ividual); and Nova Scotia, r 18.01 (for parties) and 18.03(3) (for

corporate pa rties).

2 David Louis ell & Barry Wally, Modern Ca lifornia Discovery, 2d ed. (San Fr an-

cisco: Bancroft-Whitne y, 1972) at 1–6.