Discovery

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 165-192

165

CHAPTER 7

DISCOVERY

A. INTRODUCTION

This chapter considers the obligations of parties to make pre-trial dis-

closure to one another of relevant documents and information. In the

common law it is believed that continuous oral trials are the fairest

and most effective means of resolving civil disputes. But a continu-

ous oral trial can only be fair if the parties are ready to present all the

evidence at the hearing that they need to support their case and if they

are not taken by surprise by the evidence presented against them by

other parties. If parties are unfairly taken by surprise at trial, it could

be necessary to adjourn the trial to enable them to gather evidence to

respond. Discovery is a key feature of the exchange of information that

the parties need to prepare for trial so as to prevent interruptions in

the hearing.

Despite the importance of discovery, the system of party prosecu-

tion will operate well only if certain communications and records are

protected from disclosure. In particular, solicitors and their clients need

to communicate freely with one another for the purposes of giving and

obtaining legal advice; counsel must be free to make communications

and records for the purposes of preparing their claims and defences

without the obligation to provide these materials to the other side in

advance of the trial; and parties need to be able to speak freely with one

another for the purposes of negotiating a settlement without concern

that admissions that they might make, deliberately or inadvertently,

CIVIL LITIGATION166

will be used against them should the matter proceed to trial. These

forms of privilege will be considered in the next chapter.

The process of def‌ining the issues and of giving notice of the evi-

dence supporting the parties’ claims and defences begins with the ex-

change of pleadings and it continues with discovery. The pleadings are

drafted when the claim is commenced. They contain only a general

outline of each party’s case based on what is known about the case at

that time. Often this will be limited to the information given by the

parties to their lawyers. It is just one side of the issues. There may be

many gaps and inaccuracies. The party may provide particulars if they

are requested, but these may contain points that a party does not ultim-

ately seek to prove at trial. The pleadings may also contain denials of

facts that are ultimately admitted to be true. Thus, many of the issues

that seem to be in dispute at the pleadings stage may be resolved by the

time of trial.

The difference between the parties’ statements of their claims and

defences in the pleadings and at trial is not necessarily due to a desire

to obstruct the process of resolving the dispute. It may, in part, be due

to the parties’ lack of information and understanding about the nature

and strength of the case on the other side. This lack of insight may

make them reluctant to resolve their differences. The pleadings consti-

tute an important step in the process of def‌ining the issues contained

in the claims or defences that the parties intend to present at trial, but

further exchanges of documents and information are needed to provide

an adequate foundation for the parties to understand their cases in or-

der to settle the matter or to prepare for trial.

B. HISTORY AND PURPOSE

Before the middle of the nineteenth centur y, there was no discovery in

common law procedure.1 Instead, the parties engaged in a complex pro-

cess of exchanging pleadings that was designed to identify the issues

that needed to be tried. It was not considered unfair to be surprised at

trial. It was thought that spontaneous responses were less likely to be

contrived. In the Chancery courts, however, plaintiffs would serve a

notice containing allegations and a detailed description of the evidence,

and defendants would respond by indicating which of the allegations

1 See, generally, Gar ry D. Watson & Craig Perkins, eds., Holmested a nd Watson

Ontario Civil Procedure (Toronto: Carswell, 1984 –) at Rule 31, §6, History of

Examin ation for Discovery.