AuthorJanet Walker/Lorne Sossin
ProfessionOsgoode Hall Law School, York University/Faculty of Law, University of Toronto
This chapter considers the obligations of par ties to m ake pre-trial dis-
closure to one another of relevant documents and i nformation. 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 tr ial can only be fair if the pa rties 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 partie s. If parties are unfairly taken by surprise at tr ial, it could
be necessa ry 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 interr uptions in
the hearing.
Despite the importance of discovery, the system of party prosecu-
tion will operate wel l only if certain communicat ions 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; couns el must be free to make communications
and records for t he purposes of preparing their claims and defences
without the obligation to provide these material s 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,
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 part ies’ claims and defences begins with the ex-
change of pleadings and it continues with di scovery. The pleadings are
drafted when the claim is commenced. They conta in only a general
outline of each party ’s case based on what is known about the cas e at
that time. Often this will be limited to the informat ion given by the
parties to their lawyers. It is just one side of the issues. There m ay 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 ultim ately 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 bet ween the parties’ st atements of t heir claim s and
defences in the plead ings and at t rial is not necessar ily due to a de sire
to obstruct the process of resolving the dispute. It may, in part, be due
to the partie s’ lack of information and understanding about the n ature
and strength of the case on the other side. This lack of insight may
make them reluctant to resolve their dif ferences. The pleadings consti-
tute an important step in the process of def‌ining the issues contained
in the claim s 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 understa nd their cases in or-
der to settle the matter or to prepare for trial.
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 i ssues
that needed to be t ried. It was not considered unfair to be surprised at
trial. It was thought t hat spontaneous responses were less likely to b e
contrived. In the Chancery courts, however, plaintiffs would serve a
notice containing allegations and a detailed description of the evidence,
and defendant s 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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT