Discovery

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

165

CHA PTER 7

DISCOVERY

A. INTRODUCTION

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,

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 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.

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 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.