Written by David Sterns on April 17, 2025

LITIGATORS— Where is the evidence that our system of documentary and oral discovery needs to be discarded?

Why are we gutting discovery just as we enter the AI era, which promises to make the exchange and review of documents faster, cheaper, and more efficient than ever before?

In serious personal injury cases, medical malpractice, institutional abuse claims, and consumer fraud litigation, discovery is often the only way plaintiffs can level the playing field—to uncover what really happened inside an organization.

Are refusals motions frustrating? Absolutely. So why not eliminate them altogether? State your objection under R. 34.12, but answer the question and leave it to the trial judge to decide relevance. That is what Justice Myers ordered in 2287913 Ontario Inc. v. ERSP International Enterprises Ltd. 2017 ONSC 7185 and that is the default under the U.S. Federal Rules of Civil Procedure.

Was discovery being abused? I’ve seen no evidence of that. The real problem? Limiting disclosure to a “trust us” standard. Forcing plaintiffs to guess what to ask for, then denying them for being too vague. And removing the only way to probe a party’s actual evidence – as opposed to lawyer-written evidence by interrogatories – before trial.

Ontario’s existing discovery regime isn’t broken. It is already far more limited than in the U.S. – 7 hour limits on examinations and a limit of one representative per party. Eliminating discovery will have far-reaching impacts on vulnerable plaintifffs who need it to prove their cases. It will also lengthen trials and increase trial by ambush.

Scrapping discovery won’t improve efficiency. It will make it harder for vulnerable plaintiffs to prove their claims. This should not happen without broad consultation with experienced lawyers practicing in personal injury, insurance defence, medical malpractice, those representing vulnerable victims seeking justice in complex fraud cases, and legal clinics.

If you work with vulnerable clients or in complex litigation, now is the time to engage. Contact your association – OBA, TAS, FOLA, OTLA, CDL – and make sure that your clients’ interests are not left behind. The consultation is open until June 16, 2025. We are preparing access-to-justice–focused submissions and welcome others to contribute.

Let’s make sure well-intentioned reform doesn’t put justice even further out of reach.

Reach out to me at dsterns@sotos.ca if you’d like to get involved.

#AccessToJustice #CivilReform #OntarioLaw #Litigation #FraudVictims #RulesOfCivilProcedure #JusticeForAll