One of the CRR’s most controversial ideas is eliminating oral examinations for discovery (currently Rule 31).
The Discussion Paper argues that their proposed “up-front evidence model” would do much of the same work currently done in discoveries, do it more quickly and cheaply, and get it done earlier in the life of the case.
But an unusual consensus between the voice of the plaintiffs, and the voice of the defendants, gives us good reason to believe that Rule 31 should survive (at least for personal injury matters).
Personal injury matters account for a large proportion of all the litigation conducted under the Rules of Civil Procedure. In the typical PI case, an individual claiming an injury sues an insurance company.
Plaintiff-side lawyers have an institutional voice: the Ontario Trial Lawyers Association (OTLA). So do counsel for the defendants: Canadian Defence Lawyers (CDL).
Naturally, the OTLA and the CDL will often be found on opposing sides of policy debates, such as civil jury trials. And so it was very interesting to see that early comments on the CRR, from both the OTLA and CDL, show no enthusiasm for abolishing examinations for discovery.
OTLA President-Elect Mary-Anne Strong was quoted by Law360 expressing support for oral discoveries. The CDL hasn’t yet explicitly supported them, but it did twice express surprise that they have been placed on the chopping block without more consultation. The CDL also noted on LinkedIn that idea of abolishing Rule 31 is “of particular concern to many CDL members.”
If both the OTLA and CDL support examinations for discovery, that seems to be a very good reason to preserve them.
Their consensus in favour of Rule 31 would strongly suggest that examinations don’t favour plaintiffs at the expense of defendants, or vice versa.
What if the Lawyers are Advocating for Themselves?
But what if — a cynic might ask — examinations enrich lawyers on both sides at the expense of their clients? The unique economics of the personal injury bar should put this fear to rest, if the OTLA and CDL are in favour.
Plaintiff-side lawyers generally bill on a contingency basis, not by the hour. They are not paid for all the hours they spend in examinations for discovery. They have no pecuniary incentive to support them unless they think their benefit (in bringing about speedy and acceptable resolutions) justifies all the time they require.
As for the CDL, many of its lawyers are employed full-time by insurance companies. These people also have no personal financial incentives to speak up for examinations, because they don’t bill by the hour for the time they spend in them.
What about Court Time?
As the Civil Rules Review correctly observes, judicial resources are scarce in Ontario and not likely to grow much any time soon. We shouldn’t cling to bits of procedure that clog the courts and inflate their backlogs, even if they work well for the parties who are lucky or persistent enough to get a chance to use them.
But examinations for discovery happen out of court. When they work as envisioned by Rule 31, they require no judicial time at all.
What does require court time are the “undertakings and refusals” motions that arise from disagreements in examinations. But how much time? How many of these motions happen in Ontario? How long do they take? This is data that should be available to a civil justice project backed by both the Chief Justices and the Attorney General. Making this sort of decision — which could have enormous consequences– without taking a bit of time to look at the data seems irresponsible.
Suppose the answer turns out to be that motions arising from Rule 31 consume way more time and money than they are worth. Does that mean that the examinations themselves should be abolished? An alternative exists — abolishing or greatly curtailing the motions, and using other mechanisms (such as Rule 34.12) to deal with the disputes. The CRR should take the time to evaluate these alternatives before it takes the drastic step of ending discoveries completely.
The fact that stakeholders agree on a policy can’t end the inquiry. The interests of all affected individuals matter, including those who are outsiders or don’t know that they are affected by it.
But when sophisticated institutional representatives who represent opposing sides — like the OTLA and the CDL — agree on something, and they don’t seem to have any pecuniary conflicts of interest, then decision-makers should take their views very seriously indeed.
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