Written by David Sterns on April 17, 2025<\/p>\n\n\n\n
LITIGATORS\u2014 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?
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#AccessToJustice<\/a> #CivilReform<\/a> #OntarioLaw<\/a> #Litigation<\/a> #FraudVictims<\/a> #RulesOfCivilProcedure<\/a> #JusticeForAll<\/a> <\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" Written by David Sterns on April 17, 2025 LITIGATORS\u2014 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?<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"no-feature-img","format":"standard","meta":{"footnotes":""},"categories":[21],"tags":[14,15,18,20,17,16,19],"class_list":["post-108","post","type-post","status-publish","format-standard","hentry","category-urgent","tag-accesstojustice-2","tag-civilreform-2","tag-fraudvictims","tag-justiceforall-2","tag-litigation-2","tag-ontariolaw-2","tag-rulesofcivilprocedure-2"],"_links":{"self":[{"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=\/wp\/v2\/posts\/108","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=108"}],"version-history":[{"count":4,"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=\/wp\/v2\/posts\/108\/revisions"}],"predecessor-version":[{"id":144,"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=\/wp\/v2\/posts\/108\/revisions\/144"}],"wp:attachment":[{"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=108"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=108"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/civiljusticewatch.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=108"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\u2014to 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\u2019ve seen no evidence of that. The real problem? Limiting disclosure to a \u201ctrust us\u201d 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\u2019s actual evidence – as opposed to lawyer-written evidence by interrogatories – before trial.
Ontario\u2019s existing discovery regime isn\u2019t 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\u2019t 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\u2019 interests are not left behind. The consultation is open until June 16, 2025. We are preparing access-to-justice\u2013focused submissions and welcome others to contribute.
Let\u2019s make sure well-intentioned reform doesn\u2019t put justice even further out of reach.
Reach out to me at dsterns@sotos.ca<\/a> if you\u2019d like to get involved.<\/p>\n\n\n\n