Principles of Efficiency and Professionalism

How can the principles of cost and time efficiency and professionalism be more effectively brought to bear on the interpretation and application of the discovery rules?

Current Rules

Preambles, or principle-based rules, provide a framework within which the rules are to be interpreted and applied. Courts, in interpreting the rules, are expected to look to these purpose-based rules for guidance.⁵⁹³ They are also meant to serve as a guide for lawyers and unrepresented litigants on the appropriate use of the rules. Rule 1.04 states:

1.04 These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

The purpose section in rule 77 sets out the objective of case management:

77.02 The purpose of this Rule is to establish a case management system throughout Ontario that reduces unnecessary costs and delay in civil litigation, facilitates early and fair settlements and brings proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding.

593 See, e.g., 922230 Ontario Ltd. v. Alarmforce Industries Inc. (1999), 40 C.P.C. (4^th) 373 (Case Mgt. Master).

Discussion

The findings suggest that the directive in rule 1.04 to “to secure the just, most expeditious and least expensive determination” is not consistently observed in applying the discovery rules. In liberally construing the discovery rules to be as expansive as possible, lawyers and judges may underemphasize the importance of cost and time considerations. This can have the unintended effect of impeding access to justice for many litigants. Recent case law suggests that the court should apply the principle of proportionality in appropriate cases, including the shifting of costs associated where warranted.⁵⁹⁴

The Task Force has heard that the discovery process can be prohibitively expensive for individual or small business litigants. A statistically significant proportion of lawyers consider discovery costs to be disproportionately high. Approximately 20% of respondents to the case specific survey in Ottawa and Toronto stated that discovery costs were relatively too high

compared to their clients’ stake in the case; 25% said discovery costs led their client to pursue an alternative course of action. Many lawyers also complain about conduct and tactics of counsel that increase the expense and duration of discovery, and the court’s reluctance to intervene.

The Task Force is of the view that a stronger directive, or preamble, will help to discourage time-consuming and costly practices. A number of jurisdictions have developed preambles to help govern parties’ conduct during the discovery process and to provide courts with a basis for imposing appropriate remedies or sanctions; some of them incorporate the principle of proportionality. Quebec, for example, has recently enacted a more extensive preamble in its Code of Civil Procedure⁵⁹⁵, which provides:

4.1 Subject to the rules of procedure and the time limits prescribed by this Code, the parties to a proceeding have control of their case and must refrain from acting with the intent of causing prejudice to another person or behaving in an excessive or unreasonable manner, contrary to the requirements of good faith.

4.2 In any proceeding, the parties must ensure that the proceedings they choose are proportionate, in terms of the costs and time required, to the nature and ultimate purpose of the action or application and to the complexity of the dispute; the same applies to proceedings authorized or ordered by the judge.

U.K.’s civil rules prescribe a detailed “overriding objective” in rule 1.1:

1.1 The overriding objective

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable – (a) ensuring that the parties are on an equal footing;

594 See, e.g., Business Depot Ltd. v. Genesis Media Inc. (2000) 48 O.R. (3d) 402 (S.C.J.), where the court ordered the requesting party to pay the costs of searching for and copying documents stored in over 1,000 boxes where the requesting party’s counterclaim was tenuous.

595Bill 54 – An Act to reform the Code of Civil Procedure (in force as of January 1, 2003).

(b) saving expense;

(c) dealing with the case in ways which are proportionate – (i) to the amount of money involved;

(ii) to the importance of the case;

(iii) the complexity of the issues; and (iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.⁵⁹⁶

Both the court and the parties have a duty to apply and further the overriding objective.⁵⁹⁷ In furtherance of the overriding objective, the court must actively manage cases, which includes encouraging the parties to co-operate, identifying issues at an early stage, fixing timetables and otherwise controlling the progress of the case.⁵⁹⁸

Alberta’s rule 216.1, while not a preamble, provides that where “the expense, delay, danger or difficulty in complying fully [with discovery obligations] would be grossly disproportionate to the likely benefit,” the court may make various orders to modify the requirements in the rules.

The purpose section of rule 77 expresses principles that the Task Force believes should be brought to bear not only on the discovery process, but the entire litigation process. Broader than rule 1.04, rule 77.02 directly addresses the need to reduce unnecessary cost and delay, to facilitate early and fair settlements and to bring proceedings expeditiously to a just determination. The Task Force recommends replacing the wording in rule 1.04 with that in rule 77.02 in order to provide the court with a very clear rationale for limiting discovery where appropriate.

The Task Force is of the view that the preamble should also signal – to the court and the bar – the level of professionalism that is expected of lawyers in conducting litigation and discovery activities. As noted earlier, rule 4.01(4) of the Rules of Professional Conduct prescribes a lawyer’s obligation to explain to his or her client the necessity of making full disclosure and answer

questions, to assist the client in making full disclosure, and to refrain from making frivolous requests for productions or information. Rule 4.01(7) requires a lawyer to strictly and

scrupulously carry out undertakings.⁵⁹⁹ These provisions were introduced in November 2001 to re-enforce a lawyer’s obligations under the Rules of Civil Procedure.

596 U.K. Rules, rule 1.1

597 U.K. Rules, rule 1.2, rule 1.3

598 U.K. Rules, rule 1.4.

599 Law Society of Upper Canada, Rules of Professional Conduct, (in effect Nov 1, 2001), rule 4.01:

Discovery Obligations

4.01(4) Where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate

(a) shall explain to his or her client:

( ) the necessity of making full disclosure of all documents relating to any matter in issue; and ( ) the duty to answer to the best of his or her knowledge, information, and belief, any proper question

relating to any issue in the action or made discoverable by the rules of court or the rules of the tribunal;

(a) shall assist the client in fulfilling his or her obligations to make full disclosure; and

The Task Force recommends that these provisions be directly integrated into the Rules of Civil Procedure, both to reiterate their importance and to enhance their accessibility. In making this recommendation, the Task Force does not seek to empower the court to regulate the conduct of lawyers, but to provide the court with guidance in making determinations with respect to abuse of the discovery rules.

Recommendations:

Incorporate into rule 1.04 language from rule 77.02 to provide that “the rules shall be construed so as to reduce unnecessary cost and delay in civil litigation, facilitate early and fair settlements and bring proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding.”

Incorporate the wording of rule 4.01(4) and (7) of the Rules of Professional Conduct into a new discovery rule.

16. BEST PRACTICES MANUAL