The obligation to agree on a discovery plan remains with the parties – and Ontario’s courts will not impose a plan barring any exceptional circumstances, particularly at the early stages of a proceeding.

In Teti v. Mueller Water Products Inc. [2015] O.J. No. 1760, the court dismissed the plaintiffs’ motion for a discovery plan. In doing so, Master Dash found that:

  1. Where pleadings had not been finalized, a discovery plan should not be imposed, particularly a detailed plan dealing with contested issues about the scope of discovery and who can be discovered.
  2. A motion for a discovery plan is not the appropriate place to determine contested issues such as a dispute over the plaintiffs’ right to examine particular discovery witnesses.
  3. The obligation is on the parties to “agree” on a discovery plan. While a discovery plan may be imposed upon a party who is unwilling to agree to a plan, “the ability of a party to bring a motion every time disagreement arises in the creation of a discovery plan undermines the obligations of the parties under this rule. Except in exceptional circumstances, that obligation should remain on the parties and result in the dismissal of such a motion”.

In Teti, when attempting to agree on issues, the parties often talked at cross-purposes or co-operated only when it was convenient. Master Dash directed the parties to make further efforts to create their own plan and to mediate the issue if they could not reach agreement. Only after this would the Master consider imposing a discovery plan.

The bottom line: Half-hearted attempts to confer with counsel and agree on a discovery plan are insufficient. Counsel must co-operate to create a plan and think twice before bringing a motion.