The Complete Discovery Model
Our current discovery framework, introduced in 1985, requires parties to identify, list, produce, and review all non-privileged documents in their possession, control, or power that are relevant to any live issues in the proceeding. Following this, parties may proceed to oral examinations under Rule 31 of the Rules of Civil Procedure.
The complete discovery model provides many benefits. It allows parties to evaluate the evidence presented against them and to assess the strengths and weaknesses of their case. However, with the introduction of the internet, email, and social media, this landscape has changed. The resulting explosion of electronic data has increased the scope, cost, and burden of documentary discovery. What was once seen as a manageable evidentiary system has become far less manageable in many cases.
Oral examination, a second pillar of the complete discovery model, helps parties gather information, test credibility, and secure admissions important to the litigation process; however, it often comes at a high cost.
Since 1985, there have been repeated attempts to rein in documentary discovery. These efforts include the 2010 amendments to the Rules, which modestly tightened “relevance standards” and introduced proportionality as a guiding principle. While well-intentioned, these reforms largely address the symptoms rather than the underlying issue: the persistence of a “delayed case theory” that rewards overbroad pleadings and drives excessive production before the issues are defined.
Under the current framework, litigants are not required to consolidate their theories of the case until much later, often on the eve of trial. The Rules incentivize parties to plead claims as broadly as possible, which expands the permissible scope of discovery. This strategy permits parties to request large volumes of documents and conduct wide-ranging oral examinations. In practice, the result is predictable: delays, escalating costs, and an increasingly time-consuming process.
A fundamental shift away from the complete discovery model has been brewing in this province via the Ontario Civil Rules Review (CRR). The latest proposal is contained in the CRR Working Group’s Final Policy Report, which was released on December 15, 2025 (dated October 31, 2025) and can be found HERE.
Civil Rules Review Newest Proposal: The Up-Front Evidence Model with Limited Oral Discovery
The Up-Front Evidence Model restructures discovery into a staged approach that begins before the close of pleadings.
The process starts with initial disclosure (or “claim-based” disclosure). Each party would, when serving its pleading, produce all non-publicly available documents referred to in the pleading that are within its possession, control, or power. Here, parties will be required to provide (a) a link to the document if the document is available online or (b) a copy of the document if the document is publicly available, but not accessible online (see page 87 of the Final Policy Report).
After the close of pleadings, according to a prescribed timetable, parties would move to primary disclosure. At this stage, each party must produce the documents it intends to rely on to prove its case, with an opportunity to request specific categories of additional documents thereafter (see pages 87, 99-101). Parties would also serve sworn witness statements and expert evidence schedules. Witness Statements would reflect a concise statement of a party’s evidence and should not contain submissions, lengthy references, opinions, or other inadmissible evidence (see page 87).
If a party remains dissatisfied after claim-based or primary disclosure, the proposed Up-Front Evidence Model permits targeted supplementary disclosure (see page 100). Any further production would be limited to specific documents, rather than being subject to open-ended discovery demands.
The objective of the Up-Front Evidence Model is to compel parties to clarify the real legal issues in dispute and to focus on resolution on an accelerated timeline. By front-loading the exchange of core evidence, this model aims to eliminate much of the delay, cost, and gamesmanship that have impeded traditional litigation.
Despite this, stakeholders have expressed some immediate concerns that the model would front-load costs and disproportionately burden smaller firms and individual litigants. They also warned that limiting oral discovery, as the Up-Front Evidence Model proposes, could undermine credibility testing and meaningful settlement discussions.
Although the Working Group’s initial proposal contemplated eliminating oral examinations altogether, the Working Group has since determined that complete removal is not tenable (see pages 90-91). Instead, oral discovery will be allowed only in specific situations (i.e., in high-value and complex cases on the “Trial Track”). In the Trial Track of the new model, “focused examinations” are limited to 90 minutes per side, with an extra 30 minutes for each additional defending party (see page 103). Refusals would be curtailed to require that all questions be answered unless the question intrudes on privilege, is scandalous, or is so misleading as to be unfair and inappropriate. All examinations would be recorded using audio and video.
The Working Group asserts in its Final Policy Report that the early issue narrowing and well-defined examinations that are now a part of the Up-Front Evidence Model will reduce overall costs and delays without sacrificing fairness. To allow flexibility, the model also includes a track system that preserves time-limited oral examinations where proportionate, introduces video recording to support credibility assessments, and prioritizes paper-based resolutions where appropriate (see pages 95-101).
Many issues and recommendations raised during the consultation stage are under active consideration. Although the final details of the model have yet to be settled, one conclusion is unavoidable: significant change is contemplated.
For more information, please refer to the full report: Civil Rules Review – Final Policy Report, dated October 31, 2025.
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