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.