Ontario Civil Discovery: Examinations for Discovery, Documentary Production, and Undertakings

Documentary Discovery: The Affidavit of Documents

Rule 30 governs documentary discovery. Each party must serve and file an affidavit of documents (Form 30A) listing all documents relevant to any matter in issue in the action that are or have been in the party's possession, control, or power: Rule 30.03(1).

The affidavit of documents has three schedules:

• Schedule A: Documents in the party's possession, control, or power that the party does not object to producing. These must be produced for inspection.
• Schedule B: Documents in the party's possession, control, or power for which the party claims privilege — must identify each document and state the grounds of privilege.
• Schedule C: Documents that were in the party's possession, control, or power but are no longer — must identify each document and state where it is believed to be and when and how it ceased to be in the party's possession.

The obligation to produce is ongoing. Rule 30.07 requires a party who comes into possession of a relevant document after serving the original affidavit to immediately serve an amended affidavit disclosing the new document. Failure to update the affidavit of documents can result in exclusion of the document at trial under Rule 30.08 or costs consequences.

Relevance: The Scope of Documentary Production

The test for relevance in documentary discovery is broader than the test for admissibility at trial. A document is relevant if it may reasonably be expected to significantly help establish or disprove a fact in issue, or if it may lead to a train of inquiry that reveals relevant documents. The leading statement of the standard comes from Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 — a document is relevant if it may "either directly or indirectly enable the party to advance his own case or to damage the case of his adversary."

Ontario courts have adopted the broad Peruvian Guano standard for documentary production. Relevance disputes are common in commercial litigation involving large document sets. Courts balance the broad relevance standard against proportionality — Rule 29.2 and Rule 1.04(1.1) require the court to consider the time and expense of disclosure relative to the importance of the issues and the amount in dispute.

Privilege Claims in Documentary Discovery

Documents for which privilege is claimed are listed in Schedule B but are not produced. The principal grounds for privilege in Ontario civil litigation are:

Solicitor-Client Privilege

Solicitor-client privilege protects confidential communications between a lawyer and client for the purpose of giving or receiving legal advice. The Supreme Court of Canada has affirmed that solicitor-client privilege is a substantive right, not merely a procedural rule, and should be construed broadly: Lavallee, Rackel and Heintz v Canada (AG) 2002 SCC 61. The privilege belongs to the client and can only be waived by the client.

The crime-fraud exception removes solicitor-client privilege where the communication was made to facilitate a crime or fraud. The test requires prima facie evidence that the client was engaged in criminal or fraudulent conduct and that the communication furthered it.

Litigation Privilege

Litigation privilege (or "work product" privilege) protects documents prepared by or for a party primarily for the dominant purpose of anticipated or existing litigation. Unlike solicitor-client privilege, litigation privilege is not limited to communications with counsel — it covers documents prepared by the party, investigators, consultants, and experts in preparation for litigation. Litigation privilege expires at the end of the litigation to which it relates: Blank v Canada (Minister of Justice) 2006 SCC 39.

The dominant purpose test is applied objectively. A document created for multiple purposes — only one of which is litigation — may not attract privilege if litigation was not the dominant purpose at the time of creation.

Settlement Privilege

Communications made in the course of genuine settlement negotiations are protected from production under settlement privilege. The purpose of settlement privilege is to encourage frank exchange in settlement discussions. Communications must be genuinely aimed at settlement; mere posturing may not qualify.

Rule 49 offer-to-settle documents are covered by separate provisions. The fact of an offer and its terms are generally not disclosed to the trial judge until after judgment for the purpose of the costs determination.

Examination for Discovery: Rule 31

Rule 31 governs oral examinations for discovery. Each party may examine any adverse party: Rule 31.03(1). For corporations and other non-individual parties, the examining party is entitled to examine an officer or director or, with leave, any employee of the party having personal knowledge of the matters in question: Rule 31.03(2)-(3).

Scope of Proper Questions

A person being examined for discovery may be asked about any matter that is relevant to any matter in issue in the action: Rule 31.06(1). The scope of examination is broad — the same wide Peruvian Guano relevance standard applies.

Specifically, a party may be asked about:

• The names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue: Rule 31.06(2)
• The names and addresses of expert witnesses that the other party intends to call: Rule 31.06(3)
• The contents of a document that the other party relies on and that is in the other party's possession, control, or power: Rule 31.06(4)

Questions about the legal advice the party has received, however, are not proper — they are protected by solicitor-client privilege. A question that calls for disclosure of privileged communications should be met with a proper objection and refusal to answer.

Objections, Refusals, and the Refusals Chart

Where a question is objected to and the witness refuses to answer, the examining party may either accept the refusal or bring a motion to compel under Rule 34.14. Standard grounds for refusal include privilege, relevance, oppressiveness, and confidentiality.

Ontario practice requires counsel to maintain a refusals chart — a written record of each question refused, the grounds for refusal, and whether the question was answered on reconsideration. The refusals chart is typically prepared jointly by counsel after the examination. Courts expect counsel to attempt to resolve refusal disputes before bringing motions.

On a motion to compel, the court will determine whether the question falls within the proper scope of examination and whether the objection is valid. The costs of a refusal motion are often awarded against the unsuccessful party.

Undertakings: Obligation, Scope, and Follow-Through

An undertaking is a commitment given during examination to provide information or documents that the witness does not have immediately available. Counsel for the party being examined gives undertakings on behalf of the party — not merely on behalf of the witness.

Undertakings are binding. A party who fails to fulfill undertakings may be subject to a motion to compel, costs sanctions, or — in egregious cases — striking of pleadings. Courts take unfulfilled undertakings seriously, particularly where the failure appears deliberate or has prejudiced the examining party's trial preparation.

Best practice is to maintain a separate undertakings chart during the examination, listing each undertaking given with the question number and a description of what must be provided. After the examination, counsel should send a confirming letter to opposing counsel setting out all undertakings given, to prevent later disputes about scope.

The responding party must fulfill undertakings within a reasonable time, typically 30 days, unless a specific deadline is agreed. If a party is unable to fulfill an undertaking because the information or documents do not exist, it must advise the examining party promptly and explain why the undertaking cannot be fulfilled.

Use of Discovery Evidence at Trial: Rule 31.11

Discovery evidence may be used at trial to impeach the credibility of a party or witness, or as evidence of the facts admitted: Rule 31.11(1). A party may read in portions of the examination of an adverse party as evidence in chief at trial — this is the "read-in" procedure commonly used to introduce admissions made at discovery.

Rule 31.11(2) prevents a party from reading in parts of the examination of their own party as evidence (self-serving statements). Rule 31.11(5) allows opposing counsel to read in additional portions of the examination to give context to the portions read in by the party.

Discovery evidence read in at trial is subject to the same rules of admissibility as in-court testimony. A party who gave inconsistent answers at discovery and at trial will face credibility challenges based on the prior inconsistent statement: Rule 20.05 of the Evidence Act RSO 1990 c E.23.

The trial judge will permit read-ins from discovery that are relevant and not unduly cumulative. Strategic selection of discovery admissions to read in at trial is an important element of trial preparation.

Expert Witness Disclosure: Rule 53.03

Rule 53.03 requires a party who intends to call an expert witness to serve a signed expert report at least 90 days before trial (or 60 days for a responding expert report). The expert report must contain:

• The expert's name, address, and qualifications
• The instructions provided to the expert in relation to the proceeding
• The nature of the opinion being sought and each issue in the proceeding to which the opinion relates
• The expert's opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert's opinion within that range
• The expert's reasons for the opinion, including a description of the factual assumptions and the literature or other material relied upon
• An acknowledgment of expert's duty in Form 53

The Form 53 acknowledgment requires the expert to certify that the duty is to provide opinion evidence that is fair, objective, and non-partisan — and that the duty is owed to the court rather than to the party retaining the expert. Failure to include the acknowledgment is a formal defect that may result in the expert not being permitted to testify.

Discovery Plans and Proportionality

Rule 29.1 requires parties to cases involving more than $200,000 to agree on a discovery plan before conducting discoveries. The discovery plan must be agreed in writing and must address the scope of documentary discovery, the order of examinations, and a schedule for completing discovery.

Rule 29.2 allows a party to move to limit or abridge discoveries where the cost or time of discovery is disproportionate to the amounts at stake or the complexity of the issues. Courts have become increasingly attentive to proportionality, particularly in commercial disputes involving electronic discovery of large document sets.

The Ontario e-Discovery Guidelines and the Sedona Canada Principles provide a framework for proportionate electronic discovery. Counsel dealing with large volume electronically stored information (ESI) should address preservation obligations, search methodology, and production format early in the litigation.

Deemed Undertaking Rule: Rule 30.1

Rule 30.1(3) provides that all parties and their lawyers are deemed to undertake not to use evidence or information obtained through the discovery process for any purposes other than those of the proceeding in which the evidence was obtained. This is the "implied undertaking" or "deemed undertaking" rule.

Using discovery material obtained in one proceeding in another proceeding, or for non-litigation purposes, without court leave is a breach of the deemed undertaking. Courts treat this seriously — using discovery documents to harm the disclosing party's competitive position outside litigation may result in contempt proceedings.

The deemed undertaking survives the conclusion of the litigation. Even after the proceeding has ended, documents and information obtained through discovery cannot be used for other purposes without leave of court.

Motions Arising from Discovery

Several categories of motion arise from discovery disputes:

• Motion to compel production: Where a party fails to properly complete the affidavit of documents or refuses to produce Schedule A documents.
• Motion to compel answers: Where a witness refuses to answer questions at examination without proper grounds.
• Motion to fulfill undertakings: Where a party fails to fulfill undertakings given at examination.
• Motion to strike examination answers: Where a party seeks to exclude improperly admitted evidence from the record of examination.
• Motion for adverse inference: Where a party fails to call a key witness or produce expected documents, potentially warranting an adverse inference at trial.
• Norwich order: A pre-litigation discovery order against a non-party to identify unknown wrongdoers — requires proper grounds and balance of convenience.

Practical Tips for Ontario Civil Litigators

Effective discovery practice in Ontario requires careful attention to deadlines, documentation, and communication with opposing counsel. Key practical considerations include:

• Serve the affidavit of documents within the required timeline — Rule 30.03 requires production within 10 days of close of pleadings in most cases.
• Update the affidavit promptly when new relevant documents come to light — Rule 30.07 requires immediate amendment.
• Prepare a thorough undertakings and refusals chart during the examination and send a confirming letter to opposing counsel within 5 business days.
• Calendar undertaking follow-up dates — discovery management files can generate dozens of outstanding undertakings requiring tracking.
• Serve expert reports 90 days before trial and confirm the expert has signed Form 53.
• Address privilege disputes promptly to avoid surprise exclusions at trial.

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