The New Discovery: How Ontario Lawyers Can Make the Most of Their Time

The Rules governing our civil justice system in Ontario are likely to undergo a drastic change soon. There have been many tweaks to the Rules of Civil Procedure in the past 40 years, but no dramatic sea change of the sort that appears to be on the horizon. 

The Civil Rules Review Working Group (“CRR”) was tasked with conducting a comprehensive review of the Rules aimed at increasing efficiency and eliminating delay.   Most striking amongst the CRR’s recommendations is to institute an up-front evidence model and curtail examinations for discoveries.  

Precisely what new Rules will be adopted is unknown at this point.   But there is a very good chance that we will be moving to some variety of up-front evidence model with the right to oral discovery being limited.  

What would this mean for advocates looking to get the best for their clients?   It means we will have to strive to do more with less time when it comes to oral discoveries.   Preparation and focus will be key.   Focused examinations for discovery have always been a hallmark of good advocacy.  But with tighter time limits on oral examination, the need to focus will be even greater.    

Key Takeaways

• Ontario’s Civil Rules Review Working Group has proposed significant changes to the Rules of Civil Procedure aimed at reducing delay and improving efficiency in civil litigation.
• The proposed model would place greater emphasis on upfront evidence disclosure, including sworn witness statements and expert reports before oral examinations.
• Oral examinations for discovery would remain available in larger Trial Track cases but would be limited to focused examinations of approximately 90 minutes.
• Admissions obtained during oral discovery may become even more important if lawyers have less time to question witnesses.
• The proposed changes could create challenges for documentary disclosure because parties may only be required to produce documents they intend to rely on, rather than all relevant documents.
• Careful preparation, targeted questioning, expert involvement, and a focus on obtaining key admissions may become increasingly important under any new discovery framework.

THE CRR’S RECOMMENDATIONS

Consistent with their mandate, the CRR focused on what could be done to help alleviate delay in the civil justice system.    Examinations for discovery were identified as a major source of delay.   The scheduling of examinations for discovery and the scheduling of post-discovery motions can significantly delay cases.   The CRR was so concerned about this that its initial proposal in April 2025 recommended that oral discovery be eliminated entirely.[1]

This proposal was not popular with the civil litigation bar.   In their final policy proposal[2] the CRR indicated that “the least supported proposals were those most central to the new model: namely, the introduction of an up-front evidence framework and the elimination of oral discoveries.” 

It is not surprising that the civil litigation bar strenuously objected to the elimination of oral discoveries.   They have a long history in Ontario.  They are a powerful litigation tool.   Oral discovery allows litigants to fully understand the evidence in a case.   Done right, oral discovery allows litigants to obtain helpful admissions that drive settlement and trial results.   Moreover, it allows lawyers to preview how the parties will perform as witnesses – something crucial to risk assessment.   Eliminating oral discovery would make cases less amenable to settlement because risk assessment would become much more difficult. 

In the end, the CRR maintained its proposal for an up-front-evidence model but recommended allowing some oral discovery.  

What will this model look like if the recommendations of the CRR are implemented?  

First (setting aside Small Claims Court cases) there will be two tracks of civil cases – the Summary Track and the Trial Track.   Cases worth less than $500,000 will presumptively proceed by way of the Summary Track.   There is no right to oral examination for Summary Track cases.   For Trial Track cases (those worth $500,000 or more) there will a right to oral discovery.  

In Summary Track cases, after documentary disclosure parties would be required to provide sworn witness statements from all witnesses and their expert reports.   There would be no right to oral examination for discovery.   The case would ultimately proceed to a summary hearing on a paper record, with the Judge having discretion, in rare cases, to allow oral evidence from one or more witness.   This would be a sea change from our current system designed to dispose of smaller cases efficiently, but, at the expense of a full and fair hearing and, arguably, at the expense of some level of due process and fairness. 

The CRR decided to maintain oral discovery in larger, Trial Track cases.   But it recommended that oral discoveries be limited to 90 minutes.   The CRR proposal calls these Focused Examinations.  

THE PURPOSE OF ORAL EXAMINATION UNDER THE CURRENT SYSTEM

Let’s look at how examinations for discovery are currently being used.  Under the current system, oral discoveries are used for the following purposes:

• Obtaining full background information about the case, from the very basic to the specific (eg.  a complete discovery of all facts).
• Determining what, if any, relevant documents the other side has that have not been produced in affidavits of documents. 
• Obtaining witness information by way of getting counsel to summarize existing statements and asking for undertakings for evidence from people employed by a defendant.  
• Obtaining admissions.
• Testing credibility and assessing the opposing party as a witness.

When it comes to trial, discovery transcripts are used for two basic purposes.   First, portions of the discovery transcript can be read into evidence as part of a party’s case under Rule 31.11.   Discovery transcripts are also used to impeach a witness where their trial evidence on a material point is inconsistent with their discovery evidence.

ADMISSIONS ARE THE MOST IMPORTANT THING ON A DISCOVERY

Of all the things we currently do on oral discovery, what is most important in terms of getting results either by way of settlement or at trial?   Significant admissions.   Getting clear evidence from the other side that harms their position on an important issue is the most important objective of a discovery.   If an admission is clear on the transcript your opponent is stuck with it.   Discovery transcripts can be hundreds of pages long.   When we review these documents preparing for mediation or trial, we tend to focus on a handful of important admissions.   While it is important to understand the background facts, the crucial evidence on a discovery is usually found in 10 pages of a 150-page transcript.  

When preparing for an examination for discovery good advocates consider the issues and ask themselves the following question?   What admissions do I want to get from this witness. Making a list of the important issues and the admissions one wants on those issues is crucial to good discovery preparation.

THE UP-FRONT EVIDENCE MODEL PROVIDES OPPORTUNITY FOR ADMISSIONS

If the recommendations of the CRR are implemented, more evidence will be available before oral examinations.  

While the CRR’s recommendation is potentially problematic in terms of documentary disclosure (discussed below) it would require litigants to provide materials that would allow a much higher level of case analysis before oral discovery.   The proposal would require that sworn witness statements from each party witness be provided before oral examinations.  

What does this mean for discovery preparation?   It means that we will have a lot of evidence before we do oral examinations.   It will eliminate the need to ask hundreds of questions to obtain background information.   This will help counsel understand the evidence and plan to get admissions.   There will be less of a need to “think on our feet” and get a witness to an admission based on evidence we have just heard and haven’t had an opportunity to digest and more of an opportunity to plan an examination to get key admissions.  

The CRR’s proposal also requires corporate parties and partnerships to produce sworn witness statements of all employees who will give evidence on the party’s behalf.   This is a major advantage from the current system in terms of getting admissions. Under the current Rules we seldom get any information about what key defence witnesses will say before discovery.   We typically get to examine a single corporate defendant.   We ask that person questions about the evidence of other defendant employees.   We typically get undertakings answers carefully crafted by counsel.   We get no opportunity to ask the witness follow up questions. In a system where a corporate defendant is required to provide multiple witness statements in advance of oral discoveries, we have an opportunity to digest this information and, most importantly, to ask the representative of defendant questions about this evidence to get admissions.

THE UP-FRONT EVIDENCE MODEL PROVIDES OPPORTUNITY FOR CROSS-EXAMINATION

Rule 31.06 of the Rules of Civil Procedure permits cross-examination on examination for discovery, unless the question is directly solely to the credibility of the witness.   Under the current Rules some cross-examination is on discovery is good advocacy.  It can result in admissions.  It also gives counsel a preview of the witness’s demeanour under cross-examination, which is important for risk assessment and can drive settlement.

Preparing for cross-examination is always easier if we have prior statements from a witness.   When we are preparing for trial, we carefully examine every statement a witness has made and look for inconsistencies.   This is often a focus of the cross-examination.   If the CRR’s proposal is implemented, we would have a sworn statement from the witness before oral examination.   In many cases there will be inconsistency between this statement and other evidence (eg. police statements, HTA transcripts, medical records).   This will be fodder for cross-examination on the oral discovery.   Of course, counsel will need to make a strategic call about whether to save the cross-examination for trial.   But an effective cross-examination on an important point at discovery will motivate the other side to settle.   And if the witness offers different evidence on the discovery, there will be yet another prior statement to build into your trial cross-examination.

THE CRR’S PROPOSAL IS PROBLEMATIC IN TERMS OF DOCUMENTARY DISCOVERY

If the CRR’s proposal is implemented the scope of documentary discovery will be limited.   This is a concern.  And counsel will need to take steps to minimize the potential problem before oral discoveries.  

Our current Rule 30 requires that each party disclose “every document relevant to any matter in issue in an action that is or has been in [their] possession, control or power.”   This requires the production of both documents a party intends to rely upon and relevant documents that may harm their case.  

Things would change drastically in terms of documentary disclosure if the CRR’s proposal is implemented.  Rather than producing all relevant documents in their possession, control and power, parties would only be required to produce Reliance Documents. Reliance Documents are those documents upon which the party intends to rely to prove its case. This would be a major departure from our current system which requires all relevant documents (helpful or harmful) to be produced. In its prior proposal, the CRR had proposed that in addition to Reliance Documents, parties would be required to produce Known Adverse Documents.   It defined Known Adverse Documents as documents known to a party that contain information adverse to their case or that support the case of another party. These would appear to be crucial relevant documents.   But the final proposal does not require them to be produced as part of the initial documentary disclosure.  

How would a plaintiff get a document in a defendant’s possession that harms the defendant’s case under this proposal?   The proposal would allow litigants to request production of additional documents after the Reliance Documents are produced. This would obviously be a step backwards in terms of requiring parties to exchange key relevant documents because a plaintiff may have no way of knowing what documents the other side has and, therefore, won’t be able to make a make a request specific enough to obtain key adverse documents at this stage.

Some of the 90 minutes of oral discovery would then need to be used to ensure that the key adverse documents are discovered and produced.   This would be unfortunate because of the importance of using this precious time to get admissions.   So, counsel is going to have to do everything they can to consider what adverse documents the other side has and make additional documents requests before oral examination.   This would include consulting experts in appropriate cases to learn what documents a defendant is likely to have that it hasn’t produced.

TIPS TO GET THE MOST OUT OF YOUR TIME

So, while the CRR’s proposal would present some opportunities for oral discovery, it would also presents some challenges.   

We don’t know what specific changes will be made.  So, let me leave you with five tips to get the most of a time-limited discovery, regardless of the potential Rule changes.

First, do everything you can to get relevant documents before discoveries.   Even under the current Rules, which require the production of all relevant documents, affidavits of documents are often incomplete.   Many lawyers just accept what they get, head to discovery and spend a lot of time asking about missing records and getting undertakings for them.   This deprives counsel of the opportunity to review them before discovery and ask questions about them before trial.  

Second, use your experts to assist in preparation.   We have experts in a lot of our cases.   Whether it is an accident reconstruction expert in a motor vehicle crash, a traffic engineer in a municipal roads case or a doctor in a medical malpractice case, experts can be of great assistance in preparing for discovery.   Where expert evidence will make a difference in the outcome, it is a mistake to do the discovery without their assistance, provide them with a transcript and ask for a report.   Experts can help us focus on the key questions that will drive their conclusions.   Get them the documentary disclosure early and consult with them about missing documents and to help focus your discovery.  

Third, don’t waste time on areas that don’t make a difference.  Analyze the case as well as you can before discovery.   Know what the key issues are and where your opponent’s weaknesses lie.   Don’t be slave to a precedent that lists every conceivable question for every case.   I’ve seen lawyers spend several minutes asking about the history of tires on a vehicle where the tires would have made no difference in the crash. This sort of thing is a waste of precious time.     

Fourth, pick a couple of areas for cross-examination. Discovery is different from cross-examination at trial.   Building a rapport with the witness on a discovery is important.   We catch more flies with honey. That is a tried-and-true method on discovery.   It is a mistake to start and continue a discovery like a cross-examination.   But engaging in a few strategic areas of cross-examination is good discovery advocacy.   It can be necessary to get some admissions.  It also allows us to assess the witness under cross-examination, which can be helpful for risk assessment.

Fifth, and most importantly, make a list of the issues and the admissions you would like to get on the issues in every case.   We sit and watch defence counsel examine our clients.   It is often painfully boring.   Hours are spent on arguably relevant but far from crucial information.   The lawyer often works from a list of questions they use in every case.   This is simply not effective. Instead of asking every imaginable question about everything that is arguably relevant, focus on the key issues and what evidence you would like to get on these issues.   Be focused on getting not just the evidence on the key issues but admissions that help your case.   Because they are what drive settlement and trial results. 

Frequently Asked Questions

What changes are being proposed to Ontario’s Rules of Civil Procedure?

The blog explains that the Civil Rules Review Working Group has recommended major reforms intended to improve efficiency and reduce delay in Ontario’s civil justice system. One of the most significant proposals is the introduction of an upfront evidence model that would require parties to exchange more evidence earlier in the litigation process. The recommendations also include limiting oral examinations for discovery and creating separate litigation tracks depending on the value of the case. While the final form of any new rules remains uncertain, the proposals would represent one of the most significant changes to Ontario civil procedure in decades.

What is the proposed upfront evidence model?

According to the blog, the upfront evidence model would require parties to provide sworn witness statements and expert reports before oral examinations take place. This approach is intended to ensure that more information is available earlier in the litigation process. Instead of using discovery primarily to uncover basic facts, lawyers would have access to witness evidence in advance and could focus more directly on key issues. The proposal would significantly change how lawyers prepare cases and conduct examinations, particularly in complex civil litigation matters.

Would oral examinations for discovery be eliminated entirely?

No. The blog notes that the Civil Rules Review Working Group initially proposed eliminating oral discoveries altogether, but this recommendation received significant opposition from the civil litigation bar. In its final proposal, the Working Group retained oral discovery for larger Trial Track cases. However, the proposed examinations would be significantly shorter than those commonly conducted today. The recommendation would allow focused oral examinations while limiting their duration, with the goal of reducing delays associated with scheduling discoveries and related motions.

What are Focused Examinations under the proposed rules?

Focused Examinations are the proposed replacement for longer traditional examinations for discovery in Trial Track cases. The blog explains that these examinations would generally be limited to 90 minutes. Because of the shorter timeframe, lawyers would need to be highly selective about the issues they explore. The emphasis would shift toward obtaining key admissions and addressing the most important issues rather than conducting lengthy examinations covering every aspect of a case. Effective preparation would become even more important under this proposed framework.

Why are admissions so important during examinations for discovery?

The blog identifies admissions as the most valuable evidence often obtained during discovery. An admission that undermines an opposing party’s position on an important issue can significantly affect settlement discussions and trial outcomes. While discovery transcripts may contain hundreds of pages of evidence, lawyers often focus on a relatively small number of critical admissions when preparing for mediation or trial. Under a time limited discovery model, identifying the admissions that matter most and preparing strategically to obtain them may become even more important than it is today.

How could the proposed rules affect documentary disclosure?

The blog raises concerns about the proposed approach to documentary disclosure. Under the current rules, parties generally must produce all relevant documents in their possession, including documents that may be harmful to their case. Under the proposed model, parties would initially be required to produce only documents they intend to rely upon. This could make it more difficult to identify adverse documents held by the opposing side. For lawyers handling complex litigation in Toronto and throughout Ontario, this change could create additional challenges when investigating claims and preparing for discovery.

How can sworn witness statements improve discovery preparation?

According to the blog, receiving sworn witness statements before oral examinations would provide lawyers with significantly more information before questioning begins. This could reduce the need to spend valuable discovery time obtaining background facts and allow counsel to focus on key issues, inconsistencies, and admissions. The proposal may also provide opportunities to compare witness statements with other available evidence and identify areas for cross examination. In cases involving corporate defendants, advance witness statements from multiple employees could provide a more complete understanding of the evidence before discovery occurs.

What role do experts play in effective discovery preparation?

The blog emphasizes that experts can play an important role in helping lawyers prepare for discovery. Accident reconstruction specialists, traffic engineers, medical experts, and other professionals can help identify important issues, missing records, and key questions that may affect the outcome of a case. In litigation arising from serious incidents in communities such as Vaughan or elsewhere in Ontario, consulting experts before discovery may help lawyers focus their examinations and make better use of limited time. Expert input can also assist in identifying documents that may not yet have been produced.

What practical steps can lawyers take to maximize limited discovery time?

The blog offers several recommendations. These include obtaining as many relevant documents as possible before discovery, consulting experts early, avoiding unnecessary questioning on issues that are unlikely to affect the outcome, conducting targeted cross examination where appropriate, and focusing on obtaining important admissions. Rather than relying on generic question lists, lawyers are encouraged to identify the key issues in the case and prepare specific objectives for the examination. This approach may become increasingly important if discovery time is reduced under future rule changes.

How might these proposed changes affect civil litigation in Ontario?

The blog suggests that the proposed reforms could fundamentally change how civil cases are prepared, discovered, and resolved. While earlier evidence disclosure may create new opportunities for strategic preparation and focused questioning, concerns remain about reduced documentary disclosure and limited oral discovery. Lawyers handling civil litigation matters in Barrie and across Ontario may need to adapt their approach by placing greater emphasis on upfront preparation, expert involvement, and targeted examinations. The full impact will depend on which recommendations are ultimately adopted and how they are implemented.

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[1]Civil Rules Review – Phase 2 Consultation Report, April 2025 [2]2025-12-15 Final Policy Proposal (cleaned-up)