As claims commenced by way of action are becoming more prevalent in the estates bar, it is important to understand the different rules, and obligations, imposed on counsel depending on whether a claim is commenced by statement of claim (action) or notice of application (application).  One such difference is the use of discovery plans.  The recent decision of Teti v. Mueller Water Products addresses the obligations surrounding discovery plans used in actions.

According to Rule 29.1.03 of the Rules of Civil Procedure, where a party to an action intends to obtain evidence by the discovery of documents, examination for discovery, inspection of property, medical examinations, or examinations for discovery by written questions, the “…parties to the action shall agree to a discovery plan”.

In Teti, the parties were unable to agree on a discovery plan relatively early in the litigation.  As such, a motion was brought by the plaintiff for a discovery plan.  Master Dash dismissed the plaintiff’s motion to impose a discovery plan on the basis that the Rules impose an obligation on the parties to reach an agreement.

Although Master Dash acknowledged that case law supports the Court’s intervention in exceptional circumstances to the discovery process, and the Rules of Civil Procedure provide for broad powers to make orders and impose terms, Master Dash required the parties to make further efforts to create their own discovery plan, including the requirement to mediate before he would consider imposing a court ordered discovery plan.

Such a decision seems to accord with Justice Brown’s 3Cs: cooperation, communication, and common sense.  Parties must work together in good faith, before recourse to the Court.

Noah Weisberg