Under the Rules of Civil Procedure 29.1, all parties to an action must agree to a discovery plan if they intend to obtain evidence through documents, oral examination, inspection of property, medical examination or examination for discovery by written questions. This plan must be submitted within 60 days of the close of pleadings and before either party attempts to obtain evidence.
The purpose of a discovery plan is to map out the scope of the discovery for both parties. This plan must include the date of service for affidavits, names of persons needed for oral examination and information regarding timing, length, manner and costs of the examination. Both parties must agree to the discovery plan unless one is imposed by the judge.
The creation of the discovery plan is meant to be a collaborative process and should help move litigation forward. However, when the parties are unable to agree to a discovery plan, the court has legal tools to punish litigants. Under rule 29.1 a judge may refuse to grant relief on a discovery motion or impose costs on the litigants. The courts may also impose a discovery plan on the parties. This power was upheld by the Ontario Superior Court in Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2010 ONSC 4559. In that case, the parties were unable to adhere to a discovery plan and the trial judge cited rule 1.04(2) which states that courts shall make orders and give directions that are proportionate to the importance and complexity of the issues and amount involved in the proceeding.