"Proportionality has always been a guiding principle in Canadian Courts on a number of different issues including remedies, costs and Charter claims. Since January 2010, the Ontario Rules of Civil Procedure (the "Rules") have required a proportionality analysis to be conducted with respect to the overall civil proceeding and more specifically, in the discovery process. A proportionality analysis involves the balancing of many factors so as to meet the defined objectives while limiting the burdens, costs or delays that are not strictly necessary to meet those objectives. The rules regarding proportionality aim to minimize the time, costs and delay to obtain truly relevant evidence and thereby increase access to justice.
The Rules now require counsel to carefully consider and plan the file strategy and discovery objectives at a very early stage. Counsel will need important preliminary information from their clients to enable meaningful and cooperative discussions with opposing counsel to prepare a discovery plan. Counsel will need to be able to justify the scope of their requests of opponents and, where necessary, gather the appropriate evidence to argue a motion on the proportionate scope of discovery."