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Clarke v. Hassan, 2011 ONSC 467 (S.C.J.) (Rule 29.1 – discovery plan, Rule 53.03 – expert witnesses)

Judgment Released: January 20, 2011   Link to Judgment

The third party brought a motion for several heads of relief, including concerning a discovery plan and an expert’s report.  

The discovery plan, agreed to by the plaintiff, specified that the plaintiff would be produced for discovery by the third party on a given date and would provide a sworn Affidavit of Documents on that date, but that “documents will be provided no later than five days prior to examinations for discovery”.  At the discovery, the plaintiff’s Affidavit of Documents listed over 300 documents which had not been produced before the discovery. The Court called this an “unacceptable lapse in good judgment”, potentially requiring further attendances for discovery and increasing the costs of the discovery process for the third party. 

The plaintiff “insist[ed] on only producing or advising of experts 90 days before the pre-trial Conference in accordance with Rule 53.03(2)”. The Court stated that a party should not “sit on an expert’s report”, and that the practice in civil litigation is for a party to provide a copy of an expert opinion very soon after it is obtained. Strict reliance on the minimum time limits in the Rules of Civil Procedure will not permit the smooth administration of justice, as “[t]he failure to produce expert reports on a timely basis produces requests for adjournments that, in the interests of justice, must often be granted”.

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Clarke v. Hassan, 2011 ONSC 467 (S.C.J.) (Rule 29.1 – discovery plan, Rule 53.03 – expert witnesses)

Ravenda v. 1372708 Ontario Inc., 2010 ONSC 4559 (S.C.J.) (Rule 29.1 – Discovery Plan)

Judgment Released: August 25, 2010 Link to Judgment

Both parties brought motions for various requests for relief including amendments to pleadings, production of documents, examinations for discovery, and the imposition of a Discovery Plan. The parties had exchanged draft Discovery Plans prior to the motion, but could not reach an agreement.   Ravenda took the position that the Court did not have jurisdiction to order a Discovery Plan pursuant to Rule 29.1 which, the Court admitted, did not specifically give any authority to a Court to impose a Discovery Plan.  The Court found however, that “…despite this obvious oversight in Rule 29.1, this court clearly has the jurisdiction to make orders regarding all of the matters that could possibly be included in a Discovery Plan. That jurisdiction is contained in other parts of the Rules of Civil Procedure, including but not limited to Rule 30, 31, 32, 33 and 35.  Therefore, at the very least, the authority to make an order on any matter that might be included in a Discovery Plan is derived from these other rules.”  The Court went on, citing TELUS Communications Company v. Sharp, 2010 ONSC 2878, where Master Short found that the Court had the authority to impose a Discovery Plan upon an unwilling party by reason of Rule 1.04.  The Court accepted the logic in TELUS and noted that “The most efficient manner to deal with a situation in which the parties cannot agree on a Discovery Plan is for the court to impose upon the parties a comprehensive Discovery Plan that contains a complete set of all procedural orders that apply to the action.”   The form of Discovery Plan imposed by the Court is attached as Schedule A to the Reasons.

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Ravenda v. 1372708 Ontario Inc., 2010 ONSC 4559 (S.C.J.) (Rule 29.1 – Discovery Plan)

Wahid v. Malinovski, 2010 ONSC 3249 (S.C.J.) (Rule 29.1 – discovery plan)

Judgment Released: July 7, 2010   Link to Judgment

The Court dismissed an appeal of a Master’s order to produce documents.  New Rule 29.1.05 gives the Court the discretion to refuse to grant discovery-related relief if the parties fail to produce or update a discovery plan.  However, the new Rules do not “hamstring” the Court’s discretion under Rule 30.04(5) to order the production of documents for discovery.  Here, Rule 29.1.05 was not engaged because although the Master made no mention of a discovery plan in her endorsement, the parties had signed one shortly before the motion. Further, even if there was no discovery plan such that the defendant’s motion was technically premature, it was still within the court’s discretion to order early production.

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Wahid v. Malinovski, 2010 ONSC 3249 (S.C.J.) (Rule 29.1 – discovery plan)

Sharma v. Timminco Limited, 2010 ONSC 790 (SCJ) (Rule 29.1 – discovery plan; Rule 30.03 – affidavit of documents)

Judgment Released: February 3, 2010   Link to Judgment

The Court noted that Rule 30.03(1) no longer specifies the timing for the delivery of an Affidavit of Documents (the deadline was formerly 10 days after the close of pleadings). Instead, Rule 29.1 requires the parties to prepare a discovery plan which, under Rule 29.1.3, shall be agreed to before the earlier of (a) 60 days after the close of pleadings or such longer period as the parties may agree to and (b) attempting to obtain evidence.

In this proposed class action, the Court ordered production of insurance policies even though the pleadings were not yet closed and examinations for discovery were some distance away, which made the production request “technically…premature”.

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Sharma v. Timminco Limited, 2010 ONSC 790 (SCJ) (Rule 29.1 – discovery plan; Rule 30.03 – affidavit of documents)