SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-45304
DATE: 2012/09/17

RE: MICHAEL MANSFIELD et. al. , Plaintiffs

AND:
CITY OF OTTAWA, Defendant

BEFORE: Master MacLeod

COUNSEL:
Edward C. Conway, for the Plaintiff
Martin Dolan, for the Defendant
Jane Bachynski, for the Third Party

HEARD: June 26 th , 2012

REASONS FOR DECISION

[ 1 ] This was a motion for a further and better affidavit of documents and other relief. It is based on the theory that the defendant City of Ottawa has failed in its obligation to make full and complete documentary disclosure and that consequently discoveries cannot proceed.

[ 2 ] As I will discuss momentarily the City is technically in non compliance with its production obligations and I will direct that it take reasonable steps to comply. In practical terms however the likelihood of a further search for relevant documents producing evidence critical to the plaintiff’s case is very small. In my view it would have been far more appropriate to have proceeded with the discovery and to have dealt with the missing documents by way of undertaking. Tackling this issue by way of a full day motion supported by huge amounts of paper and allegations of litigation misconduct was unnecessary, inappropriate and wildly disproportionate. It is precisely the kind of motion that discovery reforms, and in this jurisdiction the availability of case management, were designed to avoid.

Background

[ 3 ] The accident at the heart of this litigation was a most unfortunate one. The plaintiff is self described in the statement of claim as a partially paralyzed person with vision only in his right eye. On July 27 th , 2007 the plaintiff was operating his wheelchair intending to use the underpass at the intersection of Colonel By Avenue and Rideau St. This underpass connects Colonel By with the former train station now housing the Government Conference Centre and also permits access to the National Arts Centre. The underpass was originally constructed in the 1980s when the Rideau Centre was constructed but it was redesigned in 2004 when the former Daley building was redeveloped and as part of a roadway realignment. Part of the redesign included stairs where there had formerly been a broad pedestrian ramp.

[ 4 ] The plaintiff alleges that the stairs were hidden from view from the perspective of a pedestrian and in particular a disabled person in a wheelchair. Apparently he drove his wheelchair over the edge of the stairs and suffered severe injuries. He claims to have suffered further diminishment of his vision and depth perception and an increase in his level of disability. He seeks significant damages.

The scope of relevance

[ 5 ] Ordinarily claims against a municipality arising from a danger on a sidewalk arise by virtue of the statutory liability to keep highways and bridges within its jurisdiction in a reasonable state of repair. This liability of municipalities is now set out in s. 44 (2) of the Municipal Act, 2001 [1] and is subject to the saving provisions in ss. 44 (3) & (8). There are also standards for repair of sidewalks set out in O.Reg. 239/02 . Ordinarily these statutory tests are the focus of what plaintiffs’ counsel like to call “slip and fall” cases and what defendants usually characterize as “trip and fall”. That is most of these cases focus on inspection, maintenance records and records of complaints or similar accidents.

[ 6 ] It is evident from the statement of claim that the plaintiff’s claim against the city is not merely a claim for failure to maintain the sidewalk in good repair. Liability for changing the configuration of the underpass to render it unsafe and also for failing to warn pedestrians of the change and thus creating a concealed danger is inherent in the pleading. Though the city pleads in its defence that the construction of the steps took place more than three years before the accident and that it therefore had no duty to warn the plaintiff of the change, it must measure its production obligations on the basis of the pleading as it is crafted. No issue is before the court as to the adequacy of the pleading or whether the action as pleaded is sustainable in fact or law.

[ 7 ] The plaintiff specifically pleads that the “step construction was a hazard inadequately and negligently constructed and inadequately and negligently presented to the travelling public.” In addition to alleging a duty to “maintain a public space in such a way that [the plaintiff] would be aware of the dangers .. in the structural environment” and a specific duty to warn of the construction of stairs, specific allegations of negligence include the following:

“i. The Defendant had a duty to ensure that its public space did not constitute a hazard to the public and in particular the disabled public toward whom and for whom the original ramp was originally constructed.

ii. The Defendant was negligent in not following a level of professionally acceptable procedures in altering the structure of the ramp.

[ 8 ] The plaintiff also claims damages for “intentional infliction of nervous shock” on the basis that the city “knew or should have known that the actions that the defendant took would inflict nervous shock on the plaintiff”. On the basis of all of these pleadings, the decision to replace a ramp with stairs, the process that was used and considerations of accessibility and safety are clearly put in issue. Foreseeability of course is a central concern.

[ 9 ] The pleading therefore puts aspects of the design and redesign of the underpass in question. It will be pertinent to know what if any consideration was given to the safety of disabled pedestrians, what process was followed in the decision to redesign the original ramp and what standards if any existed or were followed at the time. On the basis of this pleading it will also be relevant to know whether or not there was any consideration of the impact of the underpass design and reconstruction on pedestrians using wheelchairs or pedestrians with limited vision.

[ 10 ] Obviously there are many other aspects of the construction and design that have no relevance. It does not matter, for example, how much concrete was used, whether the contract proceeded on schedule, what inspections were conducted or how much the project cost. There is no basis for production of the entire content of the construction file or of every approval that was required or obtained unless it relates specifically to one of these issues. Similarly of course there will have been myriads of e-mail and other communication in connection with the project and the vast majority of that is likely to be irrelevant to the questions in issue.

[ 11 ] The statement of claim was issued in June of 2009. A statement of defence was delivered in September of that year. In January of 2010 the city issued a third party claim against Novatech Engineering Consultants Ltd. which was responsible for the design of the modified underpass and sidewalk. The contract with Novatech contains an insurance and indemnity clause. It also apparently contains a requirement that the contractors maintain a construction file and make the file available to the city on demand. That will play a role in the narrative momentarily.

[ 12 ] Novatech has defended against the third party claim and has also defended the main action and accordingly is subject to production and discovery at the behest of the plaintiff. Those pleadings were delivered in April of 2010.

Production

[ 13 ] On May 2 nd , 2010 counsel for the plaintiff wrote to both Ms. Bachynski and Mr. Dolan indicating his view that he would require production of:

“all the documents, drawings, analysis, opinions, photos, approvals, notes, emails, and any and all materials related to the work carried out by Novatech, on the contract and on any and all amendments to the contract, referred to by the City in its third party claim; and,

All the documents, drawings, analysis, opinions, photos, approvals, notes, emails and any and all materials related to the work carried out by the City on the southwest corner of Rideau St. and Colonel By;”

[ 14 ] He also asked for the parties to make available “all the materials associated with any other work” at that location carried on by either of the parties between 2002 and 2010. It is self evident that these requests are far broader than the production obligations which the rules impose on either the city or the third party. The obligation is to produce the relevant documents from the construction files and not to produce “all documents”. [2]

[ 15 ] I pause to observe that in fairness there are certain cases in which the contents of files are not confidential and there are no questions of privilege. In those cases, particularly if there is disagreement about the scope of relevance it is not unheard of for a party simply to produce an entire file. Either that or opposing counsel may be given access to the file and be invited to review it. That may be more cost effective than to have the producing party’s counsel reviewing the file and then to engage in disputes with the other side about the scope of relevance. But this is normally done by agreement and not by unilateral demand. Both over production and under production may be problematic as they impose unnecessary costs. The courts have also commented adversely on “data dumps” or trial by avalanche. [3]

[ 16 ] I will also mention in passing that the evidence discloses this problem is not one sided. Counsel for the third party has been complaining that the plaintiff has failed to identify clearly what documents he will be relying on in support of his claim for damages. Apparently the plaintiff delivered what he says is his entire medical record and included it in his affidavit of documents but in a rather testy letter counsel for the plaintiff has refused to do any more than that because he says the rules do not require it. The question of who is correct is not before me since there is no motion relating to the plaintiff’s production but this exchange of correspondence is indicative of a disturbing lack of procedural collaboration.

[ 17 ] I do not intend to engage in a review of all of the demands for production and the letters and e-mails which went back and forth between counsel. There are a few incidents worthy of note.

[ 18 ] Apparently in 2009 after delivering a defence, Mr. Dolan began the exercise of collecting relevant documents from city staff. He asked for the construction file and appears to have received a banker’s box of documents. This box is referred to in the e-mails which were in evidence and Mr. Dolan advised the court during argument that he originally believed this was the city’s construction file. It transpires however that the box did not contain the city’s file. Rather it contained documents sent to the city by Novatech at the request of the city. When Mr. Dolan decided to third party Novatech and realized that the documents he had originated with Novatech he had them returned. These appear to be the documents that now appear in the Novatech affidavit of documents. Many of them are the Novatech copies of e-mails and other documents originating with the city.

[ 19 ] The explanation behind this is said to be that in the city’s construction contracts, there is a requirement that contractors must maintain a construction file and must make it available to the city on request. On demand Novatech dutifully sent over the file and city staff then delivered it to Mr. Dolan. This is not specifically set out in an affidavit but it is confirmed by both Mr. Dolan and Ms. Bachynski and it is consistent with the emails that are in evidence. Mr. Conway was told about the banker’s box of documents and was advised that it was sent back to Novatech by Mr. Dolan.

[ 20 ] It was of course completely appropriate of Mr. Dolan to send the documents back to Novatech when Novatech was made a party to the litigation. That is not the issue. It is however a fact that most of those documents were documents that passed between Novatech and the city or vice versa or to which both were privy at the time. The city has not found or produced its own copies of these documents. Technically, even if it is the same document, the city should be producing its own copies of the documents or, if they are no longer in its possession, control, or power, listing the documents in Schedule C to the affidavit of documents and explaining what happened to them. In addition, the city actually had possession, control and power over the Novatech documents themselves so properly speaking they should have been listed in the city’s Schedule A or Schedule C as the case may be. There can therefore be no doubt that the city has failed to strictly comply with Rule 30.

[ 21 ] Of more concern to the plaintiff of course is the failure to produce other documents which may have existed in the city’s records but were either never sent to Novatech or not preserved by Novatech. Mr. Conway surmises from the failure of the city to find its own copies of the Novatech documents that the city has not carried out a reasonable search and is simply refusing to make proper production.

[ 22 ] The City of Ottawa is a very large government. By any measurement it is one of the largest government organizations in Canada and it produces and stores a vast number of documents. Both parties have produced detailed affidavits setting out the city’s document retention policy in relation to “official business records” and “transitory records” and the further division of “OBR”s into permanent records and other records. The document retention policy is formalized by by-law. Ultimately each document custodian determines if a document should be categorized as an OBR and officially retained or not.

[ 23 ] There was also detailed evidence about the operation of the city’s Outlook e-mail system and how the autodelete function operates. Essentially unless e-mails are specifically preserved in an individual’s own archive “pst” files or are printed and put into a file in paper form they are automatically purged from the servers at regular intervals. There is an affidavit from Bob Antonietti, an analyst in the city’s I.T. department who sets out in detail certain searches conducted by him and the 5 e-mails he located. Four of these had previously been produced and one had not. He states that he has been unable to find any other e-mails through the electronic searches he has conducted. This affidavit incidentally was only served on June 2 nd , 2012 though it was apparently sworn on May 24 th . Not surprisingly, Mr. Conway objected to this affidavit because he did not have an opportunity to cross examine the deponent. I declined to exclude the affidavit. Firstly it responds to certain evidence in the plaintiff’s motion record and secondly it is silent on some important points. I have taken the late service and the silence into account in determining what weight to give the evidence although, as I will come to eventually, there are more serious deficiencies in the plaintiff’s evidence.

[ 24 ] The dispute about the sufficiency of production has been festering for quite some time. I have described the letter sent by counsel for the plaintiff in May of 2010. There were additional demands, letters, e-mails, a “request to admit” which was really a written interrogatory about document searches and threats to bring motions. Mr. Dolan was on leave for part of the intervening period and the file was in the hands of another lawyer in the legal department. The record shows increasing frustration on both sides with lack of documentation. The record shows very little positive action to actually resolve the issues either through agreement or adjudication. There are threats of motions and strident demands but little else. This kind of activity should not be confused with meaningful action. [4]

[ 25 ] The affidavit from Mr. Antonietti contains very little explanation about additional efforts that could be made to recover e-mails from local hard drives or other storage devices and it makes no mention of backup tapes or hard copy files in the city archives or elsewhere. It was, as noted, delivered only on the eve of the motion.

[ 26 ] Prior to the motion before me, this matter was before the Honourable Madam Justice Roccamo in October of 2011. The motion heard by her Honour appears to have been triggered by a status notice under Rule 48 but in any event it resulted in a consent order that there be a “meet and confer” including the relevant I.T. experts. This appears to have been the first serious effort at face to face discovery planning. The meeting took place but it failed to resolve the issues. In fact it resulted in the demand set out in this notice of motion that the city subject the I.T. person who attended that meeting to cross examination. The order also ordered “exchange of discovery plans”. As noted this was a consent order. The order is silent as to what happens once the “plans” are exchanged or what the parties should do if they continue to disagree. Dates for discovery were established by the order. They did not take place because the production dispute continues. In Mr. Conway’s view it would not have been useful to examine the defendant without the missing productions.

[ 27 ] Mr. Conway then requested a long motion. As a consequence, in accordance with the local practice in Ottawa, there was a case conference held in May of 2012. It should be noted that this would have been required whether or not Rule 77 applies to this proceeding but in fact that rule does apply by virtue of the date on which the claim was issued and the transition rule. Despite the fact that the action is technically case managed, however, this is the first time that any of the parties had resort to a case conference. The relief sought on the October motion included a request that a discovery plan be imposed and a timetable established. I observe that these are both things that could have been achieved by means of a case conference or preferably through respectful and collaborative negotiation. [5]

[ 28 ] On the motion before me, the plaintiff asks for a basket of relief including the following:

a. A further extension of time to set the matter down for trial;

b. A further and better affidavit of documents from the city;

c. Cross examination of Bruce Mason on the affidavit of documents separate from the examination for discovery;

d. An order that the city I.T. expert who attended the discovery planning meeting swear an affidavit dealing with the search for electronic documents and submit to cross examination;

e. An order directing the city to direct a former employee to co-operate with plaintiff’s counsel and to use best efforts to ensure he does so;

f. An order setting a deadline for providing these documents and information and for discovery thereafter; and,

g. Costs of the motion.

Analysis

[ 29 ] The simple issue raised by the motion is whether or not the city is delinquent in its production obligations and if so what remedy should be granted. The plaintiff asserts that the answer to this question is clearly yes and that drastic relief is appropriate because the city has “improperly delayed and avoided” its obligations, has “breached a court order”, has provided “no production”, and has “improperly made the plaintiff take two motions to obtain production and examination relief”.

[ 30 ] As I have outlined above, it is apparent that the city is not in technical compliance with the rules. I am not particularly concerned with technical compliance. For example I can see no real purpose in requiring the city to list the same documents as Novatech just because Mr. Dolan had the box of documents in his office for a time and because the city apparently has the power to obtain them from Novatech. They should have done so but the documents are now listed in the Novatech schedule A and it would be a meaningless make work project to require the same list to be attached to the affidavit of the city. The authorities are quite clear that just because the court may make an order does not mean it will automatically do so. Generally speaking the court should be persuaded that it will serve some meaningful purpose to order a party to redo a step in the litigation or take remedial action. [6]

[ 31 ] I have no difficulty in making a general order that the city conduct further searches, disclose the nature of those searches and produce any additional relevant documents that are uncovered. The more difficult question is whether to trust that the city legal department will be able to ensure this activity is given more than cursory attention without very specific direction and a process of ongoing supervision. Is there any justification to order specific and rigorous investigation to locate documents on local hard drives, external storage devices, retired computers or backup tapes? Is it a useful exercise to order the city to investigate what happened to missing files or documents solely for the purpose of swearing an accurate schedule C?

[ 32 ] How rigorous or intrusive additional searches should be and whether to order a further and better affidavit at this stage is the question. I will come back to the sufficiency of the plaintiff’s evidence in a moment. For the moment I want simply to deal with the city’s response. It is certainly possible to conclude that the city has not been sufficiently rigorous in responding to the plaintiff’s production demands either in response to demands by plaintiff’s counsel or in response to the motion.

[ 33 ] In the city’s responding motion record there is evidence about what electronic searches were conducted by the I.T. department for e-mails but no evidence about the possible physical locations of “.pst” files that might still exist and not have been caught by the described protocol. There is no evidence from the relevant document custodians whether or not they themselves created electronic archive files of their e-mails at any time and whether they actually deleted such copies, when and why. There is no evidence that there has been a search for hard copies or scanned or microfiched copies of the city’s paper based construction file in the city archives. There is no evidence from anyone in the appropriate line department to support the suggestion that the city did not keep copies of the construction documents found in the Novatech file. Nor is there any evidence concerning the cost, time or trouble that would be involved in taking any of these steps.

[ 34 ] In addition to the question of whether or not to order the city to undertake remedial production work, is the question of whether the city should be subject to sanction for its failure and to a consequence for the resulting delay. The answers to all of these questions depend of course on how serious has been the breach and how important it is to locate additional documents.

[ 35 ] No matter how thoroughly parties believe they have discharged their production obligations, there can be disputes about the scope of relevance or there may be documents which become relevant because of unexpected answers given by witnesses during discovery. It is a rare discovery that does not uncover at least a few new documents with corresponding undertakings to produce them. The rules specifically provide that cross examination on the affidavit of documents is available at discovery. [7] Indeed there is case law to the effect that this strategy must be pursued if there is no evidence that the supposed missing documents exist. It is not enough to prove that they ought to exist. [8]

[ 36 ] In the case at bar, based on the Novotech copies of e-mails there is evidence to support a finding that the city has not accounted for relevant e-mails and other documents in its affidavit of documents. The point is it is a judgment call in that situation whether to proceed with discovery or to bring a motion but in many instances proceeding with the discovery is the most practical strategy. If the consequence is another round of discovery and leave is needed to exceed the new time limits, the party whose productions were deficient and who failed to remedy the situation despite being requested to do so is likely to find little sympathy from the court. [9]

[ 37 ] Accordingly it is important to try to put this search for missing documents in perspective. The discretion to grant discovery orders depends on a number of factors. In addition to the specific considerations set out in Rule 29.2 the overall directive in Rule 1.04 requires that all rules be applied in a proportionate manner directed to resolving cases justly, inexpensively and expeditiously on their merits. Inherent in the principle of proportionality and explicit in principle no. 6 of the Sedona Canada principles is the concept of utility. This requires the court to consider whether or not the requested documents are likely to be useful. How probative are they likely to be, of what and directed to what issue? The second consideration will be how likely it is that such documents exist, how difficult it may be to search for them and how onerous that task might be.

[ 38 ] The plaintiff in the case at bar does not need further documentary production to prove that the city reconfigured the entrance to the underpass. There is no need to obtain more documents to determine whether the signage, sight lines, slope, design, lack of barriers or railings constituted a danger at the time of the accident. The conditions of the underpass, the design documents, the specifications, plans and photographs are all available if only in the Novatech productions. It is already apparent from the e-mails that have been produced that there was discussion about how to configure the entrance to the underpass and how to situate the stairs. There was quite a bit of communication concerning the replacement of a ramp with stairs. Conversely there has been no evidence produced by the city that anyone specifically turned their mind to safety and accessibility of pedestrians in wheel chairs or to the visually impaired.

[ 39 ] The importance of the missing documents might be to foreclose any argument that this accident was not foreseeable. If there is a “smoking gun” document it would be a document that disclosed that something like this incident was considered as a possible consequence of the ramp modification and the city decided to discount that risk. Naturally such a document – if it existed – would be important and relevant and subject to production. It is hardly critical however. Assuming the steps are hazardous and assuming there was a duty not to allow such a hazard to exist, it may be just as damaging to obtain an admission that no one turned their mind to this possibility.

[ 40 ] I discount almost entirely the pleading of “intentional infliction of mental shock”. The possibility that there are documents in the city showing that someone in 2004 made decisions with the specific intention of inflicting mental shock on a plaintiff who might happen along at some time in the future is so remote as to be unworthy of serious consideration in the absence of specific evidence. If the pleading is read extremely generously so as to reinterpret it as a claim for compensation for psychological damage flowing from the accident or a claim for aggravated damages then the relevant issue is once again foreseeability.

[ 41 ] This leads back to the conclusion that the critical documents would hypothetically be documents in which the impact of the redesign on disabled pedestrians is considered. If those exist they will be both relevant and important.

[ 42 ] Accordingly the city should be directed to make specific inquiries to determine whether or not there is a file at the city archives which would contain the city’s copy of the construction file. The city is to ask each of the key individuals that were involved in the project at the time and were involved in the e-mail chains if they kept copies of potentially relevant e-mails in any other electronic or paper based storage system and what happened to them. The city is also to determine whether or not there are backup tapes or other media that date from 2004 and might contain copies of relevant e-mails or other documents. The city is to determine precisely what happened to the city’s copy of the construction file containing its version of the documents now held by Novatech.

[ 43 ] These answers are to be provided in affidavit form within 30 days. To the extent that any of these sources can be located, are readily accessible and have not already been searched then the city is to review those sources of data and to produce any relevant documents. The search should be focused on documents dealing specifically with the ramifications of replacing part of the ramp with stairs and such other search criteria as the parties may agree upon. Data that is not readily accessible such as backup tapes need not be retrieved at this point but is to be preserved. If and when there are further documents unearthed then in due course the city is to prepare an amended or a supplementary affidavit of documents.

[ 44 ] I am not prepared at this point to grant any of the other relief that is requested. There will be a case conference scheduled by the registrar for the purpose of re-establishing a litigation timetable. Prior to that case conference, the parties are required to confer and to seek agreement on a timetable.

Sanctions

[ 45 ] I do not consider it appropriate to order sanctions against the city notwithstanding its failure to approach the task of production of documents with more rigour. In fact notwithstanding the fact that an order has been made I am not prepared to award costs to the plaintiff. Neither are the other parties entitled to costs in my view.

[ 46 ] There are several reasons for this as follows. First and foremost there is no discovery plan. Rule 29.1.05 specifically provides the court to deny costs in the absence of a plan. It is not necessary that I find any particular party at fault for the lack of a plan. Discovery planning is the joint responsibility of all parties and their counsel. There is evidence that Ms. Bachynski told counsel for the plaintiff that no plan was necessary when he attempted to address this issue. That is not an appropriate response but neither was the excessively broad production demand sent by the plaintiff. I do not have sufficient evidence to apportion fault even were it desirable to do so. No one seems to have approached the exercise seriously and it is self evident that a properly focused discovery plan would have addressed many of the issues that were argued on this motion.

[ 47 ] What counsel are required to do to engage in effective discovery planning is to be less concerned with rules and more concerned with best practices. Best practices require the parties to clearly turn their collective minds to the evidentiary needs of the case and to be transparent and forthcoming about the information architecture of their clients. The goal should be to hone in on relevant and probative documents as efficiently as possible and to attempt to head off protracted and expensive discovery and production disputes.

[ 48 ] In a case managed environment intractable disputes may be amenable to early court intervention by means of a case conference to avoid the need for motions. Alternatively an early motion for directions may be appropriate. All of this is preferable to two years of contentious correspondence and lengthy and expensive motions requiring parties to repeat steps that ought to have already been completed at this stage in the litigation. If counsel had all taken this exercise seriously at an early stage this motion would have been entirely unnecessary. Besides the rules, standards of civility and professionalism and the Sedona Canada principles, the parties might usefully consider the Sedona Cooperation Proclamation which was included in the plaintiff’s materials. [10]

[ 49 ] The second reason for depriving the plaintiff of costs is the ineffective and ultimately disproportionate approach taken by the plaintiff. Mr. Conway’s approach towards his colleagues has been unreasonably combative. Throughout the documents there is a clear picture of plaintiff counsel making broad sweeping demands and exaggerated allegations of improper behaviour and wrongdoing. At the same time he has taken an unreasonably rigid position regarding the plaintiff’s obligations. For example he refused to concede that Rule 31.06 (3) required that he disclose any expert opinions he had at the time of discovery. He refused to engage in any meaningful discussion about what evidence the plaintiff would lead in support of his damages seeming to pour scorn on opposing counsel for asking for “damage documentation” and indicating that it was the entirety of the medical brief. On the motion counsel filed Canadian and American authorities dealing with sanctions for failure to produce including spoliation. This is not Zubulake [11] nor is it even Wilson v. Servier [12] , two of the decisions cited by the plaintiff . In those cases there was cogent evidence that one of the parties was being purposefully non co-operative, was concealing information or had destroyed relevant information.

[ 50 ] If Mr. Conway thought the city was taking an erroneous position, dragging its feet on its production obligations or stonewalling, he had numerous tools at his disposal including quietly and firmly bringing the matter before the court at a much earlier stage. Counsel are entitled to disagree with each other. That is why we have masters and judges but it is improper to personalize such disputes and elevate failure to comply with a rule or a deadline into allegations of impropriety, misconduct or contempt of court in the absence of clean hands on the one hand and clear evidence on the other. This is the antithesis of the civility expected of counsel in their relations with other members of the bar and indeed with all litigants and the court. [13]

[ 51 ] The final reason for denying the plaintiff costs is the volume of material filed on the motion and the length of time spent in argument. This was excessive on the one hand and inadequate on the other. It was excessive because it included at least two feet of paper including various documents never referred to in argument and all of the productions of the third party. This was unnecessary and in fact it is one of the factors in the delay of these reasons as I continually had to return to the documents to see whether they bore out the assertions made in argument. All that it was necessary to show in order to obtain relief in this matter was to demonstrate that there were documents the city had not disclosed or searches it had not conducted and which it ought to have. The most compelling evidence that there are or were undisclosed relevant documents was the evidence of specific e-mails discussing the configuration of the stairs and the impact of closing the long established ramp. This gives rise to a strong inference that other similar documents existed.

[ 52 ] The material was inadequate because the affidavits filed in aid of the motion did not meet the most basic requirements of Rule 39. It would have been open to me to dismiss the plaintiff’s motion on this basis alone though I did not do so because the motion was argued on the basis that the exhibits to the affidavits accurately reproduced e-mails and correspondence. As a specific example of what I am referring to, the original motion record contained a one paragraph affidavit of the co-plaintiff attaching numerous documents labelled as exhibits but not identified as such or lettered in the body of the affidavit and simply swearing that she believes the documents attached are true. The supplementary record contains a longer affidavit but it is little more than a listing of the attached documents and again the affidavit itself does not identify the exhibit, give it a letter, state what it is and what fact or inference it supports or how it came to the attention of the plaintiff. At least one of the affidavits was signed but not commissioned. Quite apart from these technical deficiencies the affidavit evidence did not establish that the plaintiff was prevented from proving its case, that it would be inefficient and expensive to go to discovery without the documents or that the plaintiffs had in fact fully complied with their own obligations.

SUMARY AND CONCLUSION

[ 53 ] In summary, the City is ordered to review its records in the manner indicated above and to disclose the results of those inquiries to the plaintiff. This is to be set out in an affidavit in lieu of listing all of the Novatech documents or other missing documents in Schedule C. If in the course of those inquiries more relevant documents are discovered they are to be produced and if appropriate the affidavit of documents is to be updated or a supplementary affidavit and Schedule produced.

[ 54 ] The parties are to meet and confer face to face, by telephone or in cyberspace as may be appropriate with a view to establishing a new litigation schedule including completion of discoveries and mediation. There will be a case conference on a date to be set by the registrar.

[ 55 ] As this action is now in default under Rule 48.14 and it is evident more time is required, there will be an order setting aside the status notice and extending the deadline to set the action down for trial to December 31, 2013. Counsel are expected to collaborate to ensure this deadline can be met. A further extension may be granted only for good reason.

[ 56 ] Counsel for the plaintiff filed the third party’s productions as part of the motion material. They consist of two volumes marked as “Exhibit 4 referred to the affidavit of Gisele Mansfield”. Mr. Conway asked that these be returned to him after the motion. The Registrar is to make these documents available to the plaintiff for pickup and they need not be retained as part of the motion record.

[ 57 ] There will be no costs of this motion.

Master MacLeod
Date: September 17, 2012

[1] S.O. 2001, c. 45

[2] Rule 30.03 as amended effective January 1, 2010 requires production of all documents “relevant to any matter in issue in the action”.

[3] See for example Friends of Lansdowne v. City of Ottawa 2011 ONSC 1015 (S.C.J. – Master) or Mirra v. Toronto-Dominion Bank [2002] O.J. No. 1483 (S.C.J. – Master)

[4] See Sycor Technology v. Kaier 2009 27816 (ON SC) , [2009] O.J. No. 229 (S.C.J. – Commercial List per Morawetz J.) or Blais v. Toronto Area Transit Operating Authority (2011) 2011 ONSC 1880 () , 105 O.R. (3d) 575 (S.C.J.) per Quinn J. commenting on “trial by letter”.

[5] See Rule 77.01 (2) (1), Rule 29.1.03 (3) and the Sedona Canada Principles, particularly no. 4

[6] See for example Ramdath v. George Brown College of Applied Arts & Technology 2012 ONSC 2747 (S.C.J.) and my own decision in Senechal v. Muskoka 2005 11575 (ON SC) , [2005] O.J. No. 1406 (S.C.J. – Master)

[7] Rule 31.06 (1) (c). More accurately the rule provides that no question may be objected to on the basis that it constitutes cross examination on the affidavit of documents.

[8] Bow Helicopters v. Textron (1981) 23 C.P.C. 12 (H.C.J. – Master) and see Ipex Inc. v. AT Plastics Inc. (2011) 2011 ONSC 4734 () , 337 D.L.R. (4 th ) 63 (S.C.J.) which holds that it is an error to order broad production of a class of documents just because it may contain some documents that are relevant.

[9] Ipex, supra @ para. 71

[10] See my decision in Kariouk v. Pombo 2012 ONSC 939 (S.C.J. – Master)

[11] Zubulaeke v. Warburg 2003 U.S. dist. LEXIS 7939 (Tab 3 in the brief of authorities – only one of the many Zubulake opinions issued by Scheindlin USDJ)

[12] 2002 3615 (S.C.J.)

[13] Principles of Professionalism for Advocates, Advocates Society, 2009 & Principles of Civility for Advocates, Advocates Society, 2001