COURT FILE NO.: CV-10-396489

MOTION HEARD: 20110816
REASONS RELEASED: 20120104

SUPERIOR COURT OF JUSTICE – ONTARIO

RE:

Julie Guest, Terrylynn Guest and Kenneth James Asseltine Plaintiffs v. Robert Hirst Defendant

BEFORE: MASTER D.E. SHORT

COUNSEL:
M. H. Arnold
for the Plaintiffs (moving party) Fax: 416 363.8451

G. Marsden
for the Defendant Fax:416 593.5437

HEARD: August 16, 2011

Reasons for Decision

For the times they are a-changin' .

Bob Dylan, 1964

I. Motion Overview

[ 1 ] The plaintiff had four wisdom teeth extracted by the defendant dental surgeon.

[ 2 ] Unfortunately, following the surgery significant infection led to the plaintiff being hospitalized with complications to the extent that, it is alleged, that she almost died as a consequence.

[ 3 ] The plaintiff brings this action asserting that the defendant was negligent in the manner in which he performed the surgery.

[ 4 ] In an affidavit filed on this motion, sworn by the counsel with carriage for the defendant, he notes that:

Among other things, the Plaintiffs have alleged that the Defendant utilized a dental instrument which was inappropriate for the procedure, causing a "highly virulent, aggressive and fast-moving" infection.

[ 5 ] The action has progressed relatively quickly such that examinations for discovery have already been held. Issues arising from events surrounding the discovery of the dentist give rise to this motion brought by the plaintiff for an order requiring the making available for inspection of the dental instrument, the existence of which was disclosed to the plaintiff for the first time during the oral discovery of the defendant.

[ 6 ] Now the plaintiff moves for a further and better affidavit and the defendant takes the position that none is required.

[ 7 ] The plaintiff wishes to conduct a further, “focused” discovery with respect to a range of questions arising from the particular instrument produced. Counsel for the defendant strenuously resists this application and asserts that the plaintiff the plaintiff chose to waive its further discovery rights and ought not to be permitted any further oral discovery.

[ 8 ] Both sides prepare and deliver about two inches of paper and now argue a motion booked for longer than the “booked” ninety minutes.

[ 9 ] How do these approaches accord with the goals of proportionality and civility? What do the Rules require?

II. Issues on Motion

[ 10 ] The case raises a number of issues, based upon arguments which are now brought into a slightly different focus as a result of the application of the 2010 amendments to the Rules .

[ 11 ] My analysis requires a consideration of the Rules provisions dealing with amendment to pleadings, the provisions dealing with the content requirements of a statement of defence, the impact of the new discovery plan rules and their relevance in practice.

[ 12 ] Further, I have considered the nature of the rights of counsel at the completion of an examination for discovery “day” (where less than seven hours of examination time have been consumed) to conduct further discovery. Particularly in this case, where neither counsel, clarified at the end of the day’s examination whether, “other than matters arising from answers undertakings", any further questions are to be permitted. While counsel for the defendant notes that “[n]o specific reservation of rights was sought at the time of the examination.” Does that preclude the plaintiff seeking the relief sought on this motion?

[ 13 ] As well, parties argued the applicability to physical objects of the provisions of the Rules dealing with affidavits of documents. Put simply, is what would colloquially be referred to as a “dentist's drill”, required to be listed in any of the schedules to an affidavit of documents, in a case where the pleadings put the issue of the use of a particular instrument “in play”?

[ 14 ] Assuming not, what is the impact of the requirements in the Rules regarding the components of a Discovery Plan with respect to inspection or production of objects? If one party feels a particular piece of equipment is essential to its case, ought there not be either a motion brought for production of the object or, more preferably an appropriate inclusion in the Discovery Plan negotiated between the parties?

III. “Show Me The Plan”

[ 15 ] Although neither counsel strenuously raised the potential impact of the failure of the parties to agree upon a Discovery Plan as contemplated by Rule 29.1 on the motion, I believe that it is incumbent upon the court to ensure that in circumstances such as this case, the parties make use of the rights and remedies included in that Rule.

[ 16 ] Is it the appropriate course of action to bring a motion for a further and better affidavit when the parties had not otherwise reached an agreement on a Discovery Plan?

[ 17 ] If the parties couldn’t agree on that point, then they could have brought a motion seeking to have the court impose one. I believe that my decision in TELUS Communications Company v. Sharp , 2010 ONSC 2878 still stands as authority for the parties seeking the court’s assistance to create a discovery plan for them, in the event they are unable to agree upon one.

[ 18 ] Had that happened here, at an earlier stage, the parties would have avoided a series of issues relating to, amongst other things, what items were to be produced prior to discovery and on what basis.

[ 19 ] Although the legal press has reported that a segment of the bar appears to be treating thie discovery plan requirement with disdain, until the rules committee directs otherwise, it seems to me that the Rule has to be given some teeth. Conversely, I also have a duty to assist the parties in moving their case forward.

[ 20 ] Subrule 29.01.5 gives a court broad discretion in the event of a failure to agree upon a Plan. In the circumstances of this case, it seemed to me that both sides contributed to the problems that gave rise to the motion. Those problems could have been avoided had counsel focused on agreeing upon a reasonable Discovery Plan, much earlier in the process.

[ 21 ] In Oakdale Kitchens v. Williams & Partners , 2011 ONSC 3375 I continued my discussion of new Rule 29.1 which introduced the concept of mandated Discovery Plans as of January of 2010. In part, the Rule provides as follows:

29.1.03 (1) Where a party to an action intends to obtain evidence under any of the following Rules, the parties to the action shall agree to a discovery plan in accordance with this rule:

1. Rule 30 (Discovery of Documents).

2. Rule 31 (Examination for Discovery).

3. Rule 32 (Inspection of of Property)....

Timing

(2) The discovery plan 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 the evidence.

[ 22 ] The rule also addresses the types of matters to be addresses in the Plan:

(3) The discovery plan shall be in writing, and shall include,

(a) the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action;...

(c) information respecting the timing, costs and manner of the production of documents by the parties and any other persons; ...; and

(e) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the actions. [my emphasis throughout these reasons]

[ 23 ] Potentially of relevance on this motion, the rule further addresses the consequences of a failure to agree to a Plan:

29.1.05 On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule .

[ 24 ] As well, the impact on prior jurisprudence of new Rule 29.2, dealing with the new requirement of “proportionality in discovery”, needs to be addressed.

[ 25 ] In addition to dealing with documents, the rule also deals with the tests to be applied in considering whether a party must answer a question put to them on discovery. Rule 29.2.03 provides, in part, that in making a determination as to whether party must answer a question or produce a document the court shall consider whether requiring the party to answer the question or produce the document would cause him undue prejudice.

[ 26 ] In his affidavit counsel for the defendant discusses the failure of either side to raise any concern with respect to the subject tool in the draft Discovery Plan:

“7. The parties exchanged correspondence in respect of a Discovery Plan. At no time during that process was there any documentary request directed specific to the instrument in question . I did not turn my mind to the existence of the dental instrument when preparing my draft of the Plan. The Plaintiff's mark-up of the draft Plan similarly makes no reference to the instrument....”

[ 27 ] As I have indicated it seems to me that the instrument does not fall into my understanding of the “ document ” discovery process.

IV. The Litigation Dance

[ 28 ] Both parties have very experienced counsel. One firm commonly acts for the errors and omissions insurer for dentists in Ontario. The firm representing the Plaintiff, commonly acts as plaintiffs' counsel in actions against dentists in Ontario. Accordingly, they “have had numerous files together over the years, including several ‘infection’ cases.” This relationship may have led to a belief that the case was being addressed from both sides in accordance with past practice.

[ 29 ] The plaintiff’s Statement of Claim makes very specific allegations as to the cause of the Plaintiff’s injuries:

“18. Julie alleges during the extraction procedure, Hirst forced air and bacteria into the lower tooth sockets by using a high pressure air driven rotor type dental tool. The high pressure tool caused bacteria to be forced deep into the extraction site and into the surrounding tissues . The resulting infection was highly virulent, aggressive and fast moving.

19. It is further alleged that Hirst was negligent in the provision of dental care and failed to meet the standard of care required of a dental surgeon in the circumstances. The usage of an air driven type hand piece was improper and its use was contraindicated. The use of the air driven rotor type hand piece tool employed by Hirst is considered below the standard of care required of a dental surgeon.”

[ 30 ] In contrast, in the Statement of Defence, the sole admission made, concedes that the defendant is a dental surgeon and otherwise appears to address the above allegations in a paragraph wherein, “the Defendant denies every other allegation contained in the Statement of Claim.”

[ 31 ] There is no pleading directly responsive to the particulars in the claim as quoted above.

[ 32 ] The nearest the pleading appears to come to addressing the plaintiff’s allegations is in the following paragraphs:

17. The Defendant denies that the Plaintiff has sustained any damages, injuries or losses.

18. In the alternative, the Defendant states that the Plaintiff’s damages, injuries or losses were caused by events preceding, succeeding or which were, in any event, unrelated to any assessment, recommendation, treatment or prescription with which the Defendant had involvement, or are otherwise due to naturally occurring maladies, illnesses, conditions, afflictions or diseases.

19. In the alternative, if the Plaintiff's damages, injuries or losses resulted from any actions or omissions related to the Defendant's treatment of the Plaintiff or his recommendations to, or prescriptions for, the Plaintiff, the Defendant states that his assessment, recommendations, treatment and prescriptions were nonetheless rendered in accordance with the prevailing standard of care.

[ 33 ] In his affidavit in opposition to this motion the defendant’s counsel observed:

“6. No complaint about the content of the Statement of Defence was received from Ms . Weinman at the time of service or subsequently. No indication of confusion about its wording, nor Demand for Particulars was ever made.”

[ 34 ] My concern is whether the onus to raise these issues was on the plaintiff, or was perhaps more properly, the responsibility of the defendant.

V. Rules re Pleadings

[ 35 ] Rule 25 addresses the requirements of proper pleadings. In particular I have considered to these provisions:

Material Facts

25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence , but not the evidence by which those facts are to be proved.

Inconsistent Pleading

(4) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.

[ 36 ] In particular the provisions dealing with admissions need to be addressed in evaluating the facts before me.

25.07 (1) In a defence, a party shall admit every allegation of fact in the opposite party's pleading that the party does not dispute.

Denials

(2) Subject to subrule (6), all allegations of fact that are not denied in a party's defence shall be deemed to be admitted unless the party pleads having no knowledge in respect of the fact.

Different Version of Facts

(3) Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead the party's own version of the facts in the defence. Affirmative Defences

(4) In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party's pleading.

[ 37 ] The parties agreed on discovery dates and the plaintiff served a Notice of Examination which counsel opposite observes “makes no specific reference to a dental instrument.” The Plaintiff's Notice of Examination reads in the pre-printed portion of the form in accordance with Form 34A, as follows:

YOU ARE REQUIRED TO BRING WITH YOU and produce at the examination the documents mentioned in subrule 30.04 (4) of the Rules of Civil Procedure and the following documents and things:

[ 38 ] The inserted words that follow on the form are consistent with the boilerplate generally used by the profession:

All books, documents (including all documents as defined by subrule 30.01 (1) of the Rules of Civil Procedure), contracts, letters, telegrams, statements, records, bills, notes, vouchers, receipts, memoranda, minutes of meetings, certificates, notes, reports and any copies of same in your possession or under your control, in any way relating to the matters which are within the scope of this proceeding or having any reference thereto.

[ 39 ] Significantly, perhaps, the above list includes virtually every conceivable form of paper document but makes absolutely no reference to production of any thing, as distinct from a document.

[ 40 ] It seems to me that the existing defence pleading could better address the actual issues in this specific case. Certainly the defendant’s version of the factual matrix could assist in facilitating a more meaningful oral discovery.

VI. If It Wasn’t For The Last Minute...

[ 41 ] For even the most organized litigation lawyer, the demands made on the time of litigation counsel, make an ongoing triage of the demands of each file, a necessary part of each day.

[ 42 ] It is therefore understandable that the preparation for the discoveries in this case was taking place in the days immediately prior to the scheduled examination.

[ 43 ] The discovery of the plaintiff was scheduled for the Monday June 21 st . Defendant’s counsel describes his activity at the end of the previous week as follows :

“12. The Plaintiffs' allegations in the Statement of Claim really crystallized in my mind at the time I reviewed the Plaintiff’s productions, which was on the afternoon of Friday, June 18, 2010 - three days before examinations. Contained within that set of documents was a detailed specialist’s report [dated October 26, 2009] prepared by Dr. Gerald Baker, an oral and maxillofacial surgeon. Among other things, Dr. Baker comes to the conclusion that the wrong type of drill must have been used in the Plaintiff's wisdom teeth extraction surgery. Dr. Baker arrived at this conclusion deductively - he determined that this Plaintiff likely suffered a condition known as air emphysema, and he indicated that air emphysema is a condition typically caused by the use of an instrument that exhausts directly into an extraction site...

13. It was after reviewing this report that I turned my mind to locating (I did not have it) the instrument the Defendant believes he utilized for the Plaintiff's extractions and any product information he had.”

[ 44 ] In his affidavit, Dr. Hirst's counsel describes the events leading up to the relevant portion of that examination:

“ Dr. Hirst's examination occurred on the next day. He brought the instrument and the information booklet with him . It was my intention to ensure these were drawn to the attention of Plaintiffs' counsel to enable her to ask questions about them if she chose . It might have been preferable to have done so at the outset of that examination, but for reasons I do not recall 13 months later, this was not done. I certainly recall there being nothing sinister about this .” [my emphasis]

VII. Expect the Unexpected

[ 45 ] In the course of the examination counsel for the plaintiff asked the witness to comment on the report of the plaintiff’s expert, Dr. Baker. The questions asked, led to this answer from the witness:

“A. Well, this particular handpiece -- no, I don't know if Dr. Baker's familiar with the handpiece that I was using. This particular handpiece was designed to exhaust air out the rear of the handpiece, so as to not force air onto the burb (phon) . The saline solution that rinses the burb (phon) has no chip air, there is no air transfer through this particular handpiece.

I agree that an air-driven handpiece, a regular handpiece that's used for fillings, could cause this.”

[ 46 ] The next question resulted in this exchange:

MS . WEINMAN : Do you h a ve t hi s -- s o r ry t o inter r upt . Do you have thi s s pecific handpiece t h at was used that particular day?

THE DEPONENT: Yes, I do.

MS. WEINMAN: ~have you .preserved it?

THE DEPONENT: It’s right here.

MS. WEINMAN: That is it?

THE DEPONENT: yes.

MS. WEINMAN: We may want to take that handpiece and have, it inspected .... Will you make that handpiece available for our expert to inspect?

MR. FARRELL: We've been down this road before. I will certainly enable access. The terms of it, we'll have to discuss, but we certainly intend to access it

MS. WEINMAN: Sorry, what was your response?

MR. FARRELL: Yes, you can have access.

The terms of whether I let it out of my possession are not - - we can discuss as we've done in prior cases.”

VIII. Differing Recollections

[ 47 ] I make no comment as to the manner in which the instrument was produced during the examination. What is clear from the evidence before me is that the instrument and the pamphlet describing the particular model’s characteristics were produced, without prior notice, about 80 pages into the examination.

[ 48 ] Counsel of the defendant describes his view of what followed:

“17. In any event, the transcript confirms that both the instrument and pamphlet were indeed provided during the examination. The Plaintiffs' two lawyers were not foreclosed any opportunity to ask questions about either the booklet or the instrument. In fact, questions were asked about both. Neither of the Plaintiffs' two lawyers, Jonah Arnold or Ms. Weinman, reacted in an overtly negative way to any of this. I would have assumed they would have the exact same questions to pose about the instrument, whether it was produced or not.

18. As can be seen from the transcript, no objection was raised as to the timing of the production of the instrument at the time of the examination. No specific reservation of rights was sought at the time of the examination. No follow-up correspondence was received. In fact, no complaint whatsoever was raised about the timing of the production of the instrument until 13 months later....”

[ 49 ] His affidavit evidence describes how, about a year later, the parties “debated the matter further by correspondence.” He describes the position he continued to maintain:

“(a) in relation to the follow-up questions arising from the answers to undertakings, I felt the proper procedure would be to pose them in writing, and I did not believe these particular answers warranted a re-attendance;

(b) in respect of the handpiece at issue, the instrument was produced at the examination and marked as an Exhibit thereto. The Plaintiffs' lawyers had every opportunity to object, ask questions or purport to reserve rights at the time, and that it is simply too late and inappropriate to do so 13 months later.”

[ 50 ] As well he relies upon the fact that the specifics of the draft Discovery Plan made no provision for re-attendances to answer follow-up questions arising from answers provided,, as a result of undertakings given.

[ 51 ] In respect to that point, it is not my interpretation of the Rules or caselaw that it is necessary to reserve such matters in advance.

[ 52 ] In Blais v. Toronto Area Transit Operating Authority, 2011 ONSC 1880 ; 105 O.R. (3d) 575; J.W. Quinn J. examines the question of when re-attendance may be required on discovery . In that decision he refers back to my colleague Master Sandler’s decision, almost 35 years ago, in S.E. Lyons and Son Ltd. v. Nawoc Holdings Ltd. et al., (1978), 1978 1429 (ON SC) , 20 O.R. (2d) 234 .

[ 53 ] Justice Quinn analyzes this area as follows:

3. Follow-up questions and a further examination for discovery

(a) what is the mechanism for follow-up questions?

59 Absent an agreement by counsel to the contrary, the mechanism, by which a party may put follow-up questions to a witness who has provided information in fulfilment of undertakings, is a motion, under subrule 31.03(1), for leave to conduct a further examination for discovery. The rationale for a further discovery is that the first one has not been completed.

60 Subrule 31.03(1) states that, only with leave, may a party be examined for discovery more than once:

31.03(1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8). 77

(b) when is an examination for discovery completed?

61 In Senechal v. Muskoka (Municipality) , 2005 11575 (ON SC) , [2005] O.J. No. 1406 (Sup. Ct.), the court, after adopting the view espoused in S.E. Lyons and Son Ltd. v. Nawoc Holdings Ltd . supra, that undertakings are an acknowledgement that a question is proper, said, in part, at para. 5: (emphasis added)

Generally speaking, had ... the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer that genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question has been answered .

62 Therefore, the examination of a party is not completed until all proper follow-up questions have been asked and answered.

[ 54 ] Counsel for the defendant submits that a re-attendance is not justified and ought not to be permitted in this case:

“22. The Defendant's answers to undertakings had been provided February 18 (answers) and 22 (documents), 2011.... Upon receipt of them, Ms. Weinman did not communicate to me that any individual answer was lacking in completeness, was confusing or was in any way inadequate”

[ 55 ] I return to Justice Quinn’s review in Blais , which continues:

( c) when is a follow-up discovery appropriate ?

63 The court in Senechal v. Muskoka (Municipality) , supra, summarized, at para. 7, the appropriate approach in ordering a follow-up discovery, including a non-exhaustive list of examples of when such an order might be appropriate: (emphasis added)

• As a general principle a party giving undertakings or answering refusals may be required to re-attend to complete the discovery by giving the answers under oath and answering appropriate follow up questions . A party being examined may not compel the examining party to accept answers in writing simply by refusing to answer questions or by giving undertakings.

• On the other hand, the court will not automatically make an order for follow up discovery if it serves no useful purpose . Examples in which an order may not be appropriate would be cases in which a full and complete written response has been given to a simple question, in which the answer demonstrates that the question was not relevant or in which the parties have agreed that written answers will suffice.

• The court will generally make such an order if it appears necessary in order to fulfill the purposes of discovery. Examples of situations in which an order would be appropriate are situations in which the answers appear cursory or incomplete, where they give rise to apparently relevant follow up questions that have not been asked, if newly produced documents require explanation , or the discovery transcript supplemented by the answers will not be understandable or useable at trial.

• Even if answers do appear to require follow up, the court has discretion to order answers in writing or to decline to order further examination where it appears the cost or the onerous nature of what is proposed outweighs the possible benefit or where for any other reason it appears unjust to make such an order. Such discretion should be exercised only if the interests of justice require it.

[ 56 ] In S.E. Lyons and Son Ltd. Master Sandler made the following comment on the nature of undertakings:

• In my view, an 'undertaking' to provide factual information, given either by the witness or by counsel, is nothing more or less than an acknowledgement that the question is a 'proper' one ... but the witness is unable to answer it when asked.

[ 57 ] When a confirmation under oath of particular information is not provided at the first examination, a re-attendance to obtain such a form of confirmation is not improper. Such an attendance is not in my view a “second” or “more than once” examination of the type contemplated by Rule31.03 (1):

31.03 (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8).

[ 58 ] As well rule 31.08 addresses answers provided by counsel:

31.08 Questions on an oral examination for discovery shall be answered by the person being examined but, where there is no objection, the question may be answered by his or her lawyer and the answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the examination, the person repudiates, contradicts or qualifies the answer.

[ 59 ] While the matter has been reconsidered more recently, it continues to be my view that an examination may continue at a later date to allow counsel to obtain sworn evidence for the purpose of trial. If raised as an issue, written unsworn answers may potentially prove inadequate at trial.

IX. Access to Instrument

[ 60 ] With respect to the instrument, the defendant’s counsel indicated, on the transcript and in the answer to an undertaking, which access to the instrument would be permitted, subject to agreeable terms. He notes however, that he was “not been told of the profession of the proposed inspector, the nature of the inspection, whether the instrument is to be operated, whether it will be opened-up or taken apart, or how long this will take.”

[ 61 ] I have little doubt that these counsel will be able to work out a reasonable proposal by which the preservation of the evidence can be ensured and chain of evidence can be maintained.

[ 62 ] With respect to the inspection of the instrument, I am content with the defendant’s proposal set out above. If the parties encounter difficulties in this regard, I will be available for a telephone case conference to provide further directions.

X. Pleading Issue

[ 63 ] Here the defendant has elected to not address the specifics of his defence in the present pleading. At present we are left with a pleading that is unresponsive to the particulars of the plaintiff’s claim. The original Affidavit of Documents omitted the key brochure describing the instrument now alleged to have been used.

[ 64 ] In Khanna v. Royal College of Dental Surgeons of Ontario, 2000 5167 (ON CA) , [2000] O.J. No. 946; 47 O.R. (3d) 95; Justices Morden and Finlayson dealt with a pleading that was alleged to be deficient. In that case they directed that the matter should proceed to trial observing in part:

“However, while the pleadings are poorly drawn, it is apparent that yet another amendment is unlikely to clarify the issues. The plaintiff should be left to stew in his pleadings such as they are.

....It will be up to the trial judge to assess the merits of the various claims in the light of the evidence.”

[ 65 ] The plaintiff elected not to move against the original defence perhaps hoping the defendant would be left to stew.

[ 66 ] In my view, regardless of the state of the pleadings it is not appropriate whether intentionally or not for the device defence to be brought out of the bag and brought forth for the first time in the midst of the defendant’s examination.

[ 67 ] It is disingenuous to expect counsel to be prepared to discuss and obtain evidence regarding a specific instrument when its use for the procedure in question had not been communicated previously. Particularly where an expert’s report addressing the issue had been produced by plaintiff’s counsel months earlier.

XI. Disposition

[ 68 ] I believe the parties and the system would be better served if the pleadings were finalized prior to the continuation of the plaintiff’s discovery of Dr. Hirst.

[ 69 ] The Defendant shall have leave, but no obligation, to amend his pleading, if so advised, within 20 days.

[ 70 ] The defendant shall attend for further discovery of up to two hours, at a mutually convenient date within 90 days of the release of these reasons (or a later date, if counsel agree). The examination shall be limited to questions concerning the instrument and its acquisition, use and preservation.

[ 71 ] If the defence is amended, usual entitlement to discovery in that regard will continue.

[ 72 ] Both parties could have potentially avoided these issues by focusing on an appropriate discovery plan at an earlier stage. Nevertheless the plaintiff was required to bring and argue this motion and was successful. As the need and uses for discovery plans become better clarified, the profession may encounter costs consequences to failing to agree upon a plan.

[ 73 ] In the circumstances in this case, I am awarding costs on a partial indemnity basis payable by the defendant within 60 days.

[ 74 ] If the parties cannot agree on an appropriate amount my usual cost resolution protocol will apply.

Released: January 4, 2012

DS/ E48 Master D. E. Short

Supplementary Direction re Costs Submissions

If the issue of costs cannot be resolved by agreement between the parties, I am directing the parties to comply with the following timetable for the delivery of written costs submissions:

1. from the party seeking costs, a costs outline, maximum five pages in length inclusive of schedules and appendices, shall be delivered by not later than twenty-one days from the release date of the reasons on this motion.

2. responding costs submissions, maximum five pages in length inclusive of schedules and appendices, shall be delivered within 15 days of receipt of the above costs outline; and

3. a reply, if needed, maximum three pages in length inclusive of schedules and appendices, shall be delivered within 7 days of receipt of the responding submissions.

The party seeking costs shall deliver all written costs submissions in one complete package within 10 days following the delivery of the responding costs submissions, and in any event by no later than 60 days from the date of the release of the reasons, directly to my Assistant Trial Co-ordinator, David Backes in the Masters Support Office, 393 University Avenue, 6 th Floor, Toronto, Ontario.

In the event that I do not receive costs submission in accordance with the above timetable, there shall be no costs of the motion to either party.