COURT FILE NO.: 11-51068
MOTION HEARD: 2012/02/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PAUL DUBELKLET KARIOUK, plaintiff (defendant by counterclaim)
AND:
ALVARO POMBO et. al., defendants (plaintiffs by counterclaim)
BEFORE: Master MacLeod
COUNSEL: David Cutler, for the plaintiff (moving party)
Ronald S. Petersen, for the defendants (responding parties)
HEARD: February 7, 2012
REASONS FOR DECISION
[1] This is a motion to compel answers to undertakings. After the motion was launched, the majority of the undertakings were answered and at the time of the hearing it was simply necessary to set a deadline for the remaining answers, to rule on the sufficiency of certain others and to deal with costs. For reasons that are set out below, it is the latter question that has engaged the attention of the court and compels me to issue written reasons.
[2] It is conceded there was no formal discovery plan and no agreed upon deadline for answering undertakings. The primary issue of contention therefore is whether or not this motion was necessary. The defendants take the view that it was wasteful, unnecessary and unduly adversarial. The plaintiff argues that he has followed the rules both in letter and spirit and has proceeded in a completely reasonable, civil and professional manner. The answers he argues were “late and deficient, confusing or evasive and incomplete”.
[3] The interplay between the Rules of Civil Procedure, Rules of Professional Conduct, Principles of Civility and Professionalism and the relatively new requirement for formal discovery planning is important. The attempt to use principles of civility to counter reliance on the rules of civil procedure requires comment. Rule 29.1.05 demands that the court consider whether the lack of a discovery plan should have an impact on the relief granted or on the disposition of costs.
[4] These reasons deal firstly with the few outstanding undertakings, provide directions for the completion of discovery, establish a timetable and then deal with costs. To decide the latter issue, in light of the arguments advanced at the hearing, it has been necessary to review the procedural history of the litigation, to examine the requirements of discovery planning, and to consider the requirements of civility and the rules in the context of what is or should be a relatively simple piece of litigation.
Nature of the Litigation
[5] This is a home renovation case. The plaintiff was hired to design and plan the renovation of a historic home which the defendants had purchased in Ottawa. He lives and works in Ottawa providing design services though he is a licensed architect in the State of New York.
[6] Apparently the renovation took much longer than anticipated and according to the defendants it cost three times what they had been led to believe. Accordingly when the plaintiff sued the defendants for a $40,000.00 outstanding fee he was met with a counterclaim for $750,000.00. The counterclaim seeks indemnification for the cost overruns and reimbursement of certain carrying costs and accommodation expenses generated by delay in completion of the project.
[7] The assymetrical nature of the litigation creates certain challenges. The plaintiff’s best outcome is judgment for $40,000.00 plus interest and costs in what was originally an action under Rule 76. He is now the defendant in a counterclaim for almost a million dollars. He and his counsel urgently need to know how much substance there is to this and to identify as efficiently as possible the key evidence they will have to meet if the matter proceeds to trial.
The undertakings
[8] Thirty three undertakings were given by the defendants at the time of their discoveries. In addition there was a small number of questions that had been taken under advisement which have now been converted to undertakings. None of these undertakings had been answered when the motion material was served. There were five question requiring information from a non party and requests for that information have now been made. Only seven questions were the subject of argument.
[9] For purposes of the motion, the undertakings were numbered in a chart found in the moving party’s record. The actual question number from the transcript is identified in the chart by question number and “P” for Mr. Pombo and “M” for Ms. Martinez. In these reasons I identify the undertaking by the chart number rather than the question number.
[10] As an aid to his argument, Mr. Cutler prepared a document showing the paragraph from the pleading to which the question referred, the specific questions and answers extracted from the transcript and the answer to the undertaking as provided. This was a very helpful document though I agree with Mr. Petersen that it would have been more helpful had it been given to him in advance or included in a factum. But the pleadings, the transcript and the answers were in evidence and all of the information in the document was properly before the court. Moreover the answers to undertakings were only provided on January 26th, 2012 so it would have been difficult for Mr. Cutler to know prior to that date which questions to focus on.
Nos. 22, 23, 27, 28 & 31
[11] The evidence discloses that the requests for information from the City of Ottawa were only sent on January 26th, 2012. Accordingly the answers to Numbers 22, 23, 27, 28 & 31 which are questions that require documents from the city are outstanding. There is no good reason why that information was not requested until days prior to the motion but there is also no reason to think that the information will not now be readily available. The defendants are content that they be held to a deadline for obtaining this information and providing it to the plaintiff. Thirty days should be adequate time to follow up with the city and to obtain the documents such as copies of permits.
Nos. 14 & 15
[12] Numbers 14 & 15 are part of a series of questions going to the foundation of the counterclaim. The defendants assert that the agreement with the plaintiff was to proceed with a renovation option that was to have cost approximately a third of what the project ultimately cost. In the pleading the defendants state that they reviewed seven concept drawings and “were persuaded to accept the concept with a price of approximately $325,000.00”. The questions were intended to have the defendants identify the documentary basis for this claim.
[13] It is clear from the answers in the transcript that the defendant’s evidence is not that any one of the original concept drawings was the concept eventually agreed upon. In the transcript he describes the process that was followed and he undertook to identify the document that he says contained the “325 option”. What he has produced in answer to the undertaking is not a drawing but an e-mail attached to which is a construction cost estimate totalling $339,504.00 before overhead and GST.
[14] The question has been answered in the sense that the document has been identified. Of course that begs additional questions such as why an estimate for $339,504.00 plus 15% overhead plus 6% GST plus possible additional extras would be called the $325,000 option. It is not clear from that e-mail what the evidence of the defendant will be establishing that the “325 option” was in fact the basis of the contract. I hold that the undertaking has been answered but the plaintiff will be entitled to ask follow up questions. As I will discuss below, while the question has technically been answered, it would be a better practice to provide a full and complete explanation.
[15] The limited information provided in this answer compels the court to grant leave to the plaintiff to have the defendants reattend for a further round of discovery. Perhaps with such leave granted, counsel can agree on another less expensive way to provide the necessary information. The point to be made however is that an answer to an undertaking which just answers the question as asked is not a very helpful response. This is particularly so in the context of the revised discovery regime which contains a mandate for counsel to collaborate to ensure discovery is efficient, time limited and proportionate to the issues in dispute. Had this answer been given at the time of the discovery it is self evident that it would have led to a string of follow up questions and might have required correction to answers already given. In the new discovery reality, counsel should be seeking to avoid the need to bring witnesses back for further rounds of examination.
[16] Obviously the plaintiff is seeking to understand the basis for the counterclaim and whether or not there is evidence to support it. Here, the point of the question is to try to have the defendant clearly identify the documentary basis for his assertion that he contracted for a particular price range. Rather than producing a document which is not self explanatory, it would be better practice for the party providing the answer to provide a more complete answer explaining how the document supports the allegation or alternatively to concede that there is no specific document to support the pleading.
No. 18
[17] This was a clear question demanding that the defendant identify which plans and specifications the house was supposed to be constructed in accordance with. The undertaking was to review each set of the plans in his possession and to provide a response. This undertaking has not been answered. This is a fundamentally important question.
No. 20
[18] This question required a breakdown of the carrying costs forming part of the counterclaim. In answer, the defendant has provided a breakdown in an e-mail. For example he identifies the amount claimed for the cost overrun, the amount claimed for rental accommodation, the amount claimed for the mortgage on another property and the amount claimed for the carrying cost of the new property.
[19] Like questions 14 & 15 this undertaking has been answered but it is an answer that invites further scrutiny. Firstly the breakdown uses round numbers so that it is probable the breakdown is estimated. Secondly, there would clearly be documents that are relevant to each component of the breakdown. This latter is conceded and the defendants agree they will be providing a supplementary affidavit of documents in due course. Unfortunately this too is an invitation to follow up questions since the plaintiff has not yet seen the documents which form the basis for these numbers.
[20] This is not a peripheral question. The plaintiff is entitled to production of the documents supporting the claim for damages.
No. 30
[21] Compared to the rest of the counterclaim, this is a relatively minor issue but the defendant was asked to provide a breakdown of a claim for $15,000.00 set out in the pleading. In response the defendant has provided a document entitled “Summary of Emails for Ron – Answers for Kariouk Case” and subtitled “Extras some caused by Kariouk – the $15K question.” It contains a list of items and prices such as “frame tub skirt – 3 hrs @ 50 $150.00”. The various items are then marked with “A” or “G”.
[22] I have no doubt this is an attempt to answer the question but it is obviously an incomplete answer. Firstly the document fails to indicate which claims are asserted against the plaintiff. Furthermore, unless it is a guess, it is evidently a summary of other documents which have not been produced. As with the questions above, this is an answer that almost compels the plaintiff to ask further questions and should entitle the plaintiff to another round of discovery. In my view this answer is inadequate and I will direct a better and more complete answer be given.
No. 32
[23] This was an undertaking to produce a spreadsheet the defendant had prepared. A discrepancy between the spreadsheet and the billing by the plaintiff was identified in evidence as one of the reasons for not paying the plaintiff’s outstanding bill of $40,000.00. The undertaking was to produce the spreadsheet. This has not been done so the undertaking remains outstanding.
Ruling, Direction and Timetable
[24] In summary, Nos. 22, 13, 27, 28 & 31 remain outstanding though requests have belatedly been made to the City of Ottawa. The defendant is to follow up with the City and to make all reasonable efforts to obtain the information by March 15th, 2012. Nos. 18 & 32 have not been answered. The answers are to be provided by March 15th, 2012. The answer to No. 30 is inadequate. The defendant is to clearly identify which costs he is seeking to charge to the plaintiff and is to produce the documentary evidence for each amount. This is also to be accomplished by March 15th, 2012 at the latest.
[25] Nos. 14, 15 & 20 have been answered but in such a way that the defendant is entitled to ask follow up questions. At the option of the plaintiff, the defendants or either of them are to attend for a follow up examination to answer questions arising from these or other answers to undertakings. That follow up discovery is to take place before the end of April, 2012.
[26] In an effort to avoid the need for the further discovery, counsel are to confer and to consider what alternatives may be available. These might include voluntary provision of the necessary documentation and explanation, questions posed in writing, admissions or other ideas which I leave to counsel to consider. This discussion is to take place prior to February 29th, 2012. The election to accept any of these options will be that of the plaintiff.
[27] Finally, with respect to the timetable, as the defendants have now waived their own discovery rights and set the matter down for trial, a pre-trial date is to be set by the registrar for the first available date in May or June, 2012.
[28] I turn now to the issue of costs.
Costs
[29] Ordinarily costs of a motion should follow the event and in this case the plaintiff would be entitled to those costs. The motion was successful because it is clear the undertakings had not been answered prior to the motion being brought, that answers were provided only on the eve of the motion, that no answers had been provided on three remaining questions, that requests for information that were the subject of undertakings were only made at the last moment and that certain of the questions which were answered were answered so tersely as to demand either a further round of discovery or another process to extract the necessary information.
[30] Ordinarily the costs would be awarded on a partial indemnity scale giving appropriate weight to all of the applicable factors outlined in Rule 57.01. Two of those factors are the principle of indemnity on the one hand and the amount that would be reasonably expected on a motion of this nature and complexity on the other.
[31] I have the cost outlines. Mr. Cutler estimates that he spent 11.8 hours in motion preparation and indicates the actual costs incurred to bring the motion to be $5,519.81. Mr. Petersen indicates he spent 3 hours preparing his responding materials and estimates the actual cost of responding to the motion to be $2,957.78.
[32] Having regard to the time actually spent and to the factors set out in the costs outlines, I fix the partial indemnity costs at $2,900.00 (inclusive of HST) plus the disbursements of $229.81 (some of which include HST) for a total potential award of $3,129.81 on a partial indemnity scale.
[33] Before finalizing the question of costs, however, I must consider the arguments of both parties that might justify a different outcome. Collectively the parties have spent in the neighbourhood of $8,500.00 and have essentially wound up with a court ordered deadline and certain other directions.
[34] I must now consider if there are grounds for increasing or decreasing the award, withholding costs altogether or even grounds for reversing the usual result and awarding costs against the successful party.
[35] Each of the parties argues that the motion should have been unnecessary. The defendants argue that it was unreasonable, precipitous and adversarial of the plaintiff to bring a motion when there was no real dispute that the undertakings had to be fulfilled. I am also asked to deny costs because of the absence of a discovery plan. Conversely the plaintiff argues that he should receive substantial indemnity costs because the plaintiff was clearly entitled to the relief sought, that there was no excuse for only answering undertakings after a motion was brought, and the defendants were given ample and fair warning. In short each party blames the other for being unreasonable and demands that the court assign fault.
[36] In order to consider these arguments, and to consider whether or not fault is one sided, I am lead to the somewhat unsavoury exercise of reviewing correspondence and e-mail passing between counsel. Has there been a failure of either party to comply with their duties to each other and the court sufficient to modify the costs award?
Procedural History
[37] The first thing to observe is that this action has actually moved at a relatively brisk pace. The action was commenced on April 6th, 2011 and defended on May 30, 2011. The counterclaim was defended on June 9th, 2011. The time from commencement of the action to pre-trial will have been just over a year. Conceivably it will be possible to bring the matter to trial before its second anniversary. The motion is not about delay or attempts to impede the progress of the action.
[38] Let me also pause to say that Mr. Cutler is counsel for the plaintiff and Mr. Petersen for the defendant. Both are experienced counsel well known to the court. They are fully conversant with the Rules of Civil Procedure, Rules of Professional Conduct and Principles of Civility and Professionalism.[^1] Moreover they are both members of the County of Carleton Law Association familiar with the traditions of collegiality and collaboration which characterize the practice of law in this city. They are also knowledgeable concerning the availability of case management and other tools to assist in resolution of difficult procedural problems. Both are conscious of the Sedona Canada Principles dealing with electronic discovery. It is therefore quite remarkable to find that agreeing on a discovery plan or a deadline for answering undertakings was something that eluded them.
[39] On June 9th, immediately on receiving the reply and defence to counterclaim, Mr. Petersen responded by e-mailing Mr. Cutler proposing a mediator and asking for mediation dates. The next day Mr. Cutler sent an e-mail with various mediation dates and agreeing on Rick Brooks as the mediator. I note that the e-mail contained the phrase “there is no chance of settlement unless your clients accept our client’s offer to settle dated June 8, 2011” but went on to observe that as attendance at mediation is mandatory they would agree to the mediator and any of the proposed dates in July or August. I make little comment concerning that response other than the general observation that there might be more useful ways of approaching mediation than stating an inflexible bottom line and indicating that the exercise is a waste of time. For one thing the timing of mediation can be adjusted (on consent) and for another even if settlement is not achieved, it may be possible to reach agreements that streamline, focus or divert the litigation to another ADR option.[^2] This is not particularly germane to the question argued on this motion but it might be taken to put matters of form before substance.
[40] For purposes of the narrative it is important to observe that the e-mail exchange also included commitments from both counsel to provide affidavits of documents. Mr. Petersen said he hoped to provide an affidavit “in the next few weeks” and Mr. Cutler responded that he expected to provide his “next week and would request that you provide me with your clients’ affidavits of documents on or prior to June 30, 2011”. Attached to the e-mail was a proposed discovery plan prepared by Mr. Cutler. The plan was neither complicated nor detailed but it contained dates for affidavits of documents and deadlines for oral discovery. It proposed that photocopies of Schedule A documents be provided only if requested because many of the documents would be in the possession of both parties already.
[41] On June 21, Mr. Petersen responded by e-mail. He suggested that rather than paper copies of documents, there be electronic exchange of documents in “scanned pdf format with an accompanying csv file” containing certain searchable fields. Mr. Cutler felt that was too complicated and perhaps unnecessary given that his review of the documents suggested the vast majority of the documents would be in the possession of both parties. He proposed that the documents be indexed and Schedule As be exchanged prior to deciding whether or not electronic production was the proper way to proceed. Mr. Petersen responded indicating that they would wait and see what the lists disclosed but “our agreement to the discovery plan is withheld until we can review the lists”. This e-mail exchange took place on June 21st, 2011.
[42] In effect Mr. Petersen was refusing to sign off on a formal discovery plan and reserving the right to request electronic production but he was not declining to provide an affidavit of documents nor was he in fundamental disagreement with the timing of production or discoveries. In fact it appears counsel had no difficulty in arranging discoveries. Rather than stating that there was no plan, it might have been more accurate to state that the plan was acceptable subject to the commitment to review the form of production following exchange of affidavits of documents in order to determine if it would be more efficient to exchange productions in electronic format. The obligation to engage in discovery planning includes an obligation to confer at the outset and to continue to collaborate on an ongoing basis in order that the plan may be adjusted as necessary.[^3]
[43] On July 8th, Mr. Cutler wrote demanding the defendants’ position on the proposed discovery plan and serving a notice of examination for discovery for August 16th, 2011. He indicated that if the date was not convenient he would be prepared to reschedule. He also requested the defendants’ sworn affidavits of documents which had not yet been provided. It should be noted that mediation was scheduled for the next day and in fact that mediation took place on July 9th with Mr. Brooks. As predicted by Mr. Cutler the case did not settle at mediation.
[44] The defendants were examined for discovery on August 25th, 2011 and Mr. Pombo’s discovery was continued and completed on October 4th, 2011. Approximately 33 undertakings were given and three questions were taken under advisement. The defendants did not examine the plaintiff.
[45] On November 8th, 2011 counsel for the plaintiff wrote to defendant’s counsel with a list of undertakings and requested that he be provided with answers “as per the enclosed chart”. On November 18th, Mr. Petersen replied waiving his own client’s right to conduct oral examinations and indicating that “we are working on completing our answers to the undertakings and will forward them on to you shortly.” All of the correspondence was sent by fax or e-mail so it was delivered on the same day that it was sent. What is of note, with the benefit of hindsight, is the commitment to answer “shortly” as opposed to a commitment to answer by a fixed deadline.
[46] On December 15th, 2011 Mr. Cutler wrote with a second request for the answers to undertakings. In that letter he stated that if “we do not receive the answers to undertakings and questions taken under advisement, on or prior to January 10, 2012, our client will proceed with a motion”. The letter does not appear to reference the letter from Mr. Petersen dated November 18th. Since the latter acknowledged the duty to answer the undertakings and confirmed that they would be answered, it was perhaps unnecessarily adversarial to immediately threaten a motion. A more courteous response might have been to request a deadline for the answers or to pick up the phone and discuss the matter. The tone of the December 15th letter suggests either that Mr. Cutler was not aware of the letter of November 18th or had chosen to ignore it. On the other hand it is true that Mr. Petersen’s correspondence did not commit to a deadline and with the benefit of the affidavit evidence now before me it is apparent that in reality no active steps had been taken by the defendants to obtain the answers to all of the questions.
[47] On January 11th, Mr. Cutler wrote to Mr. Petersen advising that it had now been five and a half months since Ms. Martinez gave undertakings and over three months since the last of Mr. Pombo’s undertakings were given. He further advised that in accordance with his letter of December 15th, it “has become necessary to bring a motion” and he referenced the commitment made by Mr. Petersen on November 18th to answer the undertakings “shortly”. He then proposed four motion dates in February and indicated that if he did not have confirmation as to which of those dates was suitable by January 12th, 2012 he would proceed to set the motion down for one of the dates without further notice.
[48] On January 12th, Mr. Petersen wrote back indicating that the advisements were now to be treated as undertakings, that he had some but not all of the information requested and expected to deliver some of the answers the “following day”. He further took the view that as his client had committed to answer the undertakings and the advisements, there was no impediment to the plaintiff setting the action down for trial. He suggested there would not be any “rush to answer the undertakings” in that circumstance inferring I presume that the failure to answer immediately should not delay the conduct of the action. He went on to say that if the plaintiff decided to go to court over the undertakings, it would be the defendants’ position that “this is a waste of time and will seek costs against your client.” Again he did not propose a specific date by which the undertakings would all be answered.
[49] No answers to undertakings were delivered the next day. Mr. Cutler launched the motion returnable February 7th, 2012 and served the material on January 17th. On January 26th, 2012 the majority of the answers were provided. The rulings above deal with the sufficiency of a small number of the answers and the ones that remain outstanding.
Analysis
[50] The question is whether there is any basis in the above for increasing, decreasing or reversing the ordinary cost consequences? This might be appropriate if, for example, the failure to have a discovery plan should disentitle the parties to relief or to costs, the motion was premature, frivolous, vexatious or an abuse of process, the conduct of one of the parties was such as to waste costs or incur unnecessary costs or if there was a drastic breach of expected standards of advocacy and civility.
[51] Besides the new rule requiring a discovery plan, there are reasons why a successful party might be deprived of costs and there are circumstances where costs are awarded against a successful party.[^4] Essentially the arguments against rewarding the moving party with costs are three:
a. There was no discovery plan in place and specifically no deadline had been agreed upon for answering undertakings;
b. It was precipitous and unreasonable to bring the motion when there had been a commitment to answer the undertakings;
c. Insisting on unreasonably strict adherence with the Rules of Civil Procedure is a breach of principles of civility particularly when the defendants had co-operated in moving the action forwards with rapidity and were prepared to set a pre-trial and trial date.
[52] I have taken the time to set out in some detail the formal communication between counsel in order to analyze these objections in the context of this particular case. There is nothing in evidence about telephone or face to face dialogue so although I might wonder why the matter was not simply resolved in that manner, I will deal only with the communication that is a matter of record.
[53] Firstly, it is hard to fault Mr. Cutler for giving notice in advance of what he intended to do and then doing what he said he would do. There is no way to reasonably conclude that Mr. Peterson was not given ample notice or should have been taken by surprise. All of the letters were courteous and while they were firm, proposing fairly short deadlines, nothing in those letters nor in the steps that were taken was inherently unreasonable.
[54] Lawyers are obligated to treat each other with courtesy and respect and to grant reasonable indulgences but they also have a positive duty to advance the interests of their clients. This tension is reflected in the Rules of Professional Conduct. Rule 4 requires a lawyer to represent each client “resolutely and honourably within the limits of the law”. Rules 4 & 6 require the lawyer to act courteously, civilly and in good faith towards opposing counsel in litigation.
[55] The Principles of Civility for advocates contain more detailed norms of behaviour. Advocates are charged to avoid unnecessary motion practice or other judicial intervention by negotiating and agreeing with opposing counsel whenever practicable.[^5] Advocates are generally expected to give notice to the opposing counsel before taking fresh steps that might reasonably take them by surprise.[^6] Advocates are also expected to grant reasonable extensions of time and scheduling changes where they can do so without sacrificing the client’s interests.[^7]
[56] One could easily rescript what occurred in this case to achieve a better outcome. The exercise of discovery planning should not break off just because counsel disagree on the format of productions. There are very good reasons to co-operate to keep the costs down on both sides and to exchange productions electronically in a format that is searchable and easily portable into litigation software in use by each firm. This is particularly so when, as here, the vast majority of the documents are in reality electronic documents that began life as e-mails, spreadsheets or electronically generated letters. In that regard, the Sedona Canada Principles and related information such as the Sedona Canada Commentary on Cost Containment or the Sedona Conference Co-operation Proclamation[^8] are useful resources.
[57] But the rule requiring a discovery plan and requiring consideration of the Sedona Canada guidelines is not designed to impede the progress of actions nor to provide a new weapon to resist production or discovery motions. It is certainly not the intent to unduly complicate simple actions by imposing overly complex discovery and production obligations. Quite the contrary. The expectation is that counsel will work together to tailor the production and discovery to the needs of the litigation (proportionality being a newly articulated guiding principle). Counsel could be faulted here for not engaging in that exercise more wholeheartedly. Mr. Petersen could be faulted for announcing that there was no plan until there was agreement on the format for production. Mr. Cutler could be faulted for not trying to address Mr. Petersen’s need to have the productions in a more useable format. Both counsel could be faulted I suppose for the idea that e-mails should be printed and then scanned into pdf format.
[58] What would be inappropriate would be to deny the plaintiff costs of a motion to enforce undertakings when the plaintiff had attempted to propose a plan and when in reality there was agreement on the exchange of affidavits of documents and on the dates for discovery. The only relationship between the plan and the undertakings is the failure to include in the plan any deadline for answering undertakings. Such a deadline was recommended as a critical component of discovery planning by the Ontario Discovery Task Force in November of 2003.[^9] Though such a deadline is accordingly a prudent best practice, it is not a mandatory requirement of the plan required by Rule 29.1.03. It is not a fatal omission. It is also possible to establish a deadline when giving or receiving an undertaking.
[59] I have never understood why parties at discovery do not include a time for answering undertakings in the undertaking itself. The party giving the undertaking should know how long or how difficult or how expensive it will be to seek the requested information. The parties know if there is merit in holding off on answers to undertakings while settlement discussions unfold or if the answers are critical to either a negotiated or an adjudicated resolution. In fact just such an approach was proposed by an OBA working group following the report of the Ontario Discovery Task Force:
“Before agreeing to an undertaking, be clear on the feasibility of fulfilling it, and set out agreed timelines for fulfilling the undertaking. Phrase undertakings carefully to correctly reflect what information will be provided.”[^10]
[60] In summary, a counsel of perfection would be to have included the deadline for answering undertakings in the discovery plan or in the undertakings themselves. A further alternative would have been to ask for a deadline in response to the correspondence promising the answers “shortly”. Any of these strategies might have avoided the need for a motion. Of course in Ottawa (and other jurisdictions in which Rule 77 is in force) it is also possible to make a request for case management if the circumstances suggest there will be complex or difficult discovery issues. That is a further possibility although it is not one that should have been necessary in my view in this case.
[61] There is no basis however for arguing that Mr. Cutler was in any way guilty of incivility or acted with anything but complete integrity. He said what he would do and then he did what he said when he said he would do it. There was sufficient advance notice. Had Mr. Petersen responded to the threat of a motion with a specific request for an indulgence then Mr. Cutler would have been required by the Principles of Civility to grant a reasonable extension of time if he could do so without material adverse affect on the client’s interests. Such a request for an indulgence, in my view, should have included an explanation for why the responses were delayed (such as his client being unavailable overseas, the holiday season, outstanding requests to third parties or trial commitments if such impediments existed) and commitment to a firm deadline such as the March 15th deadline which has now been ordered on consent. If that had been the response and had the motion been brought anyway, I might well have considered withholding an award of costs. Such was not the case.
[62] It does not appear to me that there is any basis for a costs award different from that which would ordinarily result from such a motion. There is no basis to deprive the successful moving party of costs. Nor is there a basis to award costs on a substantial indemnity scale.
Disposition
[63] The parties are to comply with the timetable and directions set out in paragraphs 24 – 27 above.
[64] The defendants will pay costs on a partial indemnity scale fixed at $3,121.81 calculated as set out in paragraph 32, above. The costs are to be paid within 30 days.
Master MacLeod
Date: February 14, 2012
[^1]: The former have the force of law whereas the latter are principles published by the Advocates Society in 2001 & 2009 but frequently referred to in decisions of this court, endorsed on the court’s web site and circulated to all lawyers in Ontario by the Law Society.
[^2]: See for example, Stitt, Allan, Mediating Commercial Disputes, 2003 Canada Law Book Inc, pp 59 - 61
[^3]: See Rule 29.1.04 and Sedona Canada Principles, Principle No. 4.
[^4]: See for example Naumovich v. Edwards, [2004] O.J. No. 1472 (S.C.J.), ABC Metal Products Inc. v. Franzem [2003] O.J. No. 4077 (Master), Plackmann v. 1399436 Ontario Inc. v. 1399436 Ontario Inc. [2007] O.J. No. 2463 (Master)
[^5]: Principle #5.
[^6]: Principle # 6.
[^7]: Principle # 13
[^8]: Available at http://www.thesedonaconference.org or through the OBA or Lexum websites
[^9]: Available on the Ontario Courts website: http://www.ontariocourts.on.ca/scj/en/reports/discoveryreview @ p. 87
[^10]: 2005 OBA “Discovery Best Practices” at: http://oba.org/en/pdf_newsletter/DTFGeneralDiscoverybest.pdf . Item 14 (b)