Griggs v. Gabay, et al.

Court File No.: CV-12-456483

Motion

BEFORE MASTER ABRAMS

Heard: January 30/13

In attendance:

A.J. Winton, for plaintiff (4-598-3730, f.)

T.J. Gorsky, for defendants (4-603-6035, f.)

By the court:

The first incarnation of this motion was to have the court impose a discovery plan. Since then, the defendants have proposed a form of discovery plan which differs, relatively minimally, from the form of discovery plan proposed by the plaintiff. The plaintiff wishes me to decide whose discovery plan ought to govern and the defendants say that I do not have jurisdiction to do so or, in the alternative, that it is premature for me to do so.

I am inclined to agree with the submissions made by the defendants. There is no question but that a discovery plan needs to be negotiated; and, to the extent that there is disagreement that impacts upon the conduct of the action, a motion for directions can be brought. That said, it is difficult for the court to determine relevancy, proportionality and unity of interests (v. identity of interests as the issue relates to whom Mr. Griggs’ counsel may examine for discovery[^1]) without an appropriate evidentiary record being proffered. For me to take two competing discovery plans and, where there is disagreement, mediate the dispute where one party says that I do not have enough information to do so effectively would not be fair.

It is true, as Mr. Winton argued, that a motion for directions might be brought if there is a breakdown in the discovery planning process; but, the record on a motion for directions would be different than the record now before me (being a record that addresses the defendants’ failure to settle the terms of a discovery plan, which failure was rectified—even if imperfectly, according to the plaintiff—by the time the motion was argued). It would be more focused. Further, this is not a case managed action; my familiarity with the factual and procedural underpinnings of the action is borne of my having decided one motion in a related but separate action. That familiarity isn’t sufficient, without more, to permit me to make the kinds of determinations that the plaintiff would here have me make.

In the context of argument, counsel resolved some of their differences. Specifically, Mr. Gorsky is now prepared to agree that production will be made of “[a]ll internal financial statements and analysis of the costs of PMG during the period of Mr. Griggs’ employment”; and, Mr. Winton has withdrawn the request for “[a]ll board, trustee and PMG materials and correspondence, notes, and records of meetings or telephone calls relating to the appointment of Mr. O’Reilly as board counsel and the termination of its previous counsel, Murray Gold” and modified his client’s request for documents re: the relationship between Mr. Campbell and Ms. Ranson such that all that is being sought is production of documents establishing whether there was a relationship and, if so, production of documents shedding light on its nature.

Discovery planning is a dynamic process. Mr. Gorsky acknowledges that his clients’ position may well evolve in the fullness of time, as the action progresses. He also acknowledges, and I agree, that it may be that the plaintiff and/or the defendants will wish to return to court to seek direction or a determination of issues in respect of which there is disagreement. Nothing in my decision precludes them from doing so.

Having regard to the time that has elapsed, including since counsel were last before me, I recognize that the timelines discussed on January 30/13 may need to be extended. If counsel are unable to reach agreement as to appropriate timelines, I will decide the issue for them. Further, if the parties are unable to agree on the issue of the costs of the plaintiff’s motion, I may be spoken to. At this time, and on the evidence before me, I am not satisfied that case management is warranted (particularly having regard to the Low, J.’s failure to order this action case managed); but, I would be pleased to assist the parties with “light touch” case management, as it were—deciding discreet procedural issues (such as the timing issue) and assisting the parties with scheduling logjams.

March 5/13 ______________________

[^1]: In this regard, Mr. Gorsky points out that there has been no separation of interests in the statement of claim, with damages having been sought from “the defendants”. While Mr. Winton urges me to invoke a R. 31.03(9) analysis and says that the defendants have not satisfied the court that multiple examinations would be oppressive, vexatious or unnecessary, Mr. Gorsky’s perspective (with which I agree) is that the evidentiary foundation for a determination of who might be examined and why, in the particular circumstances of this action, has not yet been laid in a manner sufficient for him to be able to address this issue, effectively. Indeed, and in any event, I note that, until the return of this motion, the plaintiff was content to examine (with a reservation of rights) two defendants only.