Court File and Parties

COURT FILE NO.: CV-11-9316-OOCL
DATE: 20130916

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Luis H. Navas, Plaintiff

AND:

Hospitals of Ontario Pension Plan, Defendant

BEFORE: Campbell J.

COUNSEL:
Justin Tetreault, for the Plaintiff

Peter H. Griffin, Emily Graham, for the Defendants

HEARD: In Writing

Endorsement

[1] The motion by Hospitals of Ontario Pension Plan (“HOPP”) for production by Navas of invoices to a third party OMERS for services by Navas as a consultant during a time in which Navas billed HOPP was dealt with in writing and based on the submissions of the parties. The issue is a narrow one and is resisted by Navas on the basis of relevance.

[2] HOPP seeks to test as it says, not simply as a matter of credibility, the basis on which Navas billed OMERS to test the assertion that Navas practice was to always bill on a fixed fee basis. That issue is the subject of the dispute (i.e. the basis of billing) as between Navas and HOPP. Navas takes the position that not only does it not have an obligation to produce based on relevance it no longer has the requested documentation in its power or control, and has no obligation to request the same from OMERS and those parties regard those invoices as confidential information.

[3] Navas asserts the appropriate step would be to have HOPP seek to obtain the same directly from OMERS and allow NAVAS to resist based on its position that the information is not relevant to the HOPP litigation. I am satisfied having read the submissions of counsel that at least at this stage the information sought does indeed have the potential for relevance at a trial of the HOPP litigation.

[4] In many instances it is difficult for a motions judge to make a definitive call of relevance at the discovery stage.

[5] I note that as reported in the Report of the Discovery Task Force in Ontario the legal profession in Ontario was not prepared to accept the adoption of the Rule of the United States Federal Rules that directs that when an objection to discovery is made on the basis of relevance, the question is nevertheless to be answered with the opportunity to renew the objection as to relevance at trial.

[6] I accept that application of the US Rule might not be appropriate in every circumstance in discovery in Ontario. However I fail to understand why in a circumstance as this, counsel resisting the production of documentation would not agree to produce and leave the ultimate issue of relevance to the trial judge. My conclusion on this motion is that the information with respect to Navas billings to OMERS may have relevance to the interpretation of the contract as between Navas and HOPP.

[7] Based on potential relevance, I conclude that if the documents had remained in the possession of Navas, they would be ordered to be produced subject to Navas being able to object at trial on the basis of relevance. As noted below there is no issue of proportionality as it would appear OMERS would make the material available, if requested and Navas did not object.

[8] Given this conclusion Navas should not, in my view, given the fact that the documents were in its possession, object to granting permission to OMERS to produce the same.

[9] I understand the argument that Navas cannot direct or control OMERS but based on the material filed, I understand OMERS takes no position on the motion.

[10] Hence presumably the direction to Navas to not object to the production by OMERS will have the desired effect with the ultimate determination of relevance being left to the trial judge.

[11] An Order will issue accordingly given the above disposition. I would reserve the issue of costs to the trial judge but fix the sum at $3,000 given that the motion was dealt with in writing.

C. CAMPBELL J.

Date: September 16, 2013