Court File and Parties

Court File No.: CV‑09‑37858800‑0000
(ONTARIO)
THE SUPERIOR COURT OF JUSTICE

B E T W E E N :

PEG HUDSON, SARAH CHRISTINE HUDSON and ROSE HUDSON

Plaintiffs

‑ and ‑

ATC AVIATION TECHNICAL CONSULTANTS, CANADIAN AERO ENGINES AND ACCESSORIES, CORPORATE AIRCRAFT RESTORATIONS INC., PROGRESSIVE AIR SERVICES LTD., ECI ENGINE COMPONENTS, INC., SUPERIOR AIR PARTS, INC., VALLEY AERO ENGINES LTD., THE ESTATE OF JOSEPH GRIECO, DECEASED, TONY VANVARI, THE EXECUTOR OF THE ESTATE OF JOSEPH GRIECO and 1419937 ONTARIO INC.

Defendants

‑ and ‑

PEGGY LYNNE HUDSON, EXECUTRIX OF THE ESTATE OF

MAXWELL B. HUDSON, DECEASED and JOHN BAYES

Third Parties

‑‑‑ Before THE HONOURABLE MR. JUSTICE MYERS, sitting without a jury, at the Court House, Courtroom 803, 393 University Avenue, Toronto, Ontario

TITLE PAGE CONTINUES ON THE FOLLOWING PAGE

A P P E A R A N C E S :

A. LECKY ) ‑‑ Counsel for the Appellants,
) Continental Motors and
) Technologies Incorporated,

TIMOTHY TREMBLEY, ESQ. ) ‑‑ Counsel for the Respondents,
) 1205055 Ontario Limited,
) carrying on business as ATC
) Aviation Technologies
) Consultants

_____________________________)

INDEX OF PROCEEDINGS

PAGE NO.

TUESDAY, MARCH 4, 2014

Reasons:

Myers, J. (Orally). . . . . . . . . . . . . . . . . 6 ‑ 8

INDEX OF EXHIBITS

EXHIBIT NO. DESCRIPTION PAGE NO.

(There are no exhibits entered in these proceedings).

TUESDAY, MARCH 4, 2014

‑‑‑ Upon resuming at 11:14 a.m.

THE REGISTRAR: Court is now resumed; please be seated.

THE COURT: Mr. Trembley, I don't need to hear from you. Mr. Trembley, I don't need to hear from you.

R E A S O N S

This is an appeal by Continental Motors and Technologies Incorporated from the order of Master McAfee dated December 3, 2013, concerning production of documents in favour of the co‑defendant, 1205055 Ontario Limited, carrying on business as Aviation Technologies Consultants ("ATC").

The parties to this appeal are defendants in several lawsuits arising from an airline crash in 2007 in which three people died. The lawsuit involves significant legal and factual issues with serious consequences to the parties and public safety and claims for a substantial quantum of money.

The appellants were manufacturers of the engine that failed and was identified as one of the causes of the fatal accident. The Master ordered the appellants to produce documents concerning parts, counterweights, and accidents, other than specific parts, counterweights, and accidents in issue in this lawsuit.

The Master found that the documents were relevant, not just to show that the appellants had a propensity to manufacture improperly, but to show that they knew of issues with similar systems that are probative of what it knew, did, and said in relation to the engine and accident in this case. That is, the documents sought, in my view, are relevant to the products liability and duty to warn causes of action pleaded.

Having looked at the pleadings identified by the Master and heard submissions of the appellants' counsel, I see no error of law on the Master's assessment of relevancy.

In fairness, the thrust of the appellants' case relates to proportionality and the effect of Rule 29.2. The appellants say that production of 39 years of documents for 15 parts and over 50 models is disproportionate and excessive on the face of the request.

Rule 29.2 applies to all actions, large and small, Ontario v. Rothmans Inc., 2011 ONSC 2504 at paragraph 164. Its purpose is to recognize that the traditional test of relevancy of documents has led to an expansion of production obligations commensurate with the explosion of information in the computer age.

Rule 29.2 reflects a balancing of interests and a recognition that the process of searching for and reviewing documents may impose significant costs and manpower burdens beyond reasonable and fair limits for an action when viewed objectively. Production costs are a significant issue identified in reviews of access to justice. Anyone who has been involved in a major document review effort for discovery purposes can readily comprehend that the cost of customized computer search tools, sub‑contracted professional searchers and coders and legal reviews for privilege and relevancy alone can easily reach into the millions of dollars. Moreover, if the documents being sought have only a tangential "semblance of relevancy" to use a familiar term, then one can quite really understand that the burden imposed by the process can exceed any reasonable expectation of documents being located on which the case will eventually turn. Even in large cases, the law of diminishing returns suggests limits are appropriate for production obligations.

Rule 29.2 prescribes the criteria that set the limits on production obligations. Rule 29.2 provides for a factual inquiry into such matters as: the time involved, expense, prejudice, interference with orderly progress of the action, availability of documents otherwise, and excessive volume of the documents sought. In some cases, especially small cases, it may be self‑evident from the amount in issue and a description of the documentary information sought that subparts of Rule 29.2 are engaged. This is not to say that evidence would not be admissible. It is nearly always best practice to provide evidence to the Court to support factual assertions made by counsel rather than relying on judicial notice or other forms of proof. However, in a large case where a party claims that it is being asked to bear a burden that is disproportionate to the amounts in issue or the importance of the issues, then evidence is required. See Midland Resources Ltd. v. Sthaif, 2010, ONSC 3772, at paragraph 15.

While the appellant here complains that it is being asked to produce a large number of document categories over a very substantial period of time, it is in a regulated field where the evidence shows information is routinely updated as the state of knowledge advances.

The appellant filed no evidence before the Master concerning the issues under Rule 29.2. The Master was not told whether all of the information sought may already be conveniently accessible in one or two file banks or known, accessible computer databases, or whether by contrast, the appellants will be required to hire a phalanx of computer programmers to create software to access databases that may have been long since retired and cannot be manipulated by current technology.

The Master carefully reviewed and considered the relevancy of the material sought in light of the issues pleaded. She exercised her discretion to order production, balancing what was before her. This is a significant case involving the loss of three lives with tens of millions of dollars in damages being claimed. Absent evidence from the appellants with the description of hardship sufficient to meet the subheadings of Rule 29.2 to counterbalance the relevancy and discretionary factors considered by the Master , I cannot see a basis to conclude the Master erred in law, principle, or appreciation of the facts to the standard of a palpable and overriding error. Accordingly, the appeal is dismissed with costs to the defendant/respondent ATC in the amount of $8,727, inclusive of costs and interest.

I appreciate the assistance of the Appellants' counsel. Her submissions, while excellent, were without avail today.

‑‑‑ Whereupon court adjourned at 11:27 a.m.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, MICHAEL CORNWALL, certify that this document is a true and accurate transcript of the recording of Hudson et al. v. ATS Aviation et al. in the Superior Court of Justice, held at Courtroom 803, 393 University Avenue, Toronto, Ontario, taken from recording 4899_803_20140304_094445_10_MYERS.dcr, which has been certified in Form 1.

(Date) (Signature of Authorized Person(s)