CITATION: Shaver and Meatsnax Inc. v. Great Canadian et al, 2016 ONSC 4059
COURT FILE NO.: CV-12-310-00
DATE: 2016, July 6
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARCUS SHAVER and MEATSNAX INC.
Plaintiffs
– and –
GREAT CANADIAN MEAT COMPANY INC., CHRIS KURZ, MURRAY HART and CODY DAVIS
Defendants
Marc Munro, for the Plaintiffs
Melissa Belliveau, for the Defendant Murray Hart and Ian Johncox, for the Defendants, Great Canadian Meat Company Inc. and Chris Kurz
HEARD: January 21, 2016
Tausendfreund, J.
ENDORSEMENT
[1] These reasons are supplementary to my Endorsement released January 26, 2016.
[2] As I already noted, in my earlier endorsement of the motion heard January 21, 2016, the Plaintiffs and the Defendants, Great Canadian Meat Company Inc. and Chris Kurz (the “GCMC Defendants”) could not agree on the appropriate discovery plan. The Defendant, Cody Davis, was earlier noted in default. Counsel for the remaining Defendant, Murray Hart, accepted the Plaintiffs’ draft discovery plan, subject to amendments to which the Plaintiffs agreed and as detailed in paragraph 3 of my endorsement released January 26, 2016.
[3] This action started June 15, 2012. On September 21, 2012 the Plaintiffs delivered their affidavit of documents and on September 24, 2012 the parties scheduled examinations for discovery to start September 17, 2013. On June 24, 2013 the Defendant Hart consented to the discovery plan proposed by the Plaintiffs and provided his affidavit of documents.
[4] Based on the failure of the GCMC Defendants to respond to the Plaintiffs’ discovery plan, examinations for discovery were cancelled on August 28, 2013. On September 6, 2013 the GCMC Defendants proposed an alternate discovery plan the substance of which was not acceptable to the Plaintiffs.
[5] A status hearing was then held on November 28, 2014 which was then adjourned to January 29, 2015. On January 15, 2015 and in advance of the status hearing, the Plaintiffs’ then newly appointed counsel provided a draft discovery plan and asked opposing counsel for comment. The response from counsel for the GCMC Defendants was to the effect that they did not intend to engage in a dialogue regarding the proposed discovery plan and that the GCMC Defendants would seek a dismissal of the action at the status hearing.
[6] At the return of the status hearing on January 29, 2015 I ordered that :
a) The status hearing be adjourned to January 28, 2016;
b) By May 31, 2015 the parties were to attempt to arrive at an agreement on a discovery plan;
c) If the parties could not come to an agreement on a discovery plan, by June 30, 2015 the Plaintiffs were to serve and file a motion for terms of a proposed discovery plan; and
d) Counsel were to attempt to identify a timetable for discoveries, undertakings, answers and refusals and a date when the action was to be set down for trial.
For reasons that are unclear, the GCMC Defendants did not approve that order until June 29, 2015. On that date, the Plaintiffs sent another request for comments by the GCMC Defendants on the Plaintiffs’ proposed discovery plan. In the absence of a response, the Plaintiffs made renewed requests on September 10 and October 19, 2015 and then brought a motion returnable January 21, 2016. The GCMC Defendants again sought a dismissal of the action on the return of the status hearing. On that date I ordered that the status hearing be adjourned sine die and that the parties were to be governed by a discovery plan as agreed or ordered. Absent an agreement, each side was to provide a factum on the proposed particulars to be included in the discovery plan.
[7] I note and adopt these observations of Master MacLeod (now Justice MacLeod) in 417 Infinity Nissan Limited v. Nissan Canada Inc., 2014 ONSC 3719:
. . . Rules 29.1 and 29.2 require that in the litigation and on an ongoing basis counsel are to meet and confer in order to plan for effective, efficient and proportionate production and discovery. This is intended to be a collaborative rather than an adversarial exercise. The objective is to avoid unnecessary discovery costs and delays caused by discovery and production disputes.
For discovery planning to be effective in achieving its objective, the parties must approach the needs of the action with clarity, common sense and good faith. It requires the parties to think clearly about what is really an issue in the litigation and about the evidentiary needs of the case considered from both the position of the Plaintiff and the Defendant.
[8] For reasons that again are not clear, counsel for the Plaintiffs and the GCMC Defendants failed to communicate meaningfully or very little, at best. These two did not or could not share or come to terms with the meaning and intent of a discovery plan as detailed in Rule 29.1.03. It appeared to be an abyss that separated these two and one which they were unable as yet to bridge.
[9] I return to further comments by then Master MacLeod in Lecompte Electric Inc. v. Doran (Residential) Contractors Ltd., 2010 ONSC 6290:
Discovery planning is intended to permit the parties to map out the most efficient and effective way to organize the production and discovery needs of the particular action having regard to the complexity of the records, the issues in dispute and the amounts at stake. It cannot be an adversarial exercise. Planning is also intended to minimize the need for court intervention, but obviously there will be situations in which there are legitimate disagreements. In a case managed environment, a case conference may resolve this and other cases. The same end may be achieved by a motion for directions.
A case conference or a motion for directions may well involve competing discovery plans, but establishing efficient and effective procedures for these matters must not itself become an occasion for adversarial advocacy. If that occurs, the whole point of the exercise will be defeated. Certainly, obtaining direction from the court should not normally require lengthy affidavits, voluminous documents, factums and briefs of authorities. A contested motion is a poor planning forum.
[10] I concur fully with these comments. Somehow I became conscripted in this exercise which to date, has not served these parties well. This exercise has already been too long and too costly. I repeat that it is intended to be a collaborative rather than an adversarial exercise.
[11] Upon reflection, I am now of the view that if parties are unable to reach an agreement on the scope and the extent of a discovery plan, as contemplated by R. 29.1.03(3), a case conference would be the preferred option to resolve on an expeditious and least costly basis any differences in the discovery plan each side proposed. Unfortunately that is now a little too late for these parties.
[12] A discovery plan as Rule 29.1.03(3) contemplates, in my view should identify and include:
a) The intended scope of documentary discovery;
b) The timing of production;
c) The manner of production;
d) The persons to be discovered, the dates and the required time of that discovery; and
e) Proposals regarding expeditious and cost effective completion of the discovery process.
[13] I have reviewed the discovery plan each of these two parties submitted. There is a stark philosophical difference in the approach each considers appropriate in formulating the proposed plan. The draft plan proposed by the GCMC Defendants, in my view is far more detailed than the basic requirements contemplated by R. 29.1.03(3). I am satisfied that the Plaintiffs’ draft discovery plan adequately addresses the contents set out in that rule. As these parties were unable to reach an agreement, I find that the draft plan proposed by the Plaintiffs and as amended by my endorsement of January 26, 2016, is sufficient in detail and will serve as a discovery plan for these parties in this action, subject to this amendment to the “oral discovery” part of the plan:
a) Each side shall name the parties expected to be examined;
b) Oral discovery is to be limited to 7 hours per examining party unless extended by agreement or leave of the court.
c) As the passage of time has overtaken dates earlier contemplated by counsel, the following dates will now apply to the discovery plan in this action:
a) All parties shall deliver executed affidavits of documents on or before August 31, 2016.
b) All parties shall deliver Schedule A productions on or before October 15, 2016.
c) Examinations of the parties shall commence by March 15, 2017, and shall conclude not later than May 15, 2017.
d) Motions, if any, for undertakings and refusals shall be filed on or before July 31, 2017, to be heard on the dates first available and as set by the Trial Coordinator.
[14] In the normal course, costs would follow the event. If the parties are unable to resolve the costs issue on this motion, they may provide short written submissions within 45 days.
Justice W. Tausendfreund
Released: July 6, 2016
CITATION: Shaver and Meatsnax Inc. v. Great Canadian et al, 2016 ONSC 4059
COURT FILE NO.: CV-12-310-00
DATE: 2016, July 6
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARCUS SHAVER and MEATSNAX INC.
Plaintiff
– and –
GREAT CANADIAN MEAT COMPANY INC., CHRIS KURZ, MURRAY HART and CODY DAVIS
Defendant
ENDORSEMENT
Tausendfreund, J.
Released: July 6, 2016