Court File and Parties

COURT FILE NO.: CV-10-8978-00CL

DATE: 2016/11/16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DEUTSCHE POSTBANK AG, Plaintiff/Responding Party

AND:

KOSMAYER et. al, Defendants/Moving Parties

BEFORE: MASTER RONNA M. BROTT

COUNSEL: J. Boily and S. Azzopardi, student-at-law, for the Plaintiff

Fax: (4160 863-1716

T. Wilson, for the Defendants

Fax: (4160 863-4592

HEARD: October 11, 2016

ENDORSEMENT

[1] The defendants seek an Order requiring the plaintiff to produce English-language translations of all documents listed in the plaintiff’s Affidavit of Documents dated April 5, 2012 and the Supplementary Affidavit of Documents dated January 31, 2013. The defendants seek production of these translations prior to attending examinations for discovery.

[2] The defendants first requested translations of the plaintiff’s German-language documents on May 18, 2012. Having received additional documents from the plaintiff, but no response to their inquiry regarding translation, the defendants followed up on June 19, 2013 and January 27, 2014. On June 30, 2016 the plaintiff, still silent on the issue of translation, advised the defendants that they had received instructions to compel the defendants’ attendance at examinations for discovery.

[3] The issue on this motion is – who has the obligation, if any, to translate their documents prior to discovery – the producing party or the receiving party?

The Law

[4] There is no specific rule in Ontario regarding document translation. The plaintiff submits that there is no obligation on a party to translate documents it produces on discovery, and that for courts to impose such an obligation “could have a chilling effect on access to justice for non-Canadian and non-English speaking litigants.”

[5] The plaintiff relies on the court’s specific requirement that where a document is filed in court, the party seeking to rely on that document must provide a translation. Because there is no corresponding rule as part of the discovery process, the plaintiff asserts that there is no obligation. The plaintiff distinguishes between documentary discovery and oral examinations. On oral examination, the parties are to understand the case they have to meet whereas on documentary disclosure, the ongoing obligation is simply to produce relevant documents. That obligation, in the submission of the plaintiff, does not include the requirement to assist the opposing parties to understand the significance or relevance of the documents.

[6] The defendants, on the other hand, submit that an effective examination for discovery cannot be conducted absent examining counsel’s comprehension of the opposing party’s documents. To refuse to translate would, according to the defendants, defeat the purpose of the oral examination for discovery.

[7] The issue of document translation was considered by Lauwers, J (as he then was) in Davies v. Clarington 2010 ONSC 6103. In that case Justice Lauwers held that the producing plaintiff was required to translate its Polish-language documents into English. He stated:

In accordance with section 125 of the CJA and Rule 1.04(2) of the Rules, as a general rule a person producing a document as relevant should be obliged to provide a translation of it in the official language in which the proceedings are being conducted as part of the document discovery process.

[8] Justice Lauwers held that section 125 of the Courts of Justice Act, read together with rule 34.09 of the Rules of Civil Procedure requires the provision of translation by the party that produces foreign-language documents prior to examinations for discovery.

[9] Rule 34.09 of the Rules of Civil Procedure states that where an interpreter is required during an oral examination because the person to be examined does not understand the language in which the examination is to be conducted, that party shall provide the interpreter. He analogizes that if a party has put forward documents as relevant, then the opposing parties should be entitled to their translation. Justice Lauwers relies on Rule 1.04(2) which states: “Where matters are not provided for in these rules, the practice shall be determined by analogy to them”.

[10] The plaintiff submits that Rule 1.04(2) is a ‘saving provision’, there to cure irregularities or to address non-compliance with issues of minor importance. Further, the plaintiff asserts that where issues of policy are in question, those should be addressed by the Rules Committee and not by the courts.

[11] The plaintiff relies on Kitely, J’s 1996 decision in Kellogg Co. v. Imperial Oil Ltd. 1996 CanLII 7997 (ON SC), [1996] 29 O.R.(3d) 70, (not considered by Justice Lauwers in the Davies case, supra), where she considered an appeal from an Order of a Senior Master regarding, inter alia, production of documents. She stated at para 48:

There is no obligation on the party producing the documents to translate into English; that will be the responsibility of the party who leads the evidence at trial.

[12] In Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd., 2011 ABQB 794, the Alberta Court of Appeal considered Kellogg. The court noted that Kitely, J. refused to produce marginally relevant documents. The translation issue in Kellogg was therefore obiter.

[13] In Tube-Mac Industries Ltd. v. Ratos AB [2007] OJ no 2763, Master Glustein, as he then was, considered the issue of whether plaintiff’s counsel should be compelled to proceed with discoveries within two weeks after the defendants delivered an affidavit of documents which included foreign-language documents. In order to proceed with the discoveries immediately, the defendants offered an informal translation. (The court did not consider which party should be required to incur the costs for the translation.) Master Glustein clearly acknowledged the need for translation in advance of examinations for discovery.

[14] In this case, the evidence is silent as to whether an informal translation by plaintiff’s counsel or their representatives exists but plaintiff’s counsel has refused to provide one. The evidence is silent on how plaintiff’s counsel intends to prepare the client for oral examinations. When questioned, plaintiff’s counsel advised that counsel who will conduct the examination has no German knowledge and upon that counsel’s instruction, the client reviewed and produced all relevant documentation which now forms Schedule “A’ of the plaintiff’s Affidavit of Documents. Counsel on the motion confirmed that counsel conducting the examination will meet with the client in order to be provided with an explanation or an informal or formal translation of all of the plaintiff’s German-language documents in order to be prepared to attend with the client at the examination for discovery.

[15] I accept Lauwers, J’s reasoning. Practical analogies are to be drawn within our Rules. In keeping with Rule 1.04 which encourages the just, most expeditious and economic resolution, it would certainly appear, and common sense dictates, that defence counsel should be provided with a translation. Given that plaintiff’s counsel does not understand the documents contained in his client’s Affidavit of Documents, and given that he himself is going to require a translation of some sort in order to attend at his client’s examination for discovery, the defendants are entitled to understand the case they have to meet and in practical terms that requires that they receive translated documents. Further, by providing the translation, the parties are on a more level playing field.

[16] Having determined that the producing party does have an obligation to provide a translation at the discovery stage, the issue of proportionality must then be canvassed. The issue of conversancy of counsel in the language in question is in my view, one of the factors to be considered when looking at the issue of proportionality. Other factors would include the volume of documents to be translated and costs associated therewith, the parties, and the nature and amount in dispute. Here, the plaintiff has alleged fraud and conspiracy, claiming damages in the amount of $2.5 million plus punitive damages. The plaintiff is a large financial institution. Its employees appear to be conversant in English as well as German – in light of them following the (English-speaking) lawyer’s instructions to collate all relevant (English and German) documents for its Affidavit of Documents.

[17] The plaintiff submits that the proportionate, expeditious and least expensive approach is not to require the plaintiff to incur the significant cost of translating every document it produces. In my view, to require the defendants to proceed to examinations for discovery without an understanding of the documentation produced, and to attempt to conduct a proper examination would certainly elongate the discovery process. The result would be that there would be numerous undertakings that would have to be given, possible motions and ultimately a translation. Once plaintiff’s counsel here needs to have the documents translated for its own purposes, certainly it is appropriate to provide those translations to the defendants at this stage.

[18] According to the defendants, approximately 647 of the plaintiff’s documents are in German. 290 of those consist of emails which the defendants consider “key documents” to be translated. Further, several of the German-language emails produced by the plaintiff have been redacted. Without translations, the defendants cannot determine the context or reason for those redactions. The defendants should be entitled to conduct a complete oral examination which would include the defendants’ ability to challenge and question those redactions. (Most of the remaining documents are primarily numeric tables).

[19] The estimated cost of translating the German-language emails ranges between $9300 and $21,500. In an effort to reach the most ‘economic’ resolution, the plaintiff shall produce the informal or formal translations of the 290 German-language emails. Should the defendants require translation of any additional documents that have been produced or may be produced as relevant by the plaintiff, they too shall be produced at the plaintiff’s expense. The defendants shall within 14 days advise the plaintiff of any documents to be produced in addition to the 290 emails. Proportionality must be kept in mind and should the parties be unable to agree on those additional documents to be translated, they may request a case conference with me for assistance on that issue only.

[20] The parties exchanged costs outlines at the end of the hearing and they agreed to attempt to agree on the issue of costs within 30 days. In the event that they are unable to reach an agreement, the plaintiffs shall within 45 days serve and file brief (1 – 2 pages) costs submissions. The defendants shall respond with brief (1 – 2 pages) submissions within 15 days following receipt of the plaintiffs’ submissions. Any Reply requires leave of the Court.

(original signed)

MASTER RONNA M. BROTT

Date: November 16, 2016