Court File and Parties

Court File No.: 14-62531 Date: 2017/05/16 Superior Court of Justice - Ontario

Re: Fabiola Ferro, Applicant And Sylvain Chicoine, Respondent

Before: Justice Marc R. Labrosse

Counsel: Andrew Lister and Samara Belitzky, Counsel, for the Applicant Alexander H. Duggan, Counsel, for the Respondent

Heard: May 12, 2017

Endorsement on Motion

Background

[1] The Plaintiff brings this motion to amend the timetable and to require the Defendant to provide a further and better Affidavit of Documents.

[2] The Defendant seeks to dismiss the motion as the requirements for a further and better affidavit of documents are not met. Further, there are issues of proportionality in this litigation which would make it unfair for the Defendant to be required to provide a synopsis for every document listed in Schedule A as there are well over 300 documents. The Defendant states that in all the circumstances, it would be most efficient to simply allow the parties to proceed to examinations for discovery and get on with the litigation.

[3] Finally, the Defendant states that he has in fact made extensive efforts and inquiries to ensure all relevant documents have been disclosed, and there exists no evidence to the contrary. However, the Defendant provided no evidence in the context of this motion to support this contention.

Analysis

[4] Rule 30.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires a party to an action to serve on every other party an affidavit of documents which lists and describes all documents relevant to any matter in issue in the action. This rule refers specifically to the form of Affidavit of Documents provided in Form 30A.

[5] Form 30A then provides for the different schedules and each requires that the party provide: the nature and date of the document and other particulars sufficient to identify it. Under Schedule B – there is the additional requirement of stating the grounds for claiming privilege for each document.

[6] I have reviewed the affidavits of documents provided by each party. The Defendant has not in my view served an Affidavit of Documents which complies with Rule 30.03. As for the Plaintiff, the original Affidavit of Document did not in my mind comply with the Schedule B requirements. It is unclear at this point if the Plaintiff has other documents to list in Schedule B however I agree with the Plaintiff’s counsel that every informal communication between a party and their counsel need not be listed. However, documents created such as opinion letters, memoranda or reports generated during the litigation should be listed. It is not sufficient to simply list the boilerplate “all communications between the client and counsel” or “all documents prepared for litigation purposes”. There must be sufficient detail to allow the opposing party to understand the nature of the document and the reason for which privilege is claimed.

[7] When considering the affidavit of documents of the defendant, Schedule A does not contain particulars sufficient to identify almost any of the documents. A brief description of the nature of the document must be provided. Clearly, a synopsis of the document is not required but some form of a brief description for each document is required. However particularly in a situation where the documents are not provided with the Affidavit of Documents, some particulars of each document are necessary to determine if a copy may be required or if it requires specific inspection.

[8] Finally, I agree with Counsel for the Plaintiff that there should be no references to Offers to settle in the description of a document. The mere fact that an Offer to settle was made should not be part of the court file until the end of the trial or a specific proceeding within an action.

[9] As for Schedule C, I do not believe that any further detail is required on the documents which are no longer in the possession of the parties. However, I note that the Defendant is clearly on notice of the type of document that the Plaintiff is seeking. The Defendant should be in a position to answer as to the efforts he has or will be making to obtain those documents which are properly relevant to the litigation.

[10] This is not a circumstance of making an order for a further and better affidavit under Rule 30.06 date to cure an omission or wrongful claim of privilege although it could be argued that the documents under Schedule B have been omitted. It is simply an order to require compliance with Rule 30.03 to provide an Affidavit of Documents which meets the requirements of Rule 30.03.

[11] In the end, the Defendant is ordered to serve an Affidavit of Documents which complies with Rule 30.03 and form 30A. The Plaintiff will again review her Schedule B to ensure that each document contemplated under the rules is listed, described and for which the claim for privilege is indicated.

[12] As for the documents contemplated by Schedule C, I will be available to hear any necessary motion to seek the production of records from the NDP party. While I caution the parties with respect to which Parliamentary Privilege is being claimed. While no specific relief has been sought in this motion for documents which are now under the control of the NDP Party, the Plaintiff will be expected to communicate in writing with the NDP party, advise them of this ongoing litigation and request copies of the relevant documents.

[13] I will make myself available to hear any motion arising from examinations for discovery and other production issues.

Amendment of the Timetable

[14] As a result of my conclusion on the affidavits of documents, there are clearly good reasons to amend the litigation timetable. I thus make the following order:

(a) the Defendant will serve his amended Affidavit of Documents on or before May 31, 2017. In the event the Plaintiff must update her Affidavit of Documents, it shall also be done on or before May 31, 2017; (b) the parties shall provide photocopies of requested documents on or before June 30, 2017 provided the request for documents has been provided at least seven days in advance; (c) the parties shall complete all examinations for discover by no later than July 31, 2017; (d) all undertakings given during examinations for discover will be answered by no later than August 29, 2017; (e) any motion arising out of examinations for discover, or the failure to fulfill undertakings or provide a position on advisements, will be heard no later than October 31, 2017, subject to the reasonable availability of motion dates; and (f) either party may request a pretrial based on this litigation schedule no earlier than November 30, 2017.

Costs

[15] While the Plaintiff has also been ordered to review her Schedule B, I conclude that the Plaintiff is entitled to her costs of this motion on a partial indemnity basis. If the parties are unable to agree, they may each submit costs submissions in writing within 15 days of the delivery of this Endorsement.

Justice Marc R. Labrosse Released: 2017/05/16