Court File and Parties

COURT FILE NO.: 2442/14 and 2982/14 DATE: 20170712 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S. A. Thomas Contracting Inc. Steven Thomas and Patrice Thomas (Applicants) AND: Dyna-Build Construction Inc., S. A. Thomas Dyna-Build Inc., S. A. Thomas Dyna Build (Cambridge) Inc., 1865450 Ontario Inc., David Thomas and Debra Thomas (Respondents)

AND BETWEEN:

RE: Dyna-Build Construction Inc., S. A. Thomas Dyna-Build Inc., S. A. Thomas Dyna Build (Cambridge) Inc., 1865450 Ontario Inc., David Thomas and Debra Thomas (Applicants) AND: S. A. Thomas Contracting Inc., Steven Thomas and Patrice Thomas (Respondents)

BEFORE: Justice H. A. Rady

COUNSEL: Robert Haas, Counsel, for the Applicants/Respondents Cole Vegso, Counsel, for the Respondent/Applicant

HEARD: July 5, 2017

Endorsement

[1] The parties return to court seeking yet more production. The first such motion was heard by Justice Raikes on October 14, 2015. On November 20, 2015, he released a lengthy endorsement setting out in considerable detail both the factual and procedural history of the two applications. He made orders respecting productions. In doing so, he placed particular emphasis on the need for proportionality.

[2] He then set out a number of procedural orders at para. 54 of his decision to put the “proceedings on a better procedural foundation and to put the parties in a position where the trial … can proceed efficiently and effectively”.

[3] He ordered the exchange of pleadings; examinations for discovery were to be completed on or before February 28, 2016; and the matter was to be set down for trial by April 1, 2016.

[4] Remarkably, as far as I have been able to determine, the parties have not complied with the latter two orders. It is possible that they agreed to amend the timeline as permitted by Rule 3.04(1) of the Rules of Civil Procedure. However, Rule 3.04(3) prohibits an agreement to amend a timetable that stipulates when a matter is to be set down. It does not appear that the parties sought a court order seeking relief from that provision of Justice Raikes’ order.

[5] Clearly, the parties have ignored Justice Raikes’ procedural order. It should go without saying that a court order is not a suggestion. Furthermore, the parties obviously have paid little or no heed to the last paragraph of his costs endorsement in which he noted:

[7] I observe that the parties at this stage seem intent on accusing the other of wrongdoing to justify actions taken by each. The result of that approach is an escalating war through litigation where, at the end of the day, someone or both will be the loser. On one level, they have already lost much. They are well-advised to try to find a bridge to resolution of the issues before they spend more time, money and energy on a fight neither should want.

[6] The parties are no closer to a trial or resolution than they were in 2015. In fact, these proceedings started in January 2014. Yet, they ask the court to grant further relief notwithstanding their default and the delay that will inevitably follow.

[7] Counsel will undoubtedly be aware of the daunting challenges faced by the Superior Court following the decision in R. v. Jordan, 2016 SCC 27 and its imposition of timelines for the timely completion of criminal trials. There is also a pressing workload in London’s Unified Family Court. These kinds of motions and the failure to abide by court ordered timelines work an injustice to other parties who are compliant and ready for trial.

[8] I pause here to note that I was told during argument that production to date from the David parties totals in excess of 18 volumes of material, most of which is double sided – this in a dispute that counsel estimate to have a value of something less than $1 million.

[9] On this motion alone, the material included two motion records, one responding motion record, two reply motion records as well as facta and books of authorities from both sides.

[10] Rule 1.04(1.1) of the Rules of Civil Procedure places emphasis on the need for proportionality – proportionate to the importance and complexity of the issues and the value of the amount in dispute.

[11] This principle is reinforced in Rule 29.2 that speaks to proportionality in discovery – including documentary.

[12] Rules 29.2.03(1) and (2) provide:

29 .2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether, (a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be unjustified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (e) the information or the document is readily available to the party requesting it from another source.

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[13] In Hanson Estate v. Stollery Estate, 2017 ONSC 528, the court discussed proportionality. The Master made these observations, which I reproduce in part, notwithstanding the length because of their importance:

56 The proportionality principle's importance to the discovery process cannot be overstated. Indeed, the concept of proportionality is connected to all documentary production issues.

57 This requires a consideration of the factors listed in rule 29.1.03(3) of the Rules of Civil Procedure and The Sedona Canada Principles Addressing Electronic Discovery which were reflected in the new Rules .

58 In determining whether to order a party or another person to produce a document under those rules the court must consider the list of proportionality factors set out The Sedona Canada Principles. Principle 2, which I have endeavored to follow in this decision, states: In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court's adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.

59 Clearly the amendments to the rules resulted in the favouring of a less onerous and costly approach to discovery in which proportionality is the driving factor. For instance, in Foster v. Prince, [2012] O.J. No. 89 (Ont. Master) my colleague Master MacLeod, as he then was, discussing the permissible scope for examination for discovery, held that those amendments, including the "overriding principle of proportionality ", require "a more focused surgical approach to proportionality than was previously the case".

60 In my 2010 decision in Warman v. National Post Co., 2010 ONSC 3670, [2010] O.J. No. 3455 , 103 O.R. (3d) 174 , 77 C.C.L.T. (3d) 122 (Ont. Master) I confirmed the need to modify the previous broad and liberal rules of discovery: The time has come to recognize that the "broad and liberal" default rule of discovery has outlived its useful life . It has increasingly led to unacceptable delay and abuse. Proportionality by virtue of the recent revisions has become the governing rule . To the extent that there remains any doubt of the intention of the present rules I see no alternative but to be explicit. Proportionality must be seen to be the norm, not the exception - the starting point, rather than an afterthought . Proportionality guidelines are not simply "available". The "broad and liberal" standard should be abandoned in place of proportionality rules that make "relevancy" part of the test for permissible discovery, but not the starting point. [my emphasis added].

61 At the time I wrote the foregoing there was still a question in my mind as to whether proportionality was a "two-way street." If large sums were in play should greater discovery be granted? That question was answered by Justice Perell in his decision on the appeal of my decision in the Province's action seeking to recover health care expenses alleged to have resulted from tobacco products. In Ontario v. Rothmans Inc., 2011 ONSC 2504, [2011] O.J. No. 1896 (Ont. S.C.J.) , His Honour held that this is a principle of "frugality and parsimony" which is intended to enable the court to downsize the scope of documentary production and still do justice for the parties. Following extracts contain my added emphasis: The proportionality principle is a manifestation of the policy of frugality that led to the introduction of the simplified procedure to the Rules of Civil Procedure . To use a metaphor, the normal Rules of Civil Procedure are the Cadillac of procedure, an expensive vehicle with all the accessories. However, not all actions or applications require such an expensive vehicle, and a Chevrolet, a serviceable, no frills vehicle, will do just fine for many cases, and it will provide access to justice and judicial economy. In my opinion, an expansionary approach to proportionality is wrong. A parsimonious proportionality principle provides a useful tool for cases large and small. The base line is that the Rules of Civil Procedure are designed for cases of all sizes, but the proportionality principle allows the court to downsize the procedure and still do justice for the parties. If downsizing is not procedurally fair then the normal rules should apply to the proceedings without augmentation. If adopted as a precedent, the Master’s approach of treating proportionality as having an expansionary influence destroys the parsimony of the proportionality principle and allows the argument that because a case is important or the claim large, there should be more procedure, not less procedure.

62 Clearly Justice Perell confirmed his view that the intent of the rule changes was "to 'improve access to justice by reducing the inequities, cost, delay, and complexity of civil litigation." Similarly in Abrams v. Abrams, 2010 ONSC 2703 (Ont. S.C.J.), Justice D.M. Brown, observed: ' Proportionality signals that the old ways of litigating must give way to new ways which better achieve the general principle of securing the 'just, most expeditious and least expensive determination of every proceeding on its merits. [emphasis original]

[14] Those observations apply with equal force to this case. While undoubtedly important to the parties, the amount at stake simply does not justify the kind of wide ranging documentary production sought.

[15] The essence of these two applications concerns the conduct of the parties and whether one has acted in competition with the other. If a court found that to be so, it seems to me that the court might provide a remedy but for a discrete time period and not indefinitely into the future. As a result, I do not understand how the additional production primarily for records after the time of Justice Raikes’ order would be relevant or helpful. Moreover, I would have thought that the parties would be able to discern from the productions to date if there is evidence – for example, a pattern of financial dealings – that supports their respective positions.

[16] For these reasons, I decline to order the relief sought at this time, without prejudice to the parties to return once examinations for discovery are complete and an order pursuant to Rule 37.15 of the Rules of Civil Procedure has been sought. Any request must be considerably more refined, focused, clearly relevant to the issues and proportionate to the issues and amount at stake.

Justice H. A. Rady Date: July 12, 2017