Dickinson v. O’Reilly, 2017 ONSC 5113

CITATION: Dickinson v O’Reilly, 2017 ONSC 5113

COURT FILE NO.: 14-264

DATE: August 28, 2017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dickinson v. O’Reilly

BETWEEN: Michael Dickinson, Christine Jagger, Plaintiffs and Shaun O’Reilly, S.D. O’Reilly Barry’s Bay Limited o/a O’Reilly Funeral Home, Defendants

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Claudius Croiset Van Uchelen for the Plaintiffs, Moving Parties

M. Peter Sammon for the Defendants, Respondents

ENDORSEMENT

1The defendant brings this motion for an order requiring the plaintiffs to provide copies of the documents filed in Schedule A of their Affidavit of Documents.

2Such motions are rare because the exchange of documents is usually a simple and routine procedure. The moving party contends that rule 30.04(1) ought not to apply because in practice the documents listed in the Affidavit of Documents are usually attached to the affidavit and delivered at the same time. This may be the case in simple lawsuits that do not involve many documents but in most litigation, except for the most uncomplicated type of case, opposing counsel usually requests the copies of the documents he or she requires.

3The simple reason for this is that many documents are in the possession of both sides and a request for additional copies involves incurring unnecessary expense. Also, often not all documents listed in Schedule A are relevant and need to be produced.

4Here it appears that counsel for the moving party “jumped the gun” and sent an indignant letter on July 21, 2017 immediately after he received the Affidavit of Documents. This is not in accordance with good practice.

5Also, it is not clear to me why counsel for the respondents did not supply the requested documents and an account for copying charges within a reasonable time thereafter the request was made, despite its tone. It seems to me that if a lawyer truly wishes to keep a matter moving forward expeditiously, the other side should be given as few opportunities for delay as possible.

6I note that Justice McNamara made an endorsement on July 28th to the effect that “matters on track so far.”

7I note as well that Mr. Van Uchelen’s imperfect compliance with my previous endorsement has still not been corrected in that as of August 23rd there is still no sworn copy of his client’s initial responding affidavit filed with the court.

8Mr. Sammon contends that the real purpose underlying this motion is that the moving party needs more time to generate a further affidavit which was to be delivered on or before August 24th. If this is correct, it would help explain why the motion was made when its underpinnings were so fragile. Certainly Mr. Van Uchelen has demonstrated his inability to meet timelines in the past.

9In any event, the time for delivery (which means serving and filing) of a further affidavit is extended to September 5th, 2017. A sworn copy of the earlier responding affidavit should be filed by that date as well. The cross-examinations have now been postponed for the second time and shall take place at Mr. Sammon’s office on September 26 and 27.

10The motion is dismissed. My preliminary inclination is that there should be no costs but if either side wishes to make written cost submissions, they may do so by September 5th, 2017.

11The defendants’ summary judgment motion shall proceed on a date to be set by the trial coordinator in consultation with counsel.

James, J.

DATE: August 28, 2017

CITATION: Dickinson v O’Reilly, 2017 ONSC 5113

COURT FILE NO.: 14-264

DATE: August 28, 2017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dickinson v O’Reilly