Court File and Parties

Court File No.: CV-16-556960 Motion Heard: 2018-08-23 Superior Court of Justice - Ontario

Re: Maxi Boutique and 596856 Ontario Inc., Plaintiffs And: The Dominion of Canada General Insurance Company, St. Paul Fire and Marine Insurance Company and Travelers Insurance Company, Defendants

Before: Master P. T. Sugunasiri

Counsel: W. A. Chalmers, Counsel for the Plaintiffs/Moving Parties C. McKibbin, Counsel for the Defendants

Heard: August 23, 2018

Endorsement

[1] The Plaintiffs bring this motion to have the Court impose a discovery plan on the Defendants in the context of an insurance action. They seek damages for breach of contract in respect of a flood that occurred at their premises.

[2] Pleadings have been exchanged, as have discovery plans pursuant to Rule 29.1.03(1) of the Rules of Civil Procedure (“Rules”). The primary dispute is over the “scope of intended discovery” as contemplated by Rule 29.1.03(3). The Plaintiffs rely on the boiler-plate wording of Rule 30.03 to describe the scope of production for both parties. The Defendants use the boilerplate wording to describe the scope of their own disclosure but suggest a seven-page itemized list of documents required from the Plaintiffs.

[3] The Plaintiff also complains that the Defendants have made the provision of specific discovery dates contingent on the Plaintiffs’ compliance with the plan, and have refused to identify their deponent. At the hearing, the issue of the deponent was resolved by an admission by Mr. McKibbin that the Defendants’ deponent will be Ms. Spracklin.

[4] I have two options. I can step in and choose the preferred discovery plan, or I can send the parties back to the drawing board with some direction in the hopes that they could resolve the issues. The Plaintiffs urge me to choose their plan. The Defendants argue that the motion is premature and that the parties have yet to meet their obligations to broker a mutually acceptable plan. In their mind, I should send the parties back to the drawing board. If however I do choose to endorse one plan over the other, I should choose theirs.

[5] Based on the circumstances of this case, I order the parties to return to the drawing board. It is not in the interests of the parties or justice to have the Court sift through the categories of documents requested by the Defendants and determine, based on the pleadings, if they should be included in the Plaintiffs’ affidavit of documents. I am the furthest away from the litigation and the least qualified to make this assessment without input from the Plaintiffs who have refused to engage in that process.

[6] In my view, this is not the appropriate approach to discovery planning. The point of requiring parties to agree to a discovery plan is to discourage the historical murder mystery approach to litigation. The old approach to discovery was to meander through the plot with the hope of finding out “who dunnit.” The Rules change in 2010 reflects a cultural shift in which parties must think deeply about their cases early in the process with a view to having the most expeditious, cost-effective and efficient resolution of cases on their merits. The introduction of Rules 1.04 and Rule 29.1 are but two examples of this new approach.

[7] As such, it is not sufficient for a party to simply state in their discovery plan that they will produce what is relevant. In my view, Rule 29.1.03(3) requires something more. The extent of the detail and the nature of the categories of proposed disclosure will vary widely depending on the circumstances of the case. The parties are always in the best position to assess the scope of discovery and indeed have the primary responsibility of managing and defining it (see Dewan v. Burdet (In Trust), 2012 ONSC 4465 at para. 3).

[8] I note that my comments are not to be taken as suggesting that in every discovery plan parties MUST itemize every document they intend to produce or even every category of document. My only point is that the focus on access to justice mandated by the Supreme Court of Canada in Hyryniak v. Mauldin, 2014 SCC 7 and reflected in Rule 1.04 requires proportional, efficient and cost effective litigation. Those principles are not honoured if parties continue to rely on the boilerplate language of Rule 30.03 to describe their discovery obligations in a discovery plan. Rule 29.1 must be interpreted as a pro-active approach to discovery where the hard work is done at the beginning of the process to eliminate unbridled discovery and unnecessary motions at a later date. It may also facilitate early resolution of the case. At the very least parties must turn their minds to what types of documents they anticipate will be relevant to the litigation and discuss those categories with opposing counsel. Discussion, not acrimony, is the key to Rule 29.1.

[9] In that regard I adopt these observations of Master MacLeod (now Justice MacLeod) in 417 Infinity Nissan Limited v. Nissan Canada Inc., 2014 ONSC 3719 at paras. 44 and 45:

. . . . 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.

[10] In my view, the Plaintiffs have not yet taken this approach to the discovery plan and must do so before coming to the Court for assistance. It is impossible for me to know which of the proposed documents described by the Defendants are relevant, without input from the Plaintiffs. I add that it is also not appropriate for the Defendants to hold discovery dates hostage until the plan is complied with. In the normal course, a discovery plan should include, as required by the rule,

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.

[11] There may be instances when the parties choose to deviate from one or some of these requirements. There may even be instances (though not encouraged) when the boilerplate wording is best. However if a party is seeking the assistance of the Court, there must be some explanation as to the basis of the dispute over scope. In the present case, I have no helpful information as to why the categories suggested by the Defendants are improper and what the Plaintiffs suggest in the alternative. All that is before me is a blanket rejection of them and a preference to rely on boilerplate language.

[12] In these circumstances, I have no choice but to send the parties back to their negotiations of the discovery plan, with the following guidelines:

a. The Plaintiffs shall determine if any of the categories of documents suggested by the Defendants are relevant, viable, useful or otherwise helpful in advancing the litigation and the discovery process, with a view to having a mutually agreeable approach beyond boilerplate language. For example, given the nature of this claim, it is hard to imagine that there would not be at least a few categories of documents that the Plaintiffs could readily identify as relevant to their insurance claim. Again, the point of the exercise is to determine if the scope of documents can be streamlined at an early stage; b. The Defendants shall also turn their minds to any categorization or particularization of the documents that they propose to disclose; and c. The parties shall agree on dates for the exchange of Affidavits of Documents, and tentative Discovery dates for each deponent.

[13] If the parties are still unable to agree, they may convene a case conference with me by contacting my Assistant Trial Coordinator at Christine.Meditskos@ontario.ca. I sincerely hope that the Court’s assistance is not needed.

Costs

[14] The parties shall bear their own costs. Both sides have fallen short of the collaborative process required by Rule 29.1.

Master P.T. Sugunasiri Date: August 23, 2018