COURT FILE NO.: CV-14-497479-00CP
DATE: 2019/10/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER SCOTT HARRIS
Plaintiff
- and -
BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.
Defendants
Margaret L. Waddell and Tina Q. Yang for the Plaintiff
Peter J. Pliszka and Kimberly E. Potter for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: October 10, 2019
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] Pursuant to the Class Proceedings Act, 1992,[^1] the Plaintiff, Peter Scott Harris, sues Bayerische Motoren Werke Aktiengesellschaft and BMW Canada Inc. (collectively “BMW”).
[2] Pursuant to rule 30.04 (2) of the Rules of Civil Procedure,[^2] Mr. Harris requests an Order that BMW produce the following documents referred to in BMW’s Fresh as Amended Statement of Defence:
The “communications with Transport Canada, relating to the power steering assist function in certain MINI Cooper Vehicles from the 2002 to the 2005 model years” referenced in paragraphs 15, 27 and 32;
The “internal quality control analyses and processes’ referenced at paragraph 15;
The “small number of consumer reports about the loss of power steering assist” referenced at paragraph 15;
The documentation by which BMW Canada Inc. contacted the registered owners/lessees of the vehicles in the date range referenced in paragraph 18 to inform them of the “matter” and to offer them the extended warranty coverage as referenced at paragraph 19;
The notice provided by the Defendants to the owners of the affected vehicles and to Transport Canada, as referenced at paragraph 26; and
The request made by the United States National Highway Traffic Safety Administration (“NHTSA”) for the Defendants [sic BMW of North America, LLC] to conduct a recall as referenced in paragraph 31.
[3] At the argument of the motion now before the court, Mr. Harris withdrew his requests that are numbered 4 and 5. He persists in his request for inspection of the documents mentioned in requests 1, 2, 3, and 6.
[4] For the reasons that follow, Mr. Harris’ motion is dismissed.
B. Procedural Background
[5] Mr. Harris was the owner of a 2003 MINI Cooper vehicle. In October 2010, while driving the vehicle its power steering malfunctioned and it was difficult to steer the vehicle. He became concerned about the vehicle's safety, and at his own expense, he replaced the power steering pump cooling fan at his local dealership.
[6] On January 30, 2014, Mr. Harris commenced a proposed class action against BMW by notice of action. The action is on behalf of all persons or entities in Canada who are or were owners or lessees of certain MINI Cooper vehicles. Mr. Harris alleges that the vehicles contain defective power steering components, which can cause loss of power steering, and/or a car fire. The class definition is as follows:
All persons or entities in Canada who are or were owners or lessees of:
(i) a 2002, 2003, 2004, 2005 or 2006 model year MINI Cooper or MINI Cooper S; or
(ii) a 2005, 2006, 2007 or 2008 model year MINI Cooper Convertible or MINI Cooper S Convertible,
(collectively, the "Class Cars"), and their estates, executors, successors or assigns.
[7] On July 4, 2014, the Defendants filed a Statement of Defence. In its initial Statement of Defence, BMW pleaded that based on its own investigations there had been an extended warranty program introduced for the steering system and a voluntary recall program in the United States and it pleaded communications about these programs with Transport Canada and with the National Highway Traffic Safety Administration (“NHTSA”), the motor vehicle safety regulator in the United States. It denied that the steering system ever posed a danger.
[8] Mr. Harris did not file a Reply and the action languished for four years until the summer of 2018.
[9] On August 29, 2018, Mr. Harris delivered a Fresh as Amended Statement of Claim. In the Fresh as Amended Statement of Claim, Mr. Harris asserts rights of action in negligent design, testing, manufacture, distribution and sale, as well as a breach of the duty to warn of the dangerous power steering system defects.
[10] On December 4, 2018, Mr. Harris delivered his motion record for certification. The motion record included the Fresh as Amended Statement of Claim and BMW’s original Statement of Defence.
[11] The motion record for certification includes an affidavit from John-Otto Phillips dated November 23, 2018. Mr. Phillips is an associate lawyer with Waddell Phillips Professional Corporation, which, together with Podrebarac Barristers Professional Corporation, are Mr. Harris’ lawyers and proposed Class Counsel.
[12] On June 3, 2019 the Defendants served a responding motion record for the certification motion. That record included a Fresh as Amended Statement of Defence. It also included the affidavit of Mr. Gordon Farrish. Mr. Farrish is the Senior Safety and Environmental Compliance Manager of BMW Canada.
[13] In its Fresh as Amended Statement of Defence, BMW pleads that there was a possibility that some MINI Cooper vehicles, those falling within a circumscribed manufacturing date range, could potentially experience a loss of the power steering assist motion that would make the power steering unavailable. (Mr. Harris defines the affected vehicles more broadly.) BMW pleads, however, that the driver would be able to maintain steering control because the vehicle would revert to a manual steering mode. BMW denies that there is any fire risk or an unreasonable risk to safety.
[14] Mr. Harris did not deliver a Reply to the Fresh as Amended Statement of Defence. Instead, on June 26, 2019, he served a Request to Inspect Documents. The requested documents are set out in the introduction to these Reasons for Decision.
[15] On July 21, 2019, when all requests for documents were still being sought, BMW’s counsel sent the following email message to Mr. Harris’ counsel:
[…] Regarding your Request to Inspect, we are in the process of considering BMW's position. I note that most/all of the documents listed in your RTI [Request to Inspect] are referred to in a general and non-specific manner in BMW's statement of defence, and that non-specific document references of that type generally are not regarded as being subject to an RTI under Rule 30 (separate and apart from the other basic question about the necessity/appropriateness of a pleading-related RTI served in the context of a certification motion). In any event, we are continuing to duly consider your RTI, and we will advise you of BMW's position shortly.
[16] On July 23, 2019, Mr. Harris’ counsel sent the following email message to BMW’s counsel:
With respect to the request to inspect, it is irrelevant whether a document is named, or just referenced in a pleading. The documents are pleaded, and we are entitled to inspect them.
The context is not that of the pending certification motion, it is the context of being able to deliver a reply to your clients' defence and knowing the case that our client is facing in response to his claim. The time has long since expired for delivery of the documents. If they are not forthcoming by the end of the month, we will be bringing the appropriate motion to enforce.
[17] On August 1, 2019, BMW’s counsel sent the following email message to Mr. Harris’ counsel:
With respect, I believe your statement that "it is irrelevant whether a document is named or just referenced in a pleading" is inaccurate. Requests to inspect under Rule 30.04(2) are restricted to situations where the pleading (or affidavit) refers to a specific document; general references to non-specific documents do not give rise to a right to inspect under that rule. The items listed in your Request to Inspect are not specific documents stated in BMW's pleading. Rather, at most, some of them are references to non-specific documents (possibly; e.g., "communications", etc.), while some of the others are not even references to a document at all; e.g. item 4 (request for "documentation" relating to paragraphs 18 and 19 notwithstanding that the word, "documentation", does not appear in para. 18), item 2 ("internal quality control analyses and processes"), etc. Documentary production at the pleading stage of an action, or prior to the certification motion, is not permitted by either the Rules or the Class Proceedings Act. For these reasons, it is BMW's position that the Request to Inspect has no legal basis.
Beyond that, as a practical matter, I am also puzzled about why you are even taking our time up with this Request to Inspect; you already have many of the documents that you are asking BMW to produce - indeed, you have filed many of these documents as part of your own client's certification motion record.
For example, documents which would fall within the subject scope of item #1 of your RTI are attached as a series of 14 exhibits to the affidavit of John Otto Phillips, filling almost one entire volume of your 5-volume certification record. Similarly, Mr. Phillips' affidavit contains a number of documents spread across 9 exhibits which relate to communications with NHTSA and the recall that was conducted in the US in 2015, to which item #6 of your RTI refers. As a further example, Exhibit H to the affidavit of Gord Farrish in BMW's responding record for the certification motion, which was served upon you a couple of months ago, is a notification which relates to items #4 and #5 of your RTI. […]
[18] On August 6, 2019, Mr. Harris’ counsel sent the following email message to BMW’s counsel:
While I agree with the general proposition that if there is only reference to non-specific documents in a general way in a pleading, rather than specifically, rule 30.04(2) would not apply. However, none of the requested documents in the Request to Inspect fall into this category. In each instance, the request to inspect relates to actual documents, not generic, non-specific documents.
Clearly, your office and your clients assembled and made reference to these documents for the purposes of drafting the statement of defence. Your client has pleaded these documents as part of, and material to its defence to the claim.
If the documents are not produced, then the Plaintiff would be forced to simply deliver a blanket denial and would undoubtedly then have to be amended once the documents are produced on discovery. A bald denial does not assist in clarifying the lis between the parties.
Furthermore, with respect to your comments that many of the documents have already been produced, it is not the plaintiff's job to guess what documents that have been produced are responsive to the request to inspect, nor can he know if all the referenced documents are in his possession, or if some of the requested documents do not exist. Only your clients have this information. You have obviously gone to some trouble to cross-reference the motion records to the request to inspect. It would not be onerous for you to simply complete the process by responding to the request to inspect by referencing those documents which are responsive to the request by their location in the motion records. […]
[19] After BMW refused to produce the documents for inspection, Mr. Harris moved for an inspection order pursuant to rule 30.04 (2). Although his Notice of Motion also relies on rule 30.04 (5), at the argument of the motion, Mr. Harris insisted that his motion was just for compliance with rule 30.04 (2).
C. Factual Background
[20] The following factual background is largely taken from the Amended Statement of Claim and the Amended Statement of Defence.
[21] Bayerische Motoren Werke Aktiengesellschaft is a corporation incorporated under the laws of the Federal Republic of Germany. Its subsidiary BMW Canada Inc. sells MINI Cooper brand vehicles in Canada, and its subsidiary BMW of North America, LLC ("BMW-NW”) sells MINI Cooper vehicles in the United States.
[22] As noted above, Mr. Harris was the owner of a 2003 MINI Cooper vehicle. In October 2010, while driving the vehicle its power steering malfunctioned and it was difficult to steer the vehicle. He became concerned about the vehicle's safety, and at his own expense, he replaced the power steering pump cooling fan at his local dealership.
[23] Around this time, BMW was investigating the matter of the functionality of the power assist function in certain MINI Cooper vehicles. In paragraph 15 of the Fresh as Amended Statement of Defence, BMW pleads:
- In 2011 and 2012, BMW Canada engaged in communications with Transport Canada, the safety regulator of motor vehicles in Canada, relating to the power steering assist function in certain MINI Cooper vehicles from 2002 to 2005 model years. The matter which BMW Canada investigated related to the potential for some vehicles to possibly lose the power steering assist function. BMW Canada became aware of this through its internal quality control analyses and processes. BMW had received a small number of consumer reports about the loss of power steering assist. Only one report involved an alleged accident related to the loss power steering assist, and the alleged incident was minor in nature. Moreover, none of the reports involved any injuries or fatalities associated with the loss of power steering assist.
[24] Pausing here, it should be noted that communications between BMW Canada and Transport Canada are: (a) included in the Phillips affidavit delivered as part of the certification motion record as Exhibits "JJ", "KK" "LL", "MM","NN","00","PP","QQ", "SS","TT","UU" and "VV; and, (b) included in the Farrish affidavit delivered in response to the certification motion at Exhibits "A", "C", "D", "E" and "F".
[25] It should also be noted that the consumer report(s) referred to in paragraph 15 is Exhibit “KK” in the Phillips affidavit and Exhibit “A” in the Farrish affidavit. It is a letter from BMW Canada to Transport Canada dated August 17, 2011. The letter states:
Complaints
A total of 63 related customer complaints have been logged by BMW Canada Inc. Please refer to the attachment entitled "MINI Power Steering - Customer Contacts" which summarizes these complaints.
BMW Canada Inc. has received one reported customer complaint of an alleged minor accident related to the loss of power assist on a 2005 model year MINI Cooper. We are not aware of any injuries or fatalities associated with loss of power steering assist on a 2002-2005 MINI Cooper.
[26] Returning to the factual narrative, in 2012, BMW Canada gave notice to the affected car owners and implemented an extended warranty on the power steering pump and the pump cooling fan of 12 years or 200,000 kilometres from first in-service date of the vehicle. The warranty was extended because BMW Canada had determined that that there was a possibility that some MINI Cooper vehicles, those falling within a circumscribed manufacturing date range, could potentially experience a loss of the power steering assist motion that would make the power steering unavailable.
[27] In paragraphs 18, 19, 26, and 27 of the Fresh as Amended Statement of Defence, BMW pleads:
- BMW Canada determined that this condition potentially existed in some, but not all 2002-2005 Mini Cooper Hatch and MINI Cooper Convertible vehicles assembled during the following date range:
2002-2005 MINI Cooper Hatch, assembled December 17, 2001-February 9, 2005
2005 MINI Cooper Convertible, assembled February 19, 2004-February 9, 2005.
As a result of this investigation, BMW Canada initiated a consumer notification and special extended warranty program. BMW Canada contacted the registered owners/lessees of the vehicles in the above noted range to inform them of this matter and to offer the owners/lessees of the vehicles a special extended warranty coverage of 12 years of 200,000 km, whichever occurs first, and extended warranty program
Similarly, contrary to the allegations in paragraphs 41 to 44 of the Fresh as Amended Statement of Claim, the Defendants provided reasonable, appropriate and timely notice of the potential condition to owners of the affected vehicles as well as to Transport Canada.
BMW Canada was engaged in close communication with Transport Canada in relation to the development of its consumer notification and extended warranty program. BMW Canada provided the relevant data and facts in its possession to Transport Canada. Transport Canada never opposed BMW Canada’s plan to initiate the consumer notification and extended special warranty program. […]
[28] Pausing here, it should be noted that communications referred to in paragraphs 19, 26 and 27 of the Fresh as Amended Statement of Defence are included in (a) in the Phillips affidavit as Exhibits "SS", "TT", "UU", "VV" and "WW"; and, (b) in the Farrish Affidavit at Exhibits "A", "E", "F" "G", "H" and "I".
[29] Returning again to the narrative, in 2012, in the United States, BMW-NA also implemented an extended warranty program. The warranty was extended because BMW-NA had determined that there was a possibility that some MINI Cooper vehicles, those falling within a circumscribed manufacturing date range, could potentially experience a loss of the power steering assist motion that would make the power steering unavailable.
[30] In 2013, NHTSA found this response to be adequate.
[31] In paragraph 31 of its Fresh as Amended Statement of Defence, BMW pleads that NHTSA changed its position in 2015. Paragraph 31 states:
- Subsequently in 2015, NHTSA changed its mind about that matter and requested that BMW-NA conduct a recall of the vehicles to which the extended warranty program applied. In deference to NHTSA’s clearly expressed wish, BMWNA issued a recall of the said vehicles.
[32] Pausing here, it should be noted that NHTSA’s action is explained in its “Safety Recall Report”. The report appears on the NHTSA website and is Exhibit "CC" to the Phillips affidavit for the certification motion.
[33] In paragraph 32 of its Fresh as Amended Statement of Defence, BMW pleads that it advised Transport Canada of the recall in the United States. Paragraph 32 states:
- At that time, BMW Canada notified Transport Canada of BMW-NA’s voluntary recall of the said vehicles in the United States. BMW Canada communicated to Transport Canada that it remained of the view that there was no unreasonable risk to motor vehicle safety, and since BMW Canada had disseminated to potential affected vehicle owners/lessees notice of this matter in 2012, BMW Canada did not intend to change its existing approach for Canada. Transport Canada accepted BMW Canada’s explanation and approach.
[34] Pausing here, Mr. Farrish deposes that the communication referred to in paragraph 32 of the Fresh as Amended Statement of Defence was a telephone call.
[35] In December 2015, in the United States, BMW-NA issued a safety recall, No. lSV-660, for 86,018 vehicles bearing model year 2002-2005 MINI Cooper and MINI Cooper S vehicles (produced between September 2001 and February 2005) as well as model year 2005 MINI Cooper and MINI Cooper S Convertibles (produced between March 2004 and February 2005).
[36] The recall applied only to vehicles sold in the United States of America, and not in Canada. The basis for the recall was that the electro-hydraulic power steering system in the vehicles may experience temporary or permanent loss of the power steering assist function in vehicles that have not received an appropriate repair.
D. Discussion and Analysis
1. The Submissions of the Parties
[37] Mr. Harris submits that his requests for inspection numbered 1, 2, 3, and 6 are to inspect documents in BMW’s possession, power, or control that are referred to in BMW’s Fresh as Amended Statement of Defence. He submits that since the documents are referred to in BMW’s Fresh as Amended Statement of Defence, he has an absolute right to inspect to the documents. He submits that the references to the documents in the pleadings are specific because they are references to actual documents not generic documents. He submits that it is not pertinent to his request to inspect that he already has in his possession some of the documents referred to in the Fresh as Amended Statement of Defence.
[38] Although he submits that needing the documents in order to plead is not a precondition for inspection pursuant to rule 30.04 (2), he asserts that he is entitled to know the case he must meet before delivering a Reply and that if he does not inspect the documents, he will deliver an inadequate or insufficient Reply pleading and, therefore, production of the documents numbered 1, 2, 3, and 6 should be ordered.
[39] Mr. Harris also submits that the circumstance that his rule 30.04 (2) motion is made during the run-up to a certification motion is not pertinent to his right to obtain the inspection of any document referred to in BMW’s pleading. Mr. Harris submits that his procedural rights under rule 30.04 in this proposed class action are not affected by the circumstance that his action is a proposed class action with a certification motion pending.
[40] For its part, BMW submits that requests to inspect numbered 1, 2, 3, and 6 do not fit within rule 30.04 (2) because the requests concern non-specific documents. It submits that the requests to inspect documents numbered 1 and 2 do not come within rule 30.04 (2) because the requests do not concern documents at all. It submits that even if Mr. Harris’ requests numbered 1, 2, 3, and 6 are within rule 30.04 (2), the court nevertheless has discretion to refuse inspection and that it ought to exercise that discretion in the circumstances of the immediate case to dismiss Mr. Harris’ motion. BMW submits that Mr. Harris’ reliance on rule 30.04 (2) cannot and should not be divorced from the context that there is a pending certification motion and that what he is doing is circumventing the principle that pre-certification, document discovery should not be permitted save for discovery connected to the certification motion.
2. Legal Background
[41] For the purposes of Mr. Harris’ motion to inspect documents, the relevant rule is rule 30.04, which states:
INSPECTION OF DOCUMENTS
Request to Inspect
30.04 (1) A party who serves on another party a request to inspect documents (Form 30C) is entitled to inspect any document that is not privileged and that is referred to in the other party’s affidavit of documents as being in that party’s possession, control or power.
(2) A request to inspect documents may also be used to obtain the inspection of any document in another party’s possession, control or power that is referred to in the originating process, pleadings or an affidavit served by the other party.
(3) A party on whom a request to inspect documents is served shall forthwith inform the party making the request of a date within five days after the service of the request to inspect documents and of a time between 9:30 a.m. and 4:30 p.m. when the documents may be inspected at the office of the lawyer of the party served, or at some other convenient place, and shall at the time and place named make the documents available for inspection.
Documents to be Taken to Examination and Trial
(4) Unless the parties agree otherwise, all documents listed in a party’s affidavit of documents that are not privileged and all documents previously produced for inspection by the party shall, without notice, summons or order, be taken to and produced at,
(a) the examination for discovery of the party or of a person on behalf or in place of or in addition to the party; and
(b) the trial of the action.
Court may Order Production
(5) The court may at any time order production for inspection of documents that are not privileged and that are in the possession, control or power of a party.
Court may Inspect to Determine Claim of Privilege
(6) Where privilege is claimed for a document, the court may inspect the document to determine the validity of the claim.
Copying of Documents
(7) Where a document is produced for inspection, the party inspecting the document is entitled to make a copy of it at the party’s own expense, if it can be reproduced, unless the person having possession or control of or power over the document agrees to make a copy, in which case the person shall be reimbursed for the cost of making the copy.
Divided Disclosure or Production
(8) Where a document may become relevant only after the determination of an issue in the action and disclosure or production for inspection of the document before the issue is determined would seriously prejudice a party, the court on the party’s motion may grant leave to withhold disclosure or production until after the issue has been determined.
[42] A rule 30.04(2) request will be denied where the originating process, pleading, or affidavit does not refer to a specific document; general references to non-specific documents do not give rise to a right to inspect under the rule.[^3]
[43] Where the request to inspect a document is made before the close of pleadings, normally, production under rule 30.05 will not be ordered unless the court is satisfied that the document requested for inspection is essential to enable the party requesting the document to plead.[^4] However, it is not a precondition to an order for inspection based on rule 30.04 (2) that the document be required for pleading.[^5]
[44] Courts may refuse to enforce a request to inspect made pursuant to rules 30.04 (1) or 30.04 (2) by refusing to order the production of the document pursuant to rule 30.05 (5) based on immateriality, irrelevance, prejudicial effect overcoming probative value, disproportionality, untimeliness (i.e., premature documentary discovery), and privilege.[^6] Courts may refuse to enforce a request to inspect documents when the document requested is a public document or is a document already available to the party seeking production.[^7]
[45] In a proposed class actions, a request to inspect under rule 30.04 (5) may be denied unless the pre-certification disclosure can be justified for the purposes of the certification motion.[^8] In class actions in Ontario, courts limit or restrict pre-certification discovery and require the production of documents and examinations to be focused on the criteria for certification. The law in Ontario is that pre-certification, there should be a focused and limited production of those documents that are shown to be relevant to the issues on certification.[^9] The law in Ontario for pre-certification discovery is that the onus is on the party seeking documents for the certification motion to explain why the requested documents are relevant to the issues on certification. Pre-certification discovery is only available where the moving party shows that the discovery is necessary to inform the certification process.[^10]
[46] Pursuant to rule 30.04 (8), courts have the jurisdiction to postpone any inspection until a later state in the litigation, rule 30.04 (8).[^11]
[47] There is, however, a line of cases based on Timminco Ltd. v. Asensio,[^12] that hold that when a request to inspect documents is made pursuant to rule 30.04 (2) with respect to a document referred to in a pleading, compliance with the request is mandatory. This line of authority, however, is inconsistent with and has been rejected by the stronger line of authorities, including Court of Appeal and Divisional Court authorities, that explain that the court has a discretion to refuse to make an order under rule 30.04 (5) for a variety of reasons. Moreover, Timminco Ltd. v. Asensio was not a case about the court’s discretion to refuse to direct the production of a document referred to in a pleading; rather, it was a case that held that a party could not avoid its obligations under rule 30.04 (2) by the expedient of amending its pleading and purporting to withdraw the reference to the document.
3. Discussion and Analysis
[48] I disagree with Mr. Harris’ submissions and I agree with the submissions of BMW, and, therefore, I dismiss Mr. Harris’ motion.
[49] In the typical case where an appropriate request to inspect under rule 30.04 (2) is made, it might be said that compliance with the request is mandatory. However, in the typical case, compulsion may actually have little to do with the inspection of the document, because in the typical case, the party who made reference to a specific document in his and her pleading may have no reason to refuse producing the document for inspection and he or she might just as easily be said to be happy and even eager to produce the document voluntarily.
[50] In the typical case where an appropriate request to inspect a document is made under 30.04 (2), it may or may not be the case that disclosure of the document is required in order for a party defendant to plead its defence or for a party plaintiff to plead a reply and thus it is true that an inability to plead is not a prerequisite to resort to rule 30.04 (5) for a court order that the document be produced. Where disclosure of the document is needed in order to plead that would, however, justify a production order. In the immediate case, there is no basis for concluding that Mr. Harris needs answers to requests 1, 2, 3, and 6 in order to plead his Reply.
[51] The case at bar is not the typical case where an appropriate request to inspect has been made under rule 30.04 (2), and, in the case at bar, BMW has numerous legitimate reasons for not complying with Mr. Harris’ request.
[52] Mr. Harris’ request is not a proper one because requests numbered 1, 2, 3, and 6 are one or more of being: (a) improper requests for unspecified documents; or (b) improper requests for intangible things that are not documents; visualize: communications, analyses, or processes that have not been memorialized into a specific document that is referred to in the pleading.
[53] Mr. Harris is incorrect in asserting that the court has no discretion to deny his request to inspect made pursuant to rule 30.04 (2). The enforcement mechanism for a request under that rule is rule 30.04 (5), and a court may refuse to enforce a request to inspect made pursuant to 30.04 (2) by refusing to order the production of the document pursuant to rule 30.05 (5) based on immateriality, irrelevance, prejudicial effect overcoming probative value, disproportionality, untimeliness (i.e., premature documentary discovery), and privilege.
[54] In the immediate case, at this stage of the proceeding, I refuse to order production of the documents, if any, in requests 1, 2, 3, and 6 on the grounds of disproportionality and untimeliness (i.e., premature documentary discovery). In so far as there are genuine documents to respond to Mr. Harris’ request, he does not need them to plead and he does not need them pre-documentary or pre-oral examinations for discovery. His request for production of the documents is thus untimely.
[55] I disagree with Mr. Harris’ submission that I should ignore the circumstance that he already has in his possession many of the documents he wants to inspect. And I also disagree with Mr. Harris that the circumstance that the action is a proposed class action is irrelevant to whether the court should order production pursuant to rule 30.05. Mr. Harris’ request fails to circumnavigate the principle that pre-certification for documentary discovery the onus is on the party seeking documents to explain why the requested documents are relevant to the issues on certification.
[56] On the topic of class proceedings, the case at bar is one of the still rare cases where the defendant delivers a statement of defence pre-certification. I remain of the view that it salutary and productive for the pleadings to be closed before the certification motion.[^13] The closing of the pleadings makes for a better focused and productive certification motion. In the immediate case, however, the efforts to close the pleadings should have been made before Mr. Harris delivered his motion material for the certification motion. Had that been done, the resort to rule 30.04 could have been gauged in its proper context. As it is, Mr. Harris’ request was not a proper request and it was not a necessary request in order for him to plead nor a request properly made in furtherance of his certification motion.
[57] BMW’s response to the Mr. Harris’ demand was appropriate, and Mr. Harris’ subsequent motion was not.
E. Conclusion
[58] For the above reasons, Mr. Harris’ motion is dismissed.
[59] If the parties cannot agree about the matter of costs, they may make submission in writing beginning with BMW’s submissions within twenty days of the release of these Reasons for Decision followed by Mr. Harris’ submissions within a further twenty days.
Perell, J.
Released: October 16, 2019
COURT FILE NO.: CV-14-497479-00CP
DATE: 2019/10/
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER SCOTT HARRIS
Plaintiff
- and -
BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: October 16, 2019
[^1]: S.O. 1992, c. 6. [^2]: R.R.O. 1990, Reg. 194. [^3]: William Day Construction Limited v Wilderness Helicopters (2009) Ltd., 2018 ONSC 2552 at para. 8 (Master); Wallbridge v Brunning, 2017 ONSC 6283 at para. 88; Mask v. Silvercorp Metals Inc., 2014 ONSC 4161 at para. 21, leave to appeal ref’d, 2014 ONSC 4647 (Div. Ct.); Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2011 ONSC 1133 at paras. 10-11, 20; Telus Communications Co. v. Kennedy, 2010 ONSC 2135 at para. 63 (Master); Kenning v. Odaguchi, [1992] O.J. No. 1416 (Master). [^4]: Janza v. Nicholson, 2014 ONSC 5588 at paras. 52-54; Meuwissen v. Strathroy Middlesex General Hospital (2006), 40 C.P.C. (6th) 6 at para. 6 (Ont. C.A.); HSBC Securities v. Davies, [2001] O.J. No. 3375 (Master); Stern v. Imasco Ltd., 1999 CanLII 14934 (ON SC), [1999] O.J. No. 4235 at para. 23 (S.C.J.); Hong Kong (Official Receiver) v. Wing, 1986 CanLII 2811 (ON SC), [1986] O.J. No. 1104 (H.C.J.); Durish v. Bent (1985), 4 C.P.C. (2d) 37 (Master). [^5]: Timminco Ltd. v. Asensio, 2009 CanLII 9431 (ON SC), [2009] O.J. No. 906, 95 O.R. (3d) 547 at para. 18 (Ont. S.C.J.); 1483881 Ontario Inc. v. KPMG, LLP, [2003] O.J. No. 2993 at para. 7 (Ont. Master). [^6]: Wallbridge v Brunning, 2017 ONSC 6283; Mask v. Silvercorp Metals Inc., 2014 ONSC 4161 at para. 21, leave to appeal ref’s (2014), 2014 ONSC 4647 (Div. Ct.); 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2013 ONSC 2548, [2013] O.J. No. 2490 at paras. 103-104 (S.C.J.); 1483860 Ontario Inc. v. Beaudoin, 2010 ONSC 6294, [2010] O.J. No. 5315 at paras. 73-75, 101, 106-107, 111 (Master). [^7]: Wallbridge v Brunning, 2017 ONSC 6283 [^8]: Mask v. Silvercorp Metals Inc., 2014 ONSC 4161 at para. 21, leave to appeal ref’d (2014), 2014 ONSC 4647 (Div. Ct.); Stern v. Imasco Ltd., 1999 CanLII 14934 (ON SC), [1999] O.J. No. 4235 at para. 27-29(S.C.J.); Matthews v. Servier Canada Inc., 1999 CanLII 5900 (BC SC), [1999] B.C.J. No. 435 at paras. 5-6 (B.C. S.C.). [^9]: Kaplan v. Casino Rama Services Inc, 2018 ONSC 3545 at paras.34-36; Mancinelli v. Royal Bank of Canada, 2017 ONSC 87 at para. 41; Brown v. Janssen Inc., 2015 ONSC 1434; Dine v. Biomet Inc., 2015 ONSC 1911; Batten v. Boehringer Ingelheim (Canada) Ltd., 2015 ONSC 7821. [^10]: Mancinelli v. Royal Bank of Canada, 2017 ONSC 87 at para. 41; Tetefsky v. General Motors Corp., 2010 ONSC 1675, affd [2011] O.J. No. 1390 (C.A.). [^11]: Mask v. Silvercorp Metals Inc., 2014 ONSC 4161 at para. 21, leave to appeal ref’d (2014), 2014 ONSC 4647 (Div. Ct.); 1483881 Ontario Inc. (c.o.b. EPM) v. KPMG, LLP, [2003] O.J. No. 2993 at paras. 10-12 (Master) [^12]: 2009 CanLII 9431 (ON SC), [2009] O.J. No. 906 (S.C.J.); D'Aguanno v. VIPR Industries Inc., 2010 ONSC 3369 (Master); 1483881 Ontario Inc. (c.o.b. EPM) v. KPMG, LLP, [2003] O.J. No. 2993 at para. 6 (Master). [^13]: Sharma v. Timminco Ltd., 2010 ONSC 790, [2010] O.J. No. 469 (S.C.J.)