Court File and Parties

Court File No.: CV-15-524612 (Toronto) Motion Heard: 2020 02 25

Superior Court of Justice - Ontario

Re: Concord Adex Inc., Concord Adex Properties Limited, C C Acquisition Corp., Concord Adex Investments Limited, Cityplace Developments Limited, Cityplace Developments Corp., Concord Adex Developments Corp. and Concord Panorama Limited

v.

20/20 Management Limited, Urban Renaissance Inc., Toni Varone, Arash Beheshti, Espedito Ariganello and Felice Mete

Before: Master R. A. Muir

Counsel: Junior Sirivar and Jacob Klugsberg for the plaintiffs Emilio Bisceglia for defendants 20/20 Management Limited, Urban Renaissance Inc., Toni Varone, Espedito Ariganello and Felice Mete Chris Trivisonno for the defendant Arash Beheshti

Reasons for Decision

[1] There are two motions before the court. The plaintiffs and the defendants 20/20 Management Limited, Urban Renaissance Inc., Toni Varone, Espedito Ariganello and Felice Mete have proposed competing discovery plans.

[2] The plaintiffs seek an order imposing their form of discovery plan in accordance with Rule 29.1.03 of the Rules of Civil Procedure, RRO 1990, Reg. 194. The plaintiffs also seek a timetable order.

[3] The parties have reached an agreement with respect to the timetable order to apply to this action and to a separate related proceeding.

[4] The defendants are opposed to an order imposing a discovery plan and specifically oppose the form proposed by the plaintiffs. In the alternative, the defendants submit that the court should establish a discovery plan in the form they have proposed and agreed to.

[5] All parties acknowledge that they are at an impasse at this point. It is therefore necessary for the court to provide direction in order to advance this claim, which was started nearly five years ago.

[6] The background facts giving rise to this action, and the various allegations made by the parties, are summarized in my decision on the plaintiffs’ 2017 motion for leave to amend their statement of claim. [1]

[7] Turning to the discovery plan issue, I agree with the observations of Justice Perell in Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2014 ONSC 660. In that decision, Justice Perell had the opportunity to address the proper approach the court should take when faced with a motion to impose a discovery plan. Paragraphs 84 to 89 of that decision read as follows:

84 Common sense and proportionality are the drivers. Common sense recognizes that the Discovery Plan is only a part of the pre-summary judgment or pre-trial procedures or steps of an action. Common sense says that while a Discovery Plan may avoid or reduce some of the controversies that may arise during oral examinations, a Discovery Plan is not meant to be some sort of advance ruling on the proper scope and propriety of the questions on the examinations for discovery nor is a Discovery Plan meant to take over the work that is more productively and efficiently done at the examination for discovery.

85 The Settling of a Discovery Plan is also not meant to be a speculative motion for a further and better affidavit of documents or a speculative anticipatory refusals and undertakings motion.

86 As for proportionality, the introduction of the Discovery Plan was part of what Justice Karakatsanis described in Hryniak v. Mauldin, 2014 SCC 7 as a movement to affect a culture change toward simplified and proportionate procedures that result in a just adjudication of disputes.

87 In Hryniak v. Mauldin, Justice Karakatsanis was discussing the test for summary judgment, but what she had to say is thematically applicable to the development and settling of a discovery plan. At paragraphs 27 and 28 of her judgment for the Supreme Court of Canada, she stated:

27.There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

28.This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible -- proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

88 Proportionality recognizes that perfection is the enemy of the good. Naturally enough, a litigant wants to know everything that might possibly be known to prove his or her case and a litigant wants to know everything about their opponent's case so as to not be taken by surprise and to be ready to disprove the opponent's case. But what a litigant wants is not necessarily what he or she needs, and the development and settling of a Discovery Plan should be approached by needs not wants.

89 And what goes for discovery and disclosure needs must be approached having regard to the proportionality principle that means that a litigant - and more precisely his or her advocate - must be re-cultured to accept that the adversary system needs far less in procedure than a perfectionist and sometimes obsessed advocate might wish for.

[8] The important principles that emerge from this decision, applicable to the motions before me, can be summarized as follows:

• Common sense and proportionality are the important considerations;
• The settling of a discovery plan is not meant to be a speculative motion on refusals or for a further and better affidavit of documents;
• A discovery plan is not meant to be a form of advance ruling on the scope and propriety of discovery questions; and,
• Proportionality and the litigation culture shift require “want” to be replaced with “need”.

[9] I have considered these principles in making my decision on these motions. In my view, the discovery plan proposed by the defendants is the preferable plan to be approved by the court in the circumstances of this action.

[10] The scope of production contemplated by the plaintiffs’ proposed discovery plan is extremely broad to say the least. For many categories of documents, the plaintiffs seek records from 2008 to the present when the relationships that gave rise to this proceeding only existed between 2010 and 2015 for most defendants and only until 2014 for Mr. Beheshti. The defendants’ proposed plan appropriately limits the time for production to the period between 2010 and 2014 or 2015, as the case may be.

[11] The categories of documents requested by the plaintiffs are so broad that the court can only conclude that little consideration was given to the important factors of common sense and proportionality. The plaintiffs’ document requests include 12 years of financial statements, personal tax returns, personal banking records, credit card statements, documents relating to the purchase and transfer of any property or vehicles, documents relating to vacations and social activities and copies of passports.

[12] In my view, the production contemplated by the plaintiffs’ proposed discovery plan is so broad and extensive that it cannot be considered a workable document in the circumstances of this action. It may be the production the plaintiffs want. It is not what they need.

[13] The development of a discovery plan is intended to be a collaborative exercise. It requires compromise. I agree that the defendants’ initial opposition to a discovery plan of any kind following the amendments to the pleadings was not helpful. However, the defendants modified their position in response to the plaintiffs’ demands and this motion. The latest version of the defendants’ discovery plan provides for significant but proportional production of broad categories of documents reasonably tailored and relevant to the key matters in issue in this action. Those categories of documents cover the important issues, including the formation of the agreements, the specific projects involved, the approval of work, invoicing and payment, the termination of the agreements and any investigations into the subject matter of the dispute.

[14] The defendants’ plan also covers an appropriate time period. It further provides for the delivery of supplementary affidavits of documents.

[15] On the other hand, it appears that the plaintiffs have not been willing to compromise on the contents of their proposed plan. It is essentially the same plan they proposed in September 2018, which was rejected by the defendants.

[16] It is also important to note that the defendants’ form of discovery plan allows the parties to reserve their rights to seek broader production at a later date. By agreeing to the defendants’ discovery plan, the parties would not be limiting their ultimate right to discovery or conceding relevance in any way.

[17] In my view, the discovery plan put forward by the plaintiffs in the circumstances of this action suggests an attempt to obtain the very kind of speculative advance ruling on scope and relevance discouraged by Justice Perell’s decision in Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund, cited above.

[18] I am therefore ordering that the parties adhere to the consent timetable orders signed by me. Discovery shall be conducted in accordance with the discovery plan at schedule A to the moving defendants’ amended notice of cross-motion dated February 19, 2020. This order shall apply to action no. CV-15-526661 (Toronto).

[19] If the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing by March 27, 2020. These costs submissions may be sent directly to me by email.

Master R. A. Muir

Date: 2020 02 26

Footnotes

[1] See Concord Adex Inc. v. 20/20 Management Limited, 2017 ONSC 6748.