Court File and Parties

COURT FILE NO.: CV-19-00000207-00SR DATE: 2020 Jan 16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Karren Seifert, Plaintiff (Responding Party) AND: Finkle Electric Ltd., Defendant (Moving Party)

BEFORE: Honourable Madam Justice Helen MacLeod-Beliveau

COUNSEL: Mr. Robert J. Reynolds for the Defendant (Moving Party) Mr. Ammar Hussein for the Plaintiff (Responding Party)

HEARD: January 14, 2020

Endorsement

[1] This is a motion brought by the defendant (Finkle) to require the plaintiff (Seifert) to deliver a further and better affidavit of documents containing a proper Schedule A, listing documents individually, and assigning a unique number to each so that they can be separately identified. Specifically, Finkle seeks an order that the listing of files of documents under one item, even though numbered, in Seifert’s Schedule A of her affidavit of documents not be permitted. Finkle further seeks an order that the examinations for discovery currently scheduled for February 4, 2020 be postponed to allow Seifert’s further and better affidavit to be served, and for costs.

The Issue:

[2] The issue for determination is if Seifert’s Schedule A of the affidavit of documents is sufficient and in compliance with the Rules.

Result:

[3] The motion is granted. Seifert shall serve a further and better affidavit of documents in relation to Items # 1, 2, 3, 4, 14, 36, 45, 48, 49, 50 and 53 of Schedule A of her affidavit of documents on or before February 28, 2020, listing and identifying documents individually within each Item #, and assigning a unique number, so that they can be separately identified. Specifically, the listing of files, collections of documents or bundles of documents under one item, even though page numbered, is not sufficient to be in compliance with Rule 30.03 (2) of the Rules of Civil Procedure.

[4] The examinations for discovery on February 4, 2020 shall be postponed and not take place before March 31, 2020 unless counsel agree otherwise.

[5] Costs are reserved.

Background Facts and Analysis:

[6] Seifert commenced her claim for wrongful dismissal from Finkle on May 8, 2019 claiming damages for wrongful and/or constructive dismissal and other relief.

[7] Finkle’s position is that Seifert’s Schedule A of the affidavit of documents fails to individually list and identify each document, but rather lists a large collection of documents under one item. The disputed items are # 1, 2, 3, 4, 14, 36, 45, 48, 49, 50 and 53, some of which cover multiple-year time frames. All pages within each collection of documents in each item have been page numbered.

[8] For example: a. Tab 1. Document Description - CIBC Disability or Job Loss claim forms. Date – Various”; b. Tab 2. Document Description – Client provided file to Bonn Law containing various records. Date – Various”; c. Tab 14. Document Description – Karren Seifert’s Employment Insurance File. Date – January 1, 2014 to May 25, 2018; d. Tab 36. Document Description – Income Tax Records. Date – 2012 to 2017; and e. Tab 48. Document Description – Client Provided medical records. Date – January 16, 2015 to December 9, 2017.

[9] Siefert’s position is that Schedule A of the affidavit of documents is properly done, is in accordance with the Rules, and its form properly reflects the principles of proportionality in this case.

[10] Both counsel rely on essentially the same case law to support their opposite positions.

[11] I do not accept Seifert’s position as stated and argued before me, that the method of identification and numbering of documents in Schedule A used is sufficient to be in compliance with Rule 30.03 (2) of the Rules of Civil Procedure. I do not accept Seifert’s counsel’s interpretation of the case law that, in essence, page numbering is sufficient as an identifier of a document within a given group or collection of documents. Many of these document collections are within the range of 100 pages.

[12] I agree with Finkle’s counsel that the leading Ontario authorities establish the principle that Schedule A of an affidavit of documents must list documents individually, assigning a unique number to each, so that the document can be separately identified. What’s missing in this case is the individual identifier of the document. This means more than a page number within a collection or file is required. Listing a whole collection or file, such as Seifert’s personal “Finkle Employment File – up to November 27, 2017” is not sufficient even if each page within that collection or file is numbered. (See Solid Waste Reclamation Inc. vs. Philip enterprises Inc., [1991] O.J. No. 213 (Ontario Court of Justice -General Division) Lane, J. at paras 5-18)

[13] The principles in Solid Waste have been consistently followed in Ontario. The opposing party does not have to comb through a collection of documents or file referred to, to identify individual documents within the collection or file of the opposite party. Numbering the pages within the listed collection of documents or file fails to provide a sufficient identifier of the individual documents contained within the collection or file. (See also Mirra v. Toronto Dominion Bank, [2002] O.J. 1483 (Ontario Court of Justice) Master C. MacLeod)

[14] Justice Lane clearly held in Solid Waste that in that case Schedule A to the affidavit of documents insufficiently identified those documents that were referred to as bundles, files or some other collective terms. This requires, I find, that in addition to page numbering, the individual documents within the collection of documents or file must be sufficiently and properly identified to meet the requirements of Rule 30.03 (2) of the Rules of Civil Procedure.

[15] The disagreement here is the level of detail and the method of identification required for individual documents within a collection of documents. The system used for document production in any case must accomplish the ability to: quickly access a document at discovery or trial; to relate each document to its reference in Schedule A; to ensure a tendered exhibit was in fact a document listed and produced in Schedule A; be computer compatible if appropriate; and to ensure additional and all copies of the document have the same identifier. Page numbering within a collection of documents or a file, in and of itself, I find, is insufficient as an identifier of an individual document within that collection or file. Of note, Finkle’s Schedule A of its affidavit of documents follows the proper and preferred format.

[16] I find that Siefert’s Schedule A of the affidavit of documents is not in compliance with Rule 30.03 (2) of the Rules of Civil Procedure. Requiring Seifert to do this work will ultimately save legal and court time. I further find that the work required by Seifert to bring Schedule A into compliance with the Rule is not so voluminous or onerous to bring the principles or proportionality into play on the facts of this case. The burden to identify a document relied upon in litigation is on the party producing the document.

Order Made:

[17] The motion is granted. Seifert shall serve a further and better affidavit of documents in accordance with these reasons in relation to Items # 1, 2, 3, 4, 14, 36, 45, 48, 49, 50 and 53 of Schedule A of the affidavit of documents on or before February 28, 2020, listing and identifying documents individually within each Item #, and assigning a unique number, so that they can be separately identified. Specifically, the listing of files, collections of documents or bundles of documents under one item, even though page numbered, is not sufficient to be in compliance with Rule 30.03 (2) of the Rules of Civil Procedure.

[18] The examinations for discovery on February 4, 2020 shall be postponed and shall not take place before March 31, 2020 unless counsel agree otherwise.

[19] Costs are reserved. If counsel are unable to agree on costs, counsel for Finkle shall have until January 27, 2020 to file submissions on costs. Counsel for Seifert shall have until February 3, 2020 to file responding submissions on costs. Counsel for Finkle shall have until February 7, 2020 to file reply submissions on costs if any. After February 7, 2020, the issue of costs will be determined by me based upon the material filed.

MacLeod-Beliveau J. Date: January 16, 2020