COURT FILE NO.: CV-16-333-00
DATE: 2021-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Scott Saxberg and Rachel Saxberg
J. Winter, for the Plaintiff (Moving Party)
Plaintiff (Moving Party)
- and -
Seargeant Picard Incorporated
A. Demeo, for the for the Defendant (Responding Party)
Defendant (Responding Party)
HEARD: via Zoom July 15, 2021, at Thunder Bay, Ontario
Madam Justice H. M Pierce
Reasons on Motion for a Further and Better Affidavit of Documents
Introduction
[1] This motion represents a clash of expectations between counsel that does not bode well for a trial where multiple documents will form the evidentiary record.
[2] The plaintiffs allege deficient construction of a home built under contract. The case has been pre-tried twice and is now ready to have a trial scheduled. Nevertheless, the defendant moves, pursuant to Rule 30.02 of the Rules of Civil Procedure, for a further and better affidavit of documents.
[3] In this case, the plaintiffs’ former counsel provided an incomplete and disorganized affidavit of documents in draft form that was sworn at examinations for discovery. Since they have been retained, present counsel for the plaintiffs have produced further documents, including four expert reports. However, they have not updated and served a sworn, amended affidavit of documents.
Discussion
[4] The defendant complains that:
The four expert reports produced by the plaintiffs are not listed in the affidavit of documents;
The sworn affidavit of documents is out of date; it does not list documents produced following examination for discovery or upon undertakings;
The plaintiffs have not itemized documents listed in Schedules “B” and “C”; they did not list privileged documents or documents no longer in their possession.
[5] Although not specifically referred to in argument, the defendant also complained that the plaintiffs’ documents were not listed in chronological order. The plaintiffs counter that the defendant did not organize its own productions to the high standard it demands of the plaintiffs.
[6] This case has clearly been complicated by the change in plaintiffs’ counsel: former counsel proceeded in one fashion, while current counsel proceeds in another. For example, the plaintiffs submit that their former counsel listed privileged documents in the first affidavit of documents which they did not itemize in their more recent draft affidavit of documents. They also submit that they have produced all relevant documents in keeping with their continuing obligation to disclose and have nothing further to produce. There is no evidence to the contrary.
[7] Rule 30.07 provides:
30.07 Where a party, after serving an affidavit of documents,
(a) comes into possession or control of or obtains power over a document that relates to a matter in issue in the action and that is not privileged; or
(b) discovers that the affidavit is inaccurate or incomplete, the party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents.
[8] The problem here is not one of the plaintiffs’ failure to disclose documents; rather it is their failure to document their disclosure of documents by delivering a sworn updated affidavit of documents. Litigation counsel are well-advised to add this rule to their check list of tasks to review before pretrial, so as not to get caught short at trial: see Rule 30.08(1)(a).
[9] While it may be good practice in some cases, Rule 30.03 does not require counsel to itemize their documents in chronological order.
[10] Order to issue requiring the plaintiffs to serve a sworn updated affidavit of documents pursuant to Rule 30.07, including all documents that have been produced, and documents required to be listed under Schedules “B” and “C.”
[11] This is not a case for substantial indemnity costs. It was a simple issue with simple filings. If the parties cannot agree on costs within thirty days of the release of these reasons, either may apply to the trial coordinator for a date to argue costs, failing which, costs will be deemed to be settled. Costs submissions are not to exceed five pages.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: July 23, 2021
COURT FILE NO.: CV-16-333-00
DATE: 2021-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Scott Saxberg and Rachel Saxberg
Plaintiff (Moving Party)
- and -
Seargeant Picard Incorporated
Defendant (Responding Party)
REASONS ON MOTION FOR A FURTHER AND BETTER AFFIDAVIT OF DOCUMENTS
Pierce J.
Released: July 23, 2021
/lvp