Superior Court of Justice - Ontario
COURT FILE NO.: CV-20-00003125-0000
DATE: 2023/02/13
RE: IAN ROOKE, Plaintiff
AND:
DELOITTE LLP, Defendant
BEFORE: Justice I.F. Leach
COUNSEL: Martha A. Cook, for the Plaintiff Greg McGinnis, for the Defendant
HEARD: February 6, 2023
ENDORSEMENT
[1] Before me is a motion, brought by the plaintiff in this wrongful dismissal litigation, seeking court ordered finalization of the discovery plan required by Rule 29.1.03 of the Rules of Civil Procedure.
[2] In support of their respective positions, the plaintiff filed a motion record and the defendant filed a responding motion record and factum.
Background
[3] The background to the motion may be summarized as follows:
a. The plaintiff commenced this action by issuing his statement of claim on September 22, 2020. Following the delivery of a statement of defence, the pleadings herein closed, pursuant to Rule 25.05(a), on or about November 5, 2020.
b. That same day, (i.e., November 5, 2020), plaintiff counsel wrote to defence counsel, providing the initial draft of a proposed discovery plan, and inviting review and comment on the draft. Plaintiff counsel, noting some of the broad requests effectively outlined in the draft, also inquired about the possibility of counsel meeting to “focus the exercise and maintain proportionality”.
c. Approximately two weeks later, (i.e., on November 22, 2020), defence counsel responded by way of an email acknowledging the plaintiff’s right “to insist on a discovery plan”, while indicating the existence of numerous but unidentified areas of disagreement in relation to items the discovery plan effectively was requesting. At the same time, defence counsel commented on the sometimes time-consuming nature of party negotiations in relation to discovery plans, noted the likelihood of possible complications associated with obtaining formal approval of a discovery plan from his client, (owing to its internal structure), and suggested that the parties instead proceed directly with the exchange of affidavits of documents in an effort to determine areas of alleged deficiencies requiring the need for possible court intervention. Defence counsel also invited immediate requests for production of any particular relevant documents the plaintiff required.
d. Plaintiff counsel responded the next day, (i.e., November 23, 2020), expressing a desire to adhere to the rule requirements relating to discovery plans, as plaintiff counsel felt that such plans were useful in helping parties with focusing or “scoping” their discovery efforts. At the same time, however, plaintiff counsel indicated a willingness to incorporate a measure of flexibility into the discovery plan to avoid “going down a rabbit hole”; i.e., by expressly identifying areas of disagreement, and any corresponding reservation of rights, to keep the matter moving forward. Later the same day, defence counsel sent a further email indicating general agreement with the approach being suggested.
e. Approximately one month later, (i.e., on December 4, 2020), defence counsel provided defence counsel with an electronic “mark up” version of the draft discovery plan; i.e., noting, on the face of the initial draft provided by plaintiff counsel, areas of disagreement and requested amendments.
f. Further progress towards finalization of the discovery plan, (and progress of the litigation more generally), then appears to have been delayed for an extended period of time. In particular, the next correspondence exchanged by counsel, in relation to finalization of the discovery plan, does not seem to have occurred until almost one year later; i.e., when plaintiff counsel delivered, on December 1, 2021, the draft of an amended discovery plan reflecting, (in part at least), the comments and concerns expressed in the previous correspondence sent by defence counsel. In particular, the amended discovery plan incorporated notations indicating areas where the defendant had expressed objections, described in such instances as a “DELOITTE RESERVATION” in relation to the scope of discovery desired by the plaintiff. I note that the relevant email correspondence from plaintiff counsel, providing defence counsel with a copy of the revised version of the discovery plan reflecting/incorporating the defendant’s expressed concerns, did not expressly request any further comment or approval from defence counsel in that regard. Nor did defence counsel ever communicate, at any point over the next 11-12 months, any objection to the amended version of the discovery plan provided by plaintiff counsel.
g. Moreover, the plaintiff clearly began taking concrete steps to move forward with the discovery process. In particular, on December 1, 2021, (i.e., at the same time the amended version of the discovery plan was delivered to defence counsel), plaintiff counsel delivered the plaintiff’s unsworn affidavit of documents, along with an indication that a sworn copy would follow shortly thereafter. That sworn copy of the plaintiff’s affidavit of documents was delivered on December 8, 2021, along with a request that the defendant provide its affidavit of documents by January 31, 2022, along with information concerning availability for oral discovery examinations in February, March or April of 2022.
h. Apart from some modest steps taken in mid-January of 2022 to address and satisfy a specific defence request for a copy of the employment agreement the plaintiff had with his new employer, progress of the formal litigation effectively then entered a further extended hiatus for much of the next 10-11 months, in large measure because the parties apparently were focused primarily on the possibility of settlement, (via the exchange of offers and proposals for mediation), and offer/counter-offer responses were delayed by plaintiff illness and the defendant’s internal consideration and approval procedures. In late September and early October of 2022, (i.e., on September 22 and October 11 of 2022), plaintiff counsel nevertheless began sending correspondence renewing her requests for delivery of the defendant’s affidavit of documents and the provisions of dates for oral discovery examinations, supplemented by a request for copies of the documents referred to in Schedule “A” to the defendant’s affidavit of documents.
i. I think an objective view of counsel correspondence reveals a significant shift in the tone of interactions in November of 2022, once settlement discussions effectively stalled; i.e., when offers put forward by each side had been rejected, and the plaintiff indicated an unwillingness to engage in mediation prior to the completion of discovery. Plaintiff counsel then began pressing in earnest for delivery of the defendant’s affidavit of documents, the affidavit’s productions, and a timetable to move the litigation forward. In that regard, I note in particular correspondence sent by plaintiff counsel to defence counsel on November 22, 2022, which included, (in addition to requests for the defendant’s affidavit of documents and productions), comments:
i. reminding defence counsel that plaintiff counsel had responded to defence counsel’s earlier correspondence regarding changes to the initially proposed discovery plan, and had incorporated them into a previously provided amended version of that discovery plan;
ii. asking defence counsel to advise how much additional time now was required by the defendant to prepare its affidavit of documents and productions, with a view to agreeing on a further discovery plan timetable; and
iii. providing another copy of “the Discovery Plan”, (i.e., the third version of the plan, prepared by plaintiff counsel), with a request that defence counsel provide a further “markup” of that version for plaintiff counsel’s consideration, so that the parties could “agree on a timetable and incorporate it into a further amended Discovery Plan”. [Emphasis added.]
j. In my view, a retrospective review of the overall circumstances, (including plaintiff counsel’s original insistence on establishing a discovery plan before embarking on discovery, the absence of any request by plaintiff counsel for any further comment or response in relation to the provision of the revised draft of the discovery plan reflecting/incorporating many if not most of the defendant’s expressed concerns about the initial draft, the plaintiff thereafter effectively embarking on implementation of the discovery process by delivery of his affidavit of documents and Schedule “A” productions while requesting those of the defendant, and the reference by plaintiff counsel to a “further amended Discovery Plan” in her email of November 22, 2022), strongly suggests a plaintiff understanding that the parties effectively had agreed on a discovery plan in early December of 2021. Whether the defendant shared that view is not altogether clear from the correspondence; e.g., insofar as not all of the defendant’s initially expressed concerns were reflected in the amended version of the discovery plan provided by plaintiff counsel. At the very least, however, the defendant expressed no objection to proceeding on the basis of that initially amended discovery plan, and the plaintiff and his counsel apparently did proceed on that basis.
k. However, that originally amended discovery plan obviously then was overtaken by the delays outlined above; e.g., with the dates and timelines set out therein becoming outdated, and plaintiff counsel, (noting that earlier requests for the defendant’s affidavit of documents and productions had been outstanding for almost one year), pressing for a “further amended” discovery plan to implement a new timetable.
l. Exception then was taken by defence counsel to the suggestion that the defendant alone had been responsible for delay. The situation thereafter seems to have quickly deteriorated, resulting in the current motion; i.e., with the plaintiff requesting an order striking out the defendant’s pleading and noting the defendant in default, or alternative relief setting a timetable for “completion of the remaining steps necessary to have the action set down for trial, peremptory on the defendant”. In response, the defendant filed a responding motion record and factum which, inter alia, provided further explanation for the delay, took issue with the content of the plaintiff’s proposed version of a further amended discovery plan, and submitted that the request for striking of the defendant’s pleading and default proceedings was completely inappropriate.
General principles
[4] General principles applicable to discovery plans and their content include the following:
a. Parties to an action are required to agree on a written discovery plan when either intends to obtain evidence pursuant to Rules 30, 31, 32, 33, 34 and/or 35 of the Rules of Civil Procedure.[^1]
b. That agreement must be reached within 60 days of the close of pleadings, (unless the parties agree to extend that deadline), or before any attempt to obtain such evidence; whichever date is earlier.[^2]
c. The consequences of failing to agree on a discovery plan can be significant. In particular, in relation to any motion concerning discovery pursuant to Rules 30 to 35 of the Rules of Civil Procedure, the court is expressly authorized to refuse relief and/or cost awards if the parties have failed to agree upon or update a discovery plan.[^3]
d. The discovery plan process is intended to be a collaborative one; i.e., with the parties making a genuine effort to resolve discovery plan issues before asking for the court’s assistance in imposing a discovery plan.[^4] However, where parties cannot agree on a discovery plan, the court will impose one.[^5]
e. The rules do not exhaustively dictate the precise form and/or content of required discovery plans. At a minimum, however, a discovery plan must include:
i. the intended scope of documentary discovery, taking into account relevance, costs and the importance and complexity of the issues in the particular action;
ii. the date for the service of each party’s affidavit of documents;
iii. information respecting the timing, costs and manner of the production of documents by the parties and any other persons;
iv. the names of persons intended to be produced for oral examination for discovery, and information respecting the timing and length of such examinations; and
v. any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action.[^6]
Application
[5] In my view, the plaintiff in this case was right in pressing for finalization of a discovery plan to the extent that could be agreed upon, and for an updated discovery plan that addressed the outdated aspects of the previously discussed version.
[6] Rule 29.1.01 may or may not be “more honoured in the breach than the observance” in certain regions of the province or areas of practice; e.g., because disputes regarding the nature and progress of discovery in a particular case seem unlikely, and/or because the scale of particular litigation and anticipated productions might make the costs associated with a discovery plan appear unnecessary and avoidable.
[7] However, Rule 29.1.01 obviously is a rule, and one that was introduced to address a clearly identified need. In particular, as emphasized in Lecompte Electric Inc. v. Doran, supra, Rule 29.1 resulted from the Discovery Task Force chaired by the Honourable Mr Justice Colin Campbell and the Civil Justice Reform Project chaired by the Honourable Coulter Osborne. Both studies concluded that discovery planning was an essential step in efficiently moving a dispute towards resolution, and that this in turn required not only a rule amendment but a “cultural shift” and the development of best practices.
[8] Litigation counsel accordingly should always turn their minds to formulation of a discovery plan, and certainly work cooperatively towards agreement on such a plan where the other side requests such cooperation.
[9] In my view, such cooperation on the part of the defendant in this case was lacking, or offered only grudgingly. In that regard, defence counsel might very well be correct in his assessment that active pursuit of the litigation at a sensitive stage in the negotiations hardened positions and unnecessarily increased costs, which in turn made the prospect of settlement more unlikely. However, it is also true that parties frequently and understandably are less inclined to settle without adequate discovery, (allowing them to determine whether particular settlement offers are reasonable and appropriate), and nothing seems to focus litigious minds on settlement quite like progress towards a court ordered resolution which may be less palatable than the one parties desire.
[10] On the whole, I agree with plaintiff counsel’s submission that it should not have required a motion to elicit, during the course of oral submissions before me, specifics of the defendant’s lingering concerns and objections to certain aspects of the further amended discovery plan attached as Schedule “A” to the plaintiff’s notice of motion.
[11] As for those specific concerns and objections, (defence counsel having indicated that the proposed further amended discovery plan set forth in that Schedule “A” was otherwise acceptable to the defendant), I make the following specific rulings:
a. Part 2 of the draft, providing a general outline of the “Legal Issues for Determination at Trial”, may and shall remain in the settled discovery plan, on the understanding that the precise issues to be addressed and resolved in the litigation, and the formal positions of the parties in that regard, are defined by the parties’ pleadings. While defence counsel correctly notes that Rule 29.1.03(3) does not require any statement of issues in a discovery plan, the content specifically addressed by that subrule is inclusive and not exhaustive. In my experience, the inclusion of such information in discovery plans is not only common, but promotes the intended goal of focusing party minds on the real focus of the litigation and the most efficient form of discovery to address that primary focus.
b. In relation to Part 3, dealing with “Scope of Documentary Discovery”, defence counsel submitted that paragraphs 9 and 10 thereof, (i.e., referring to the plaintiff’s intention to request production of pension and benefit statements for the period from 2018 until the date of the plaintiff’s termination, and the plaintiff’s time records for 2012-2020 and related client billings – with the latter sought initially only “in high level summary form” and the plaintiff reserving the right to seek production and disclosure of more particularized records), were overly broad having regard to the real nature of the parties’ dispute; i.e., the reasons for the plaintiff’s termination in 2020, (inherently focused on events more closely associated with the period of time more proximate to that termination), and the notice period and/or compensation extended voluntarily to the plaintiff. At first blush, I would be inclined to agree with that position, at least to some extent. However:
i. In my vie, discovery plans, (and, by extension, motions asking the court to impose discovery plans), were not intended to become a mechanism for simultaneously addressing and finally resolving, at the outset of litigation, all possible disputes that may crystallize in the course of planned discovery. Such an approach to discovery plans seems antithetical to the contemplated one, (i.e., of parties proceeding in collaboration), and something more likely to stall the progress of litigation at its outset. Deciding all such disputes at the outset of litigation, with minimal context, is also far from ideal.
ii. Such discovery plans instead were intended to move litigation forward in a more efficient and expedited way by focusing party minds on the proper scope of discovery; a process which includes identification of possible areas or lines of discovery that need not be explored, and areas or lines of discovery that definitely need to be explored, but also particular areas or lines of possible discovery in respect of which there are likely to be disputes, and which therefore demand greater party attention and ongoing reflection.
iii. I think it also needs to be borne in mind that identified areas or lines of discovery in respect of which there are likely to be disputes may, as the litigation progresses, resolve, narrow or become amenable to more targeted court resolution as the parties proceed with undisputed discovery that has been narrowed and streamlined by party agreement.
iv. For such reasons, I think the balance struck by plaintiff counsel’s approach in this case is a sensible one; i.e., documenting, in the discovery plan, a particular line, area or extent of discovery that one party contemplates pursuing, while simultaneously noting that the other party currently has reservations in that regard. (I note that defence counsel took no objection to that approach when it was suggested by plaintiff counsel in correspondence, or in relation to other paragraphs of the proposed “further amended discovery plan” wherein plaintiff counsel continued to note reservations the defendant had expressed earlier; i.e., via defence counsel’s provided “mark up” of the draft discovery plan initially provided by plaintiff counsel.) Through such an approach, the parties succeed in narrowing discovery, and focusing the attention of all concerned on areas of acknowledged relevance and likely disputes while moving the litigation forward; i.e., by essentially “agreeing to disagree” for the time being.
v. In relation to Part 3, paragraph 9, the proposed further amended discovery plan attached to the plaintiff’s notice of motion accordingly shall be amended so as to include the following bracketed wording in bold print: [DELOITTE RESERVATION: Such documents are not considered relevant to the alleged bases of defendant liability or quantification of the plaintiff’s damages.]
vi. In relation to Part 3, paragraph 10, the proposed further amended discovery plan attached to the plaintiff’s notice of motion accordingly shall be amended so as to include the following bracketed wording in bold print: [DELOITTE RESERVATION: The requested time frame for production of the plaintiff’s time records is too broad, but the defendant is willing to produce such time records for the years 2018, 2019 and 2020, being the more relevant period leading up to the plaintiff’s termination. The defendant will not voluntarily produce “related client billings”, in relation to any of the years noted in the plaintiff’s proposal, on the basis such documents are entirely irrelevant and/or call for disproportionate production.]
c. In relation to Part 3, paragraphs 14 and 15, (referring to the plaintiff’s intention to request production of all correspondence between the plaintiff and defendant about disability leave in 2015 and in 2019 respectively), defence counsel submitted, for reasons similar to those noted in relation to Part 3, paragraphs 9 and 10, that the request in relation to 2015 was overly broad, (insofar as temporal distance from the time of the plaintiff’s termination in 2020 diminished or eliminated the possible relevance of such documents), whereas limiting production to the year 2019 arguably was not broad enough. In particular, defence counsel submitted that the more appropriate period for production and disclosure of such correspondence would be for the years 2018, 2019 and 2020. For reasons similar to those set forth in the preceding sub-paragraph, in relation to part 3, paragraphs 14 and 16, the proposed further amended discovery plan attached to the plaintiff’s notice of motion accordingly shall be amended so as to include the following bracketed wording in bold print: [DELOITTE RESERVATION: the relevant time frame for the production of such correspondence should be 2018 to 2020, inclusive.]
d. In relation to Part 3, paragraphs 11-12 and 16-18, I confirm the indication made by defence counsel, during the course of oral submissions, that the existing form of those paragraphs in the proposed further amended discovery plan attached to the plaintiff’s notice of motion is satisfactory to the defendant.
e. In relation to Part 4, (addressing “Affidavits of Documents”), the defendant took issue with the suggested “Format for the schedules”, insofar as it contemplated the application of unique document identification numbers, dates, author information and descriptions to each document that would be produced. In particular, the defendant essentially took the position that the time and expense required to apply such additional information to each document was not merited insofar as the volume of documentation to be produced was capable of organization, as well as ready identification and location, without such additional markings. I agree. In my experience, wrongful dismissal actions such as the one in this case, in contrast to more complex forms of document intensive litigation such as class proceedings, product liability disputes and other forms of commercial litigation, do not usually generate a volume of relevant documentation incapable of sufficient organization and management by more conventional and less complicated means. In other words, the volume of relevant documentation in this case seems more likely to involve hundreds of pages rather than many thousands of pages. If that prediction proves to be inaccurate, the parties have the ability to revisit the matter and update the discovery plan appropriately, as contemplated by Rule 29.1.04 of the Rules of Civil Procedure.
f. In relation to Part 5, (addressing the “Timing/Format of Production Records”), the indicated deadlines for production and exchange of paper and electronic records shall be changed from February 28, 2023, to April 30, 2023.
g. In relation to Part 6, (addressing “Oral Discovery”), the date for completion of the plaintiff Mr Rooke’s examination shall be changed to August 30, 2023, and the date for completion of the examination of Jamie Lanoue, (the defendant representative selected by the plaintiff), shall be changed to June 30, 2023.
Costs
[12] Each party provided me with a costs outline for consideration.
[13] The Plaintiff’s costs outline suggested a request that I award the plaintiff costs of the motion on a substantial indemnity basis, fixed at $5,039.24, for all fees, disbursements and applicable tax. However, that request was modified in the course of submissions to one seeking costs for the plaintiff of $2,000.00, on a partial indemnity basis, having regard to considerations such as:
a. my observation that some of the amounts addressed by the plaintiff’s costs outline seemed to include costs that would have been incurred by the plaintiff in any event to prepare and negotiate a discovery plan; and
b. the indication in the defendant’s costs outline that, had the defendant been successful on the motion, it would have sought its costs of the motion on a partial indemnity basis, fixed at $2,002.25 all-inclusive.
[14] In the result, plaintiff counsel asked that I award the plaintiff costs of the motion fixed at $2,000.00, payable forthwith.
[15] Defence counsel, emphasizing in particular that the plaintiff had sought an order striking out the defendant’s pleading and noting the defendant in default, (a request for drastic relief the defendant felt obliged to oppose even if the request was unlikely to be granted in the circumstances), suggested that it would be appropriate to award no costs of the motion.
[16] I have regard to all the cost considerations outlined in Rule 57.01(1) of the Rules of Civil Procedure, but am most influenced by my view that the motion should have been unnecessary, (i.e., had the defendant extended appropriate and timely cooperation in finalizing the proposed further amended discovery plan, and agreed on a timeline for provision of its affidavit of documents, “Schedule A” productions and dates for oral discovery examinations), that the plaintiff succeeded in relation to most of the issues raised by the motion, and that the costs ultimately sought by the plaintiff are reasonable having regard to the costs the defendant itself would have sought had it been successful.
[17] Costs of the motion accordingly are awarded to the plaintiff and fixed in the all-inclusive amount of $2,000.00, payable forthwith.
[18] In that regard, I note for the sake of clarity that, in my view, the costs associated with preparation of the plaintiff’s discovery plan and initial steps taken by plaintiff counsel to negotiate and agree upon that plan, (i.e., up to and including plaintiff counsel’s preparation and provision of the initially revised version of that plan), are not costs of the motion addressed by the above cost award, but costs of the action which the plaintiff may seek when such costs are being addressed.
Justice I.F. Leach
Date: February 13, 2023
[^1]: See Rule 29.1.03(1) and 29.1.03(3). [^2]: See Rule 29.1.03(2). [^3]: See Rule 29.1.05(1). [^4]: See Lecompte Electric Inc. v. Doran (Residential) Contractors Ltd., 2010 ONSC 6290, [2010] O.J. No. 4949 (Master); and Maxi Boutique Inc. v. TD General Insurance Co. (2018), 28 C.P.C. (8th) 141 (Ont.S.C.J.). [^5]: See, for example: TELUS Communications Co. v. Sharp (2010), 2010 ONSC 2878, 102 O.R. (3d) 93 (Master); and Descartes Systems Group Inc. v. Trademerit Corp. (2012), 28 C.P.C. (7th) 35 (Ont.S.C.J.). In that regard, I note that Rule 29.1.05(2) contains the only provisions of the Rules of Civil Procedure expressly addressing court imposition of a discovery plan where the parties have failed to agree upon one, and speaks only to the court ordering “that examinations for discovery be conducted in accordance with a discovery plan established by the court, which may set a schedule for examinations and impose such limits on the right of discovery as are just”. [Emphasis added.] In practice, however, the court has imposed discovery plans speaking to aspects of discovery extending beyond court control of when, where and how such examinations are conducted; e.g., pursuant to the court’s authority, when making any order, to impose additional terms and give further directions, pursuant to Rule 1.05 of the Rules of Civil Procedure. [^6]: See rule 29.1.03(1).