The New Rules: Appealed and Appealing

 The case law continues to build under Ontario’s new Rules of Civil Procedure. Courts appear to see the appeal of not only the amendments themselves, but of the basic principles underlying those involved in discovery, proportionality and reasonableness in particular. 

The Appeal

These basic principles (in part) formed the subject matter of the recent appeal case of Wahid v. Malinovski, 2010, ONSC CanLII 3249, decided on July 7, 2010.  The court was asked to overturn the order of a Master who had ordered Wahid to provide a further Affidavit of Documents and to produce certain relevant document by a determined date. The main grounds for the appeal were that the Master misapplied Rule 29.01, that she failed to apply the “purpose and spirit of the new Rules”, that she misapprehended the evidence regarding the relevance of the requested documents, and lastly, that she failed to exercise her discretion judicially in granting an award of costs. 

The Dismissal

The court dismissed the appeal in its entirety. 

The value of this case?

In its decision, the court confirms that the amendments to the Rules do not negate pre-existing discovery obligations or judicial discretion.  

Pursuant to Rule 30.04(5), the court may at any time order production of unprivileged, relevant documents in the possession, control or power of a party…[n]one of the new Rules amendments hamstring the court’s discretion under Rule 30.04(5) to order production of documents for discovery. (para. 11) 

Further, the basic principles of fairness and efficiency in litigation, and the doctrine of proportionality continue to be endorsed by courts:  

Discovery is to facilitate settlement or, if that is not achievable, to make the trial process more efficient and fair. Concerns about discoveries being unduly long and costly, sometimes turning into fishing expeditions, have stewed in recent years:  see Osborne Report at 59. New provisions were added and certain provisions of the Rules were amended…to streamline the discovery process.” (para. 6) 

Rule 29.2.03 sets out a list of factors to be considered by a court when ordering production of unprivileged, relevant documents in the possession control or power of a party (including time, expense, prejudice, undue interference with the orderly progress of the action, availability of the information or record)…underpinning all of the factors listed in the Rule is the overriding principle of proportionality. (para. 9)

Why Susan ³? For e-Discovery in Canada!

Yes it’s true, we are all named Susan!

Susan³ is a quick and easy way to refer to the team at Wortzman Nickle. The name may be a coincidence, but creating a dynamic, cutting-edge e-discovery team required some thought.

Susan Wortzman and Susan Nickle worked together for ten years before establishing the first e-discovery law firm in Canada. Wortzman Nickle began operation in October 2007 and continues to participate in setting national e-discovery standards and advising on records management and litigation readiness issues.

The legal community knows that e-discovery “will have the biggest impact on the practice of law over the next five years.” (Canadian Lawyer Magazine, March 2008)  So it was not long before the e-team needed to find another technically-savvy individual. With expertise in litigation and in-house counsel for a large media company, Susan Caskey was a seamless addition to the Wortzman Nickle team.

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