Sharpening the Sword II: Tactics and Strategies for Lock n’ Load Litigation

Boundaries and Battles:

Defining the Landscape for Effective Discovery

Friday, April 11, 2008

Ontario Bar Association Continuing Legal Education

Michael G. EmerySimpson Wigle LLP – Burlington

Boundaries and Battles:

Defining the Landscape for Effective Discovery * Michael G. Emery

Civil litigation is not war, despite the temptation to use that metaphor. It is a process that

we as a civilized society employ to resolve or determine civil disputes between parties. Nor

should it be characterized as civil war except in the sense that it represents a clash of wills over

common ground. However, the analogy is frequently employed because the adversarial system

at times leads to improper conduct and even hostility between parties with the belief that one

party is on the side of right.

Given that the ultimate goal in a civil action is to obtain the best result, the examination

for discovery process is perhaps the best opportunity to extract information toward that objective.

Just as in any contest, counsel will often encounter resistance in that quest for information.

While the trial itself may be the theatre in which the conflict plays out, the examination for

discovery may be the most important staging ground.

This paper does not propose to discuss the purpose or procedure involved with

conducting an examination for discovery, or to offer practical tips of general application.1

Rather, the paper will deal with the parameters of discovery to address frequently encountered

1 For an excellent presentation of tips to prepare for and the conduct of any examination for discovery, please see “When the Going Gets Tough: 10 Tips for Preparing For and Conducting Examinations for Discovery” by Donald E. Short and Antonio DiDomenico, Fasken Martineau DuMoulin LLP contained in the materials for the inaugural run of this OBA Program on March 30, 2006

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obstacles concerning the scope of examination, including failure of the witness to answer proper

questions, production of documents and obstructive conduct at or during the discovery.

Scope of Examination

Pleadings

Rule 31.062 governs the general scope of examination, where it is stated that a person

examined for discovery shall answer, to the best of his or her own knowledge, information and

belief. The key to the scope the discovery may encompass are the words “any proper question

relating to any matter in issue in the action…”. A matter in issue in the action is determined by

what facts or causes of action are contained in the pleadings exchanged by the parties. This

includes not only the Statement of Claim when examining a Plaintiff, but also a Statement of

Defence and any Reply. Generally speaking, the pleadings establish the boundaries of the

litigant’s battle ground. Much of any fight as to what is relevant and what is not at an

examination for discovery is measured by the concept of “semblance of relevancy”. That

yardstick was discussed in Kay v Posluns,3 a case familiar with any counsel who has ever argued

a refusals motion. Familiar too will be the principal that a judge will not likely interfere with the

ruling of a Master on any question unless it is clearly wrong.4 This principle is applied with

2 Rule 31.06 (1) of the (Ontario) Rules of Civil Procedure 3 (1989) 71 OR (2d) 238 (H.C.). 4 Air Canada v McDonnell Douglas Corporation (1995) 22 OR (3d) 382, additional reasons 23 OR (3d) 156 (Gen. Div.); and Marleen Investments Ltd. v McBride (1979) 23 OR (2d) 125 (HCJ)

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great deference to the rulings of a Master on appeal of a refusal motion, unless there is a very

good and clear reason to do so.

It is a useful observation that the party to be examined is often in his or her strongest

position before the examination for discovery. This observation has two parts. First, that party

has already put the best foot forward in the pleading and in providing (hopefully) full

documentary disclosure in the Affidavit of Documents. The second part of this observation is

self-evident: the examination for discovery is the first opportunity (absent mediation or any

previous attempts to settle before or after commencement of the action) for examining counsel to

interact with, ask for information from, test and challenge the examinee on the pleadings and the

disclosure of documents. It is the first opportunity to focus the attention of the examinee on the

facts and issues, under oath. It is an opportunity not to be wasted, for it is an excellent chance to

erode the case of the party being examined while building up the case of your own client. This

reflects the three principle purposes of production and discovery that has been repeated time and

again:

1. to enable the examining party to know the case he or she has to meet;

2. to enable him or her to procure admissions which will dispense with other formal

proof of his or her own case; and

3. to procure admissions which will destroy his or her opponent’s case.5

5 Modriski v Arnold [1947] OWN 483 (CA) and Kay v Posluns, supra

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The mandate for preparing for the examination is to thoroughly understand the theory of

your client’s case and the competing theory of the adverse party. Central to understanding the

nature and basis of each side of the dispute is a working knowledge of the facts known to date,

and central documents to the issues. There must be a solid understanding of the facts and

documents to be proven or challenged. As they say, to be forewarned is to be forearmed.

Be Clear

The problems at an examination for discovery where the examinee or representing

counsel resists answering a question on the basis of scope or relevance should be addressed in

the first instance as soon as the refusal or objection is made. Since any refusal is subject to

review by a motion court, it is sometimes wise to restate the question clearly and entirely for the

record. Failure to do so can lead to the practical result that the question asked or the refusal to

answer may be lost or forgotten. This is particular so when the thread of the question has

become tenuous through exchanges between counsel in the heat of battle. It can also lead to the

legal result that a motion court may consider that the question was not asked properly, and is

therefore not a proper question, or that the examining counsel accepted the answer as given.

Examining counsel should obviously be familiar with the pleadings and have a set readily

on hand at the examination for discovery to give reasons on why questions should be answered

as they are asked and refused. The case law currently holds, as it has for a number of years, that

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the semblance of relevancy test provides wide latitude for examining counsel on those facts and

matters made relevant by the pleadings, as long as it is not abused. However, it is incumbent on

examining counsel to be clear in the question he or she is asking, and equally incumbent on the

examinee’s counsel to fully understand the question being asked in order that a proper response

be made. In this way, examining counsel is able to explore the case to be met (if examining the

Plaintiff) or the defences to the claim (if examining the Defendant) in an intelligent manner for

the effective use of the evidence. It is just as important to identify on discovery the legal

position on particular issues. There is authority that mixed questions of fact or law are proper.

The court has required a witness to answer questions relating to the position that the Defendant is

taking on a legal issue in the action.6

Temporal Scope

In appropriate cases, questions may be asked about the examinee’s practices before the

cause of action arose, and in circumstances that have just been expanded by the courts, what

steps the examinee took after the cause of action or injury was suffered. In Torami v Horton7 it

was held that the examining counsel could ask questions about the habit of a person or the

routine practice of an organization in a case involving the general state of the maintenance or

repair of a fleet of motor vehicles where one of those vehicles was involved in the cause of

action. For questions relating to subsequent steps, the courts have held that questions may be

6 Law v Zurich Insurance Co. (2002) 21 CPC (5th) 280, also found at 2002 CarswellOnt 1468 7 (1988) 67 OR (2d) 346 (Div Ct)

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asked at an examination for discovery regarding remedial measures taken subsequent to the

accident at issue in an action, although those answers might not necessarily be admissible at trial.

Such admissibility and the weight to be given to those answers would be matters for the trial

judge.8 However, in a decision released on March 31, 2008 the Ontario Court of Appeal appears

to have expanded not only the relevance of subsequent remediation or repair (of such things as

premises allegedly not reasonably safe at which a Plaintiff has suffered injury), but also the

admissibility of that evidence at trial, provided that the evidence has some probative value that is

not outweighed by prejudicial effect. The Court of Appeal approved the charge of the trial judge

to the jury that the remedial steps as evidence, standing on their own, cannot be taken as an

admission of liability by the Defendants. Any such evidence of remedial steps must be

considered in the context of all of the evidence.9 This development in the law provides the basis

to enlarge the scope of discovery concerns not only as to the facts and legal principles of contract

or tort operating at the time, but on a proper foundation could include discoverable evidence

leading up to the cause of action, and in certain circumstances what took place after. Still, in

order to provide the necessary foundation to explore facts preceding the event and those

subsequently occurring, all roads lead back to the pleadings. Counsel should be prepared to

explain on the record how questions in those areas relate to the pleadings to make them “matters

at issue in the action”.

8 Algoma Central Railway v Herb Fraser & Associates Ltd. (1988) 66 OR (2d) 330 (Div Ct) 9 Sandhu v Wellington Place Apartments, Court File No. C45706, released on March 31, 2008

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Examination of More than One Person

The basic rule in Ontario, set out in Rule 31.03, is that a party (through counsel) may

examine for discovery any other party adverse in interest, but only once without leave of the

court. This often leads to the second part of that rule being overlooked. Rule 31.03 (1) also

provides that a party may examine more than one person (of another party adverse in interest) as

permitted by subrules (3) to (8), such as each person who was or is alleged to have been a partner

or the sole proprietor if an action is brought by or against the partnership or sole proprietorship,

the litigation guardian in the place of a person under disability if an action is brought by or

against a party under disability, or where an action is brought by or against an assignee, the

assignor may be examined in addition to the assignee. A bankrupt may also be examined in

addition to a trustee where an action is brought by or against a trustee of a bankrupt estate.

Where an action is brought or defended for the immediate benefit of a person who is not a party,

that person may be examined in addition to the party who has brought or defended the action on

his or her behalf. The Ontario rule is clearly not as broad as the discovery rights available to

litigants in the United States for the deposition of witnesses in a civil action. However, counsel

should be familiar with the rights to examine persons on behalf of parties in addition to the

parties themselves.

It is through the use of thoroughly knowing the rights of who can or should be examined

that discovery rights on what to ask those persons when examining them gives rise to the ability

to ask questions about the knowledge and potential evidence of witnesses who are not

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discoverable without leave of the court. The language of Rule 31.06 (2) allowing an examining

party to obtain disclosure of the names and addresses of persons who might reasonably be

expected to have knowledge of transactions or occurrences in the action therefore exposes the

examinee for a legitimate request for identity, names and addresses of such persons.10 In the

case of a corporation where there is no given right to examine more than one person on behalf of

the corporation without leave of the court, the examining party is entitled to ask questions of the

person being examined on behalf of the corporation regarding knowledge obtained both in that

persons capacity as a corporate officer or director and in his or her personal capacity.11 The

person being examined for discovery as a representative of the corporate party should be

reasonably informed as to the facts of the action. Where that representative is vague or can only

give indefinite evidence in response to questions, there may be grounds for the court to order a

second representative be produced for discovery.12 Using these tools effectively, examining

counsel can use leverage to open the scope of discovery wider to obtain information from a

number of witnesses having knowledge of the facts helpful to the case.

The scope of discovery then, presents great opportunity to gather evidence from the

adverse party. It patrols the border of the litigation, defining what is made relevant and the

extent of discovery, and what should be left outside of it.

10 Rule 31.06 (2), (Ontario) Rules of Civil Procedure 11 Willroy Mines Ltd. v New Cinch Uranium Ltd. (1983) 34 CPC 13; affirmed 34 CPC 13n (Ont. CA) 12 Abitibi-Price Inc. v Serada (1984) 43 CPC 217 (Ont. HC)

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Failure to Answer Proper Questions

The Rules provide two basic remedies against a party who fails to answer a proper

question on discovery: to either bring a motion under Rule 34.15 for refusing to answer a proper

question, or to rely on that failure to answer at trial to prevent that party from introducing the

information at trial that was not provided at discovery when required, except with leave of the

trial judge.13 A party under an examination need not expressly refuse to answer a question that

is proper or found later to be proper: this rule applies also to questions considered or taken under

advisement, but for which no answers are provided within 60 days.14 It can also take the form of

an undertaking to answer the question, when no answer is provided within 60 days after giving

that response.15

It is generally advisable that if the question is proper and seeks an answer that would

provide evidence central or even helpful to proving the case of a Plaintiff, or the testing or taking

away force from a defence when examining a Defendant or Third Party, a motion should be

brought for the determination that the question asked was a proper one and that the party be

compelled to give the answer. Any motion should also ask for the party to also provide

supporting documents, and that he or she re-attend to be examined on the answer, supporting

documents and to answer any proper questions arising. There is a risk to do otherwise and rely

on the application of Rule 31.07 (2) to block the same information refused at discovery if later

tendered at trial. The test for leave to introduce and have such evidence made admissible with

13 Rule 31.07 (2), (Ontario) Rules of Civil Procedure 14 Rule 31.07 (1)(b), (Ontario) Rules of Civil Procedure 15 Rule 31.07 (1)(c), (Ontario) Rules of Civil Procedure

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leave of the trial judge under Rule 53.08 is quite generous to the mischievous party because of

the mandatory language that “leave shall be granted” on such terms as are just and with an

adjournment if necessary, unless to do so would cause prejudice to the opposite party or will

cause undue delay in the conduct of the trial. It has been held that such leave must be granted by

the trial judge unless there is prejudice which cannot be overcome by an adjournment or costs.16

This is reminiscent of the approach taken by the courts when a motion is brought for leave to

amend pleadings on the eve of trial.17

When examining the person or party for discovery on facts and issues that are clearly

contentious, it is therefore important to bear in mind what evidence is essential and to structure

the questions seeking that evidence carefully to set up either the basis for a motion, or to

highlight the prejudice that an unresponsive answer or an outright failure to answer that question

may cause, and reasons why. The ability to conduct the examination for discovery is the ability

to control the information required by the questions that are asked of the adverse party. It is the

ability to paint the picture, complete with images, colors, texture and content, with the motion

court or the trial judge in mind. This is an opportunity to define the legal landscape, by obtaining

key evidence and context for the case.

16 Marchand (Litigation Guardian of) v Public General Hospital Society of Chatham (2000) 51 OR (3d) 97 17 Mazzuca v Silver Creek Pharmacy Ltd. (2001) 2001 CarswellOnt 4133 (CA) and Kings Gate Developments Inc. v Drake (1994) 17 OR (3d) 841 (CA)

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Requiring and Obtaining Production of Documents at Discovery

Examinations for discovery in ordinary procedure cases follow the exchange of

Affidavits of Documents as surely as spring follows winter. Every counsel in a case should

always insist on a proper Affidavit of Documents sworn by the party or the authorized

representative of the party if a corporation or legal entity that is not a person, certified by the

solicitor as required by Rule 30.03. Without an Affidavit of Documents, there is no assurance of

full documentary disclosure and compliance with the duty to make full and continuous disclosure

throughout the action. This not only leaves counsel for a party that has not obtained full

disclosure blind as to all possible documents that may be of benefit or harm, but also leaves the

party open to be blindsided at trial.

Insisting on an Affidavit of Documents is a right given to a party under the Rules, and

technically a prerequisite to arranging examinations for discovery.18 Although the exchange of

Affidavits of Documents should occur contemporaneously and at sometimes according to a

schedule agreed between counsel, the race is sometimes to the swiftest in that the party serving a

properly sworn Affidavit of Documents can set the agenda for the examinations for discovery.

This power can create the illusion, at least in the eyes of the parties themselves, of controlling the

action.

The Affidavit of Documents of the examinee is the staging ground for the preparation for

and conduct of the examinee’s oral examination for discovery. A party is entitled to request to 18 See Rule 31.04 (1) and (2), (Ontario) Rules of Civil Procedure

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inspect any document that is not privilege and that is referred to in the other party’s Affidavit of

Documents. This is often accomplished and accommodated by cooperating counsel exchanging

Schedule A productions between them. The right and the authority to inspect documents

referred to in the other party’s Affidavit of Documents allows the examining party not only to

review and verify the documents the adverse party has disclosed, but also to determine what has

been left out. In the course of preparing for the examination for discovery, examining counsel

should check with his or her own client as well as other third party sources, including experts

retained to assist in the preparation of the discovery process, to write a letter to counsel for the

adverse party asking for disclosure of those documents which ought to or should have been

disclosed. This letter can then be used as either a building block for a motion to seek a further

and better Affidavit of Documents, or at the examination for discovery to enquire of the

whereabouts or logical existence of such documents as a further basis for a motion to obtain

further and better disclosure.19

It is not necessary to list in a Notice of Examination those documents described in the

Affidavit of Documents of the adverse party for which the examinee is being produced as Rule

34.10 provides mandatory language requiring the person to be examined to bring all documents

to the examination for discovery. The rule echoes the language of those documents to be

included in the Affidavit of Documents. However, Rule 34.10 (3) does not preclude listing such

documents and states that the Notice of Examination may also require the person to be examined

to bring such documents or things as are otherwise specified in the Notice. It is interesting to

19 For requirement on a motion for a further and better Affidavit of Documents, see Bow Helicopters v Textron Canada Ltd. (1981) 23 CPC 212 (Ont. Master)

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observe that the Rule does not condense the obligation of the person to be examined to simply

bring those documents listed in the Affidavit of Documents, but rather repeats that he or she

must bring all documents. This implies that such full disclosure is not restricted to an Affidavit

of Documents, whether deficient or not, and further provides that the person to be examined

bring all things which may take a form other than paper. The letter from examining counsel

regarding his or her observations of documents which were not described in the adverse party’s

Affidavit of Documents that examining counsel would like to see at the examination for

discovery can serve as advance notice of a request for the production and discovery of any

further documents.

In addition to the Notice of Examination requiring the person to be examined to bring

with them all documents required by Rule 34.10 (3)(a), subparagraph (b) provides the platform

for the very documents that may have been listed in the advance letter may be set out in the

Notice of Examination as documents the examining party requires that person to bring to the

examination and produce for inspection. While others may differ, with this foundation in place it

is appropriate to mark the Notice of Examination setting out what documents are required at the

examination for discovery as well as the preceding letter as exhibits to demonstrate if need be to

a motion court that such documents were required at discovery by legal process and with full

notice.

The rule in Ontario regarding the production of documents required at an examination for

discovery is therefore comprehensive and flexible. It relates to other rules regarding the duty to

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make full and continuous disclosure of documents (as redefined to include electronic and other

information)20 , the requirement to serve a properly sworn and certified Affidavit of Documents,

the opportunity to inspect documents, and the ability to ask for a greater range of documents than

provided or to move for a further and better Affidavit of Documents which will in turn provide

an expanded platform for inspection and discovery. It may also open the door to gaining access

to other documents the examinee may admit on his or her examination are in his or her

possession or control of or power over any other document that relates to a matter at issue in the

proceeding (and not privileged).21 The Affidavit of Documents, and the legal right given by the

Rules to require production of documents at the examination for discovery of the adverse party

therefore allows the examining party to establish a beachhead on hostile ground which may be of

assistance in advancing the case.

Conduct Unbecoming: Improper Conduct or Misconduct at the Examination

What is improper conduct at an examination for discovery, and sanctions for improper

conduct are provided by Rule 34.14. So too are sanctions for default or misconduct by the

person to be examined under Rule 34.15. What is not precisely stated is what constitutes

“improper conduct” or “misconduct”, or when the former crosses the line to become misconduct.

20 Rule 30.01 (1)(a), (Ontario) Rules of Civil Procedure 21 Rule 34.10 (4), (Ontario) Rules of Civil Procedure

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Improper Conduct

Improper conduct under Rule 34.14 provides the basis for the examination for discovery

to be adjourned in order that the parties may seek directions from the court as to the proper

conduct for the continuation of the examination, or for an Order terminating the examination or

limiting its scope. The rule itself attempts to define improper conduct by setting out the

circumstances that may justify adjourning an examination for discovery to seek direction, as

follows:

“IMPROPER CONDUCT OF EXAMINATION

Adjournment to Seek Directions

34.14 (1) An examination may be adjourned by the person being examined or by a

party present or represented at the examination, for the purpose of moving for directions

with respect to the continuation of the examination or for an order terminating the

examination or limiting its scope, where,

(a) the right to examine is being abused by an excess of improper questions or

interfered with by an excess of improper interruptions or objections;

(b) the examination is being conducted in bad faith, or in an unreasonable manner

so as to annoy, embarrass or oppress the person being examined;

(c) many of the answers to the questions are evasive, unresponsive or unduly

lengthy; or

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(d) there has been a neglect or improper refusal to produce a relevant document

on the examination. R.R.O. 1990, Reg. 194, r. 34.14 (1).

In Iroquois Falls Power Corp. v Jacobs Canada Inc.22 Master MacLeod summarized the

following principles on the permissible conduct of counsel at an examination for discovery from

the case law and his analysis of the motion before him:

“1. Counsel representing a party who is being examined is entitled to interrupt

the examining party for the purpose of objecting to an improper question, placing

the objection on the record and either directing the witness to answer under

protest or not to answer. See Rule 34.12 and Kay v. Posluns, p. 246

2. Counsel may also interrupt the examiner if necessary to ensure the witness

and counsel both understand the question. See Kay v. Posluns, p. 246

3. As a practical matter counsel may sometimes wish to answer a question or

to correct an answer but if the examining counsel objects then neither of these are

permitted. See Rules 31.08, 31.09 See Kay v. Posluns, p. 246-247

4. Counsel may choose to re-examine his own client in order to correct an

answer or to clarify or explain an apparent admission or inconsistency.

Alternatively he or she may provide the correction or clarification subsequently in 22 (2006) 32 CPC (6th) 127, 2006 CarswellOnt 6532, 83 OR (3d) 438

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writing. In either case, the examining party is entitled to the evidence of the

witness and not that of counsel. It is the duty of the witness and not counsel to

correct the evidence. See Rules 31.09 & 34.11; Kay v. Posluns, p. 247

5. Counsel must respect the fact that discovery evidence will include an

element of cross examination and should not discuss evidence with the witness

during a break. See Rule 4.04, Rules of Professional Conduct; Chapter IX, CBA

Code

6. In a lengthy discovery or series of discoveries, counsel may consider it

necessary to discuss evidence with the witness. Generally the intention to do so

should be disclosed to opposing counsel and if there is an objection it may be

necessary to seek leave of the court. See Commentary, Rule 4.04, Rules of

Professional Conduct

7. If there is a break between rounds of discovery, counsel is free to meet

with the client to prepare for the upcoming discovery. It may also be necessary to

discuss evidence already given to obtain instructions in regard to discovery

motions, to advise the client of the duty to correct answers and to answer

undertakings. It is prudent to disclose this intention to opposing counsel.

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8. Counsel ought not unnecessarily to oppose reasonable discussions

between counsel and client provided they are disclosed. It is legitimate on the

resumption of discovery to ask the witness under oath if he or she was coached in

any way as to what answers to give.

9. Accusations of professional misconduct ought to be reserved for the

clearest of cases based on cogent and persuasive evidence and when such a

finding is a necessary and inescapable conclusion.

10. Motions for direction should only be necessary when counsel for the party

being examined has refused all requests to conduct him or herself in accordance

with the rules and interference has become so extreme as to render the discovery

futile.

11. Generally speaking the Court will eschew findings that a counsel has

breached the Rules of Professional Conduct as such but will take notice of those

Rules in determining what standard is expected of counsel before the courts. The

court may have to make findings of fact that could constitute evidence of

professional misconduct. In such cases counsel should be afforded reasonable

procedural protections.”

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In the Iroquois Falls case, the court declined to give formal direction pursuant to Rule

34.14 under the circumstances, namely that counsel for the party being examined had discussed

the evidence of the party being examined during a break with a view to correcting the answer to

a previously asked question, with no impropriety intended or dishonorable motive involved.

However, the case is instructive from both a practical view point and establishing various

benchmarks of conduct expected by the court. What is permissible conduct serves also to set

boundaries for what is not. Interestingly, the sanctions for improper conduct, or for adjourning

to seek direction improperly gives authority to the court to control the process of the examination

but not the further powers provided for the default or misconduct by the person being examined

under Rule 34.15. However, the discretion given to the court under Rule 34.14 (2) to order the

person being examined, a party present or representative of the party under examination to pay

personally and forthwith the costs of the motion (which may in certain circumstances include

counsel)23 as well as any costs thrown away and the costs of the continuation of the examination

are fairly onerous. It all adds up to improper conduct, or improperly adjourning the examination

to seek directions from the court, as the case may be, being an expensive mistake to make.

Misconduct

Rule 34.15 applies to default or misconduct by the person to be examined for discovery,

and is the more severe of the two categories of conduct unbecoming a person under examination

23 In which case Rule 57.07 and related principles may become engaged

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or his or her counsel. This rule is clearly directed at the refusal or neglect of a party to properly

comply with the discovery process.

In addition to the categories of misconduct given, the rule also covers the refusal or

neglect to comply with an Order under Rule 34.14. The rule expressly recognizes behaviour that

exceeds the improper conduct of a party, and provides additional powers to the court to police

against the abject refusal or neglect of a party or a person produced on behalf of a party for

discovery of his or her obligations under the disclosure and discovery rules. The discretion given

to the court to sanction such default or misconduct under Rule 34.15 ranges from ruling on an

objection to a question that is held to be improper (and therefore determined to be a proper

question that the question be answered) to the more draconian relief of dismissing the party’s

proceeding (if the Plaintiff) or striking out the party’s defence (if a Defendant, in which case a

motion for judgment would be in order), or to make such other Order as is just. The rule also

provides that where a person does not comply with an Order under Rule 34.14 or Rule 34.15 (1),

a judge (and not a master) may make a contempt Order against the person.

While the court has a broad range of discretion and each case turns on its own

circumstances, the court has and will dismiss an action where the Plaintiff is in breach of his or

her obligations. This occurred in the case of a Plaintiff who had breached four Orders, including

a “last chance” Order to fulfill undertakings and produce documents at discovery.24 There is

24 Vacca v Banks (2005) 2005 CarswellOnt 146, 6 CPC (6th) 22 (Div Ct)

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some suggestion, however, that the court should require evidence of prejudice to the Defendant

flowing from the failure to fulfill undertakings before such Order is made.25

Similarly, in a case where it was shown that the Defendants had repeatedly breached its

obligation to answer undertakings and where it could be shown that the Plaintiff had suffered

prejudice, the court struck out the Defendant’s Statement of Defence.26

Conclusion

In conclusion, examinations for discovery can be dangerous to both the examining party

who does not take full advantage of the armaments provided by the Rules and case law, and

dangerous also to the party to be or being examined if there is insufficient disclosure of

documents, or behaviour that is found to be improper conduct or misconduct itself. Parties to a

civil action in Ontario have rights and obligations the law provides to promote the resolution of

the matters at issue on their merits. However, the law in Ontario with respect to the proper

conduct for effective discovery requires that litigants abide by the same rules of engagement to

provide fair and equal access to a just result.

______________________________________

*Michael G. Emery is a partner at Simpson Wigle LLP, with offices in Burlington and Hamilton, Ontario

25 Mader v Hunter (2004) 2004 CarswellOnt 827 (CA) 26 Madonia v Mulder (2002) 2002 CarswellOnt 481