I am grateful to be a member of the personal injury bar. It is a bar where we all encounter one another during many cases and therefore instead of being contentious, we can professionally and cordially work together towards the outcome of the action.
However, one of the constant battles that I have as defence counsel is who is responsible for paying for productions prior to examinations for discovery in personal injury matters. It is my position that the onus of proof remains with the Plaintiff and that, therefore, they should be producing documentation to substantiate the claims advanced in the Statement of Claim. Why should the Defendant pay for productions to assist the Plaintiff’s claim?
In the decision of Rheaume v. Foster, we received some more clarity on this issue, especially for actions brought within the Simplified Procedure realm.
The facts are: the Plaintiff was involved in a motor vehicle accident and brought a claim under the Simplified Procedure. The Defendant sought productions prior to the examination for discovery, especially given the time limit for discoveries under Simplified Procedure and the need to be as efficient as possible.
Bowell J. held:
- Fulsome disclosure by each litigant of all relevant documents in their possession, control or power is a precondition to a fundamentally fair trial.
- In the context of Simplified Rules cases, Rule 76.03 requires each party to serve an Affidavit of Documents on all other parties within 10 days of the close of pleadings. Rule 76.09(1) requires the parties to consult one another, in person or by telephone, within 60 days of the filing of the first defence, to consider whether all documents relevant to any matter in issue have been disclosed.
- Documentary discovery is informed and constrained by the principles of relevance, materiality and proportionality.
- Having reviewed the defendants’ list of Disputed Productions, I am satisfied that each is clearly relevant to the issues raised in the pleadings and the applicable substantive law. Nothing in the enumerated list strikes me as particularly disproportionate to the live issues and the value of the claim. Indeed, their production strikes me as inevitable and par for the course in an action of this nature.
- Of particular significance, in my view, is the fact that parties are limited by Rule 76.04(2) to three hours of oral discovery. It is imperative that the examiner be well-prepared and focused. Proper preparation requires that each party have as much disclosure as possible of relevant documentation prior to the examinations proceeding. Not only will timely disclosure of the Disputed Productions improve the quality and efficiency of oral examinations, it will also enhance the prospects of resolution.
The defendants relied on the decision of Sloan J. in Trumble v. Soomal, 2020 ONSC 8097. Trumble was a motor vehicle accident claim. The amount in issue was about $175,000. The court was asked to determine which party was obliged to pay for medical reports and records in a personal injury action.
Sloan J. went on to express dismay that the jurisprudence remains unclear regarding who should bear the cost of obtaining and producing routine medical and work records in personal injury actions.He observed that in all personal injury litigation, the plaintiff’s pre-accident history is “automatically” brought into question. Plaintiffs will, accordingly, know what documents they are going to have to produce in relation to their claims.
Sloan J. concluded that in “run-of-the-mill” personal injury actions, documents were routine and reasonable and should be produced at the expense of the plaintiff.
Reference was then made to the Rules of Civil Procedure and specifically Rule 76.03(1) which states:
A party to an action under this Rule shall, within 10 days after the close of pleadings and at the party’s own expense, serve on every other party,
(a) an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power; and
(b) copies of the documents referred to in Schedule A of the affidavit of documents.
(Emphasis added)
The rule expressly requires each party to disclose all relevant documents in their possession, control or power and to produce copies of those documents to all other parties, at the parties’ expense!
I am grateful to have these precedents to rely upon in my ongoing battle on this issue. However, I am certain that this will not be the end of this issue.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.