This was a decision on a motion to compel answers to undertakings in a home renovation case. It was conceded that there was no formal discovery plan and no agreed upon deadline for answering undertakings. The primary issue of contention therefore was whether or not the motion was necessary. After the motion was launched, the majority of the undertakings were answered. At the time of the hearing, it was simply necessary to set a deadline for the remaining answers, to rule on the sufficiency of certain others and to deal with costs.
The court stated that the interplay between the Rules of Civil Procedure, Rules of Professional Conduct, Principles of Civility and Professionalism and the relatively new requirement for formal discovery planning is important and that the attempt to use principles of civility to counter reliance on the rules of civil procedure required comment.
The Master ruled on certain unfulfilled undertakings and set out a ruling and timetable which included a follow up examination as well as alternatives to further discovery such as a voluntary provision of the necessary documentation and explanation, questions posed in writing, or admissions.
Turning to costs, Master MacLeod stated that Rule 29.1.05 demands that the court consider whether the lack of a discovery plan should have an impact on the relief granted or on the disposition of costs. Each of the parties argued that the motion was unnecessary. The defendants argued that it was unreasonable, precipitous and adversarial of the plaintiff to bring a motion when there was no real dispute that the undertakings had to be fulfilled, especially given the fact that there was no discovery plan. Conversely the plaintiff argued that he should receive substantial indemnity costs because the plaintiff was clearly entitled to the relief sought, that there was no excuse for only answering undertakings after a motion was brought, and that the defendants were given ample and fair warning.
The court commenced by outlining situations which would provide a basis for increasing, decreasing or reversing the ordinary cost consequences such as the failure to have a discovery plan; a premature motion; frivolous, vexatious or an abuse of process; conduct of one of the parties to waste costs or incur unnecessary costs; or if there was a drastic breach of expected standards of advocacy and civility.
The court then proceeded to outline the expectations and demands of lawyers. Master MacLeod noted that lawyers are obligated to treat each other with courtesy and respect and to grant reasonable indulgences but they also have a positive duty to advance the interests of their clients. This tension is reflected in the Rules of Professional Conduct as Rule 4 requires a lawyer to represent each client “resolutely and honourably within the limits of the law”. Rules 4 & 6 require the lawyer to act courteously, civilly and in good faith towards opposing counsel in litigation.
Having outlined the Rules of Professional Conduct, Master MacLeod summarized The Principles of Civility for advocates, which contains more detailed norms of behaviour. Advocates are expected to avoid unnecessary motion practice or other judicial intervention by negotiating and agreeing with opposing counsel whenever practicable. Advocates are generally expected to give notice to the opposing counsel before taking fresh steps that might reasonably take them by surprise. Advocates are also expected to grant reasonable extensions of time and scheduling changes where they can do so without sacrificing the clients’ interests.
The exercise of discovery planning should not break off just because counsel disagree on the format of productions. There are very good reasons to co-operate to keep the costs down on both sides and to exchange productions electronically in a format that is searchable and easily portable into litigation software in use by each firm. This is particularly so when, as here, the vast majority of the documents are electronic documents that began life as e-mails, spreadsheets or electronically generated letters. In this regard, the Sedona Canada Principles and related information such as the Sedona Canada Commentary on Cost Containment or the Sedona Conference Co-operation Proclamation are useful resources.
Master MacLeod concluded that it would be inappropriate to deny the plaintiff costs of a motion to enforce undertakings when the plaintiff had attempted to propose a plan and when in reality, there was agreement on the exchange of affidavits of documents and on the dates for discovery. The only relationship between the plan and the undertakings is the failure to include any deadline for answering undertakings in the plan. Such a deadline was recommended as a critical component of discovery planning by the Ontario Discovery Task Force in November, 2003. A counsel of perfection would be one which would have included a deadline for answering undertakings in the discovery plan or in the undertakings themselves. A further alternative would have been to ask for a deadline in response to the correspondence promising the answers “shortly.” Any of these strategies might have avoided the need for a motion.
After discussing the requirements and expectations of lawyers and applying them to the case at hand, Master MacLeod concluded that there was no basis for a costs award different from that which would ordinarily result from such a motion. There was no basis to deprive the successful moving party of costs, nor was there a basis to award costs on a substantial indemnity scale.
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