A common occurrence in a litigation file is the refusal of a
question posed during an examination for discovery. In some cases,
the evidence underlying the question refused could be pivotal to
the outcome of the litigation. In other cases, the answer to
that question, while it may appear important in the discovery
phase, may ultimately have minimal or no impact on the issues at
trial. In determining whether a motion to compel the refusing
party to answer the question is warranted, one will have to
consider the relevance of the question to the issues in the
proceeding, the inevitable delay associated with the scheduling of
the motion and the risk and associated additional legal fees
associated with bringing such a motion, particularly where the
refusals are numerous.
Option A: His Honour would write an endorsement
which states that the parties have agreed to refrain from bringing
their respective refusals motions on the understanding that neither
side could argue at trial that this should be construed against the
other party. At trial, if an issue arises relating to a
question refused, then the trial judge could consider the matter in
the context of the trial. The trial judge could then either
conclude that the refusal was proper or it was improper and that an
adverse inference would be drawn against the refusing party for
failing to disclose the material evidence;
Option B: The parties would deliver
motion records for their respective refusals motions which would be
dealt with in writing. If this method is chosen, costs would
be awarded against the unsuccessful party on an "amount per
refusal basis" ($1,500.00 per unsuccessful refusal, payable in
30 days). In the example given by His Honour, if a party
brings a motion in respect to eight (8) questions refused, but
succeeds on only two (2), the moving party would face adverse cost
consequences of up to $6,000.00 ($3,000.00 for the moving
party's success on two (2) refusals, minus $9,000.00 for the
unsuccessful six (6) refusals);
Option C: The parties can opt for a
hybrid approach in which they would identify those refusals to be
dealt with by way of Option A and those that they wish to pursue
under Option B.
As noted by Mr. Justice Brown, the number of material refusals
in any action is usually quite small. Accordingly, this novel
approach to address time consuming refusals motions may contribute
to a more thoughtful and more reasonable approach to refusals
motions by litigants. Parties opting for Option B will
have to weigh and assess the net benefit (both from an evidentiary
and economic perspective) and that could be achieved in bringing a
refusals motion. As stated by Mr. Justice Brown, this method
affords the parties "an opportunity to take a sober look at
exactly how many refusals are material for a fair determination of
the issues at trial and therefore adjudication by this Court".
While some counsel may object to the fact that Mr. Justice
Brown's approach completely eliminates the ability to make oral
submissions on a refusals motion, the "upside" is a
speedier resolution, (hopefully) reduced cost and certainty as to
the calculation of risk.
It will be interesting to see how courts outside the Commercial
List react to Mr. Justice Brown's approach to refusals
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