It is important to remember that you cannot expand the scope of discovery beyond the pleadings. The Ontario Superior Court recently reconfirmed that principal in Insite Construction Management Inc. v Ambient Mechanical Ltd. and held that substantive argument on the merits of the case cannot be used to establish the relevance of documents beyond what is set out in the pleadings.
This decision is a firm reminder that parties should draft their pleadings carefully, with a mind to scoping-in the evidence they will want to obtain from the other side down the line. Sufficient particularization is important to establish relevance.
Background
In this construction lien action, the plaintiff claimed for the value of work it said it performed for the defendant on a repair and renovation project of a commercial building in Toronto. The plaintiff alleged it developed a new work plan and methodology for the replacement of certain mechanical units, but the defendant denied the plaintiff performed any work at all.
Before examinations for discovery, the plaintiff brought a motion to compel the defendant to deliver a further and better affidavit of documents, to include documents the plaintiff said were relevant to cost estimating and actual costing on the project. It sought these documents in relation to the new work plan it said it prepared, as well as the original work plan prepared by the defendant.1 It asked for all documentation relating to sub-trade and supplier quotes, and estimates and costing on various specific items of work.2
Decision
First, Robinson AJ. noted that the discovery rules under the Rules of Civil Procedure applied in this case since the court had previously ordered documentary discovery.3 Robinson AJ. also noted that those rules had to be read in the context of the summary character of lien proceedings prescribed by section 50(3) of the Construction Act.4
Robinson AJ. applied the rule that the ambit of documentary production is determined by reference to the pleadings,5 and found that nothing in the pleadings made the documents sought by the plaintiff relevant:
None of [the paragraphs raised by the plaintiff] implicate project costs or cost savings from the Insite Plan. There is no pleading on what, if anything, was discussed on how Insite was to be paid for its services. There is also no pleading on how Insite's work enhanced the value of the premises beyond the blanket allegation that it did.6
Robinson AJ. agreed with the defendant that it was open to the plaintiff at examinations for discovery to probe the defendant's use and reliance on the plaintiff's work in order to ground the relevance of the documents it sought.7 If the plaintiff established relevance that way, it could then bring a motion if the defendant still refused to disclose.8
In reaching this conclusion, Robinson AJ. refused to engage with the substantive arguments put forward by both sides on the merits of the underlying claim, finding that these arguments went "well beyond the scope of [the] motion."9 For the same reasons, Robinson JA. also found that the plaintiff could not rely on their expert's proposed methodology to establish relevance that was not grounded in the pleadings.10
In short, it's all about the pleadings.
Footnotes
1. Insite Construction Management Inc. v Ambient Mechanical Ltd., 2024 ONSC 457 at para. 5(a).
2. Ibid at paras. 5(b)-(c).
3. Ibid at para. 4.
4. Ibid.
5. Ibid at para. 8.
6. Ibid at para. 14.
7. Ibid at paras. 12, 18.
8. Ibid at para. 18.
9. Ibid at paras. 11, 24.
10. Ibid at para. 16.
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