When advancing claims involving SIU matters it is essential that parties act proactively and with clean hands.  This means being alive to and meeting the obligations imposed under the Rules, as a failure to do so can have significant consequences later in the litigation process.

In his February 2014 Decision (2014 ONSC 4598) Master Short clearly illustrates the notion that even though counsel may think that adjudicators were born on a day, that day wasn’t yesterday.  In the pre-amble of his decision Master Short quotes William Shakespeare’s As You Like It: All the world’s a stage, And all the men and women merely players (Act 2 scene 7).  Truly, when dealing in matters of alleged fraud one must do more than simply pretend one is acting in good faith. 

This decision involves an insured, SA, making a claim under his automobile policy arising from what he asserted was a single car accident.  His insurer, Economical, paid the claim in the normal course.  Economical subsequently came to believe that SA was involved in a staged accident, and so brought a claim against SA seeking recovery of $100,000.00 (under the Simplified Rules).  This motion before Master Short pertained to the stalled litigation in this matter seeking recovery from SA. 

Prior to the booking the discoveries Economical served an Affidavit of Documents, and asserted privilege over a number of items.  Counsel for Economical provided, upon request from SA’s counsel, further clarity as to its privilege claim, and withdrew privilege over a number of documents.  Following this, and only on the eve of discoveries, SA’s counsel took issue with the productions.  Economical’s position was that it has provided the documentation relevant to the action prior to and in anticipation of discoveries, though SA’s counsel insisted, just prior to discoveries and without providing any particulars or support, that Economical was withholding relevant documentation.  As a result of this argument counsel for SA advised the Economical that SA would not be in attendance at his long scheduled Examination for Discovery, which led to counsel for Economical sending a junior to secure a Certificate of Non-Attendance on the appointed day.  Despite his counsel’s prior position that he would not be produced, SA actually attended at discoveries, and then SA’s counsel insisted upon costs thrown away when Economical advised that due to the previously exchanged communications they were not able to proceed with discoveries.

For the purposes of this commentary the detailed specifics of the case are not totally necessary, though it is interesting to see the lengths that parties may go to in order to try and frustrate the litigation process.  In short, Economical brought a motion to compel SA to re-attend for discovery, and an order striking SA’s defence in the event he failed to attend at the further Discovery date.  Two months after the motion records was served counsel for SA issued a responding motion record containing a notice of motion seeking to adjourn Economical’s motion to the same date as their cross-motion for “costs thrown away and to compel productions”.  Ultimately the initial return date was adjourned, and two months later Master Short heard submissions on the two motions.

Both sides blamed the other for the previously booked discoveries, and the litigation itself, being frustrated.  Master Short saw through all the drama, believing that Counsel for SA’s conduct has been disingenuous, hence the preamble to his decision.

The most important component of the motion and Master Short’s decision involves a discussion of Rule 76, which imposes clear obligations on counsel, and potentially dire consequences at trial if a party fails to meet its obligations under the Simplified Rules.  Under Rule 76.03:

(1)  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. 

(2)  The affidavit of documents shall include a list of the names and addresses of persons who might reasonably be expected to have knowledge of matters in issue in the action, unless the court orders otherwise. 

(3)  At the trial of the action, a party may not call as a witness a person whose name has not been disclosed in the party’s affidavit of documents or any supplementary affidavit of documents, unless the court orders otherwise. 

(4)  The lawyer’s certificate under subrule 30.03 (4) shall include a statement that the lawyer has explained to the deponent the necessity of complying with subrules (1) & (2). 
Counsel for SA doubted they had complete productions, but Counsel for Economical adamantly stated in their motion materials that full productions had been disclosed.   In signing an Affidavit a party explicitly confirms they are sharing, to the full extent of their knowledge, all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.  Master Short felt that it would be inappropriate to order Economical to provide a further and better affidavit of documents, but correctly pointed out that Economical could run into trouble at trial if it is subsequently established that further documentation existed at the time of this motion.

This case is instructive for highlighting the importance of complying with the obligations in a Simplified Rules matter.  Take great care to ensure that a file is well organized and that there is a plan for the conduct of litigation prior to issuing a claim, because soon after the close of pleadings parties must share comprehensive affidavits of documents, and also provide a list of potential witnesses.  Failure to meet the terms of Rule 76.03 could result in a party being unable to rely upon evidence at trial, or to call a central witness.  It would truly be a shame to have an SIU file fail at trial simply because insufficient care was taken at the outset of investigation and commencement of a claim. 

If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222