Rheaume v. Foster, 2021 ONSC 5804: Court Imposes Discovery Plan in a Simplified Rules Action

By Jonathan B. White Sep 16, 2021

In Rheaume v. Foster, Justice Boswell exercised the Court’s discretion and ordered a Discovery Plan in a motor vehicle accident case brought under the Simplified Rules. The parties could not agree on a plan, and disputed over the production of documents and associated costs. The decision is an important benchmark of best practices under the new amendments governing simplified procedure, and clarifies the intent of the amendments.  

The Plaintiff claimed general damages, expenses for attendant care and rehabilitation and loss of income. The Defendants prior to examinations for discovery requested various productions typically relevant to such MVA claims, including property damage documentation, the OHIP summary, treatment records, school records and the accident benefits file. The Plaintiff refused the request. She argued that she had already made “robust” disclosure sufficient for the Defendants to know the case they had to meet, and that further production requests could be address through undertakings at discovery. 

The Defendants brought a motion for the following relief: 1) an order that the Discovery Plan require that each party assume the upfront costs of their own productions; 2) an order that the Plaintiff produce a copy of the requisition to note the Defendants in default. 

Justice Boswell’s rulings emphasized expediency and cost-efficient decisions. First, he ordered that the Plaintiff produce the requested productions, even though the Defendants’ Notice of Motion inadvertently omitted the request. He found that his order did not prejudice the Plaintiff, and that it was consistent with the court’s mandate to secure “the just, most expeditious and least expensive determination” in the proceeding as it would likely avoid a later motion to compel undertakings. 

Significantly, in ordering the productions, he held that the 3 hour limit for oral discovery makes it imperative to have full disclosure before discovery. He held that this would improve the quality and efficiency of oral examinations and enhance the prospect of resolution. 

Third, regarding who should bear the costs of production, he ordered the Plaintiff to cover the costs.  He observed that while the authorities conflicted on the issue, Rule 76.03(1) of the Simplified Rules expressly required each party to serve its Affidavit of Documents and Schedule “A” productions at the party’s own expense.  

Finally, he dismissed the Defendants’ motion for a copy of the requisition noting in default, finding it irrelevant to the litigation. Overall, he admonished the parties for failing to follow the three C’s: cooperation, communications and common sense.    

The decision signals how the Court will follow the letter and spirit of the Simplified Rules in resolving discovery disputes. The 3 hour limit for oral discovery, maximum 5 day trial length and the cap on costs and disbursements aim to expedite litigation cases. Rheaume concludes that counsels’ actions should be commensurate with these principles when deciding whether documents are relevant, material and proportional to the litigation.   

Jonathan White is the author of this blog and member of the Simplified Procedure practice group at ZTGH. If you have a question about the Rheaume decision or a similar file, please contact Jonathan at 416-777-5204.

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