On April 5, 2022 the motions judge ordered the plaintiff to pay the costs of delivering documents to fulfill undertakings save for reasonable photocopying costs. There was no evidence the plaintiff lacked the financial means to produce the documents. Production had a two-fold purpose: to prove the plaintiff’s case and to allow the defendant to determine the nature and extent of the plaintiff’s injuries.
This decision goes further than Trumble v. Soomal, 2020 ONSC 8097 which only dealt with pre-examination for discovery production of documents, not undertakings arising from discovery. This decision is a disaster for plaintiffs.
In paragraph 22 Justice Valente said the plaintiff must pay the costs associated with the “delivery” of the documents which would seem to be he contemplated by-passing the Rule which permits the “inspection” of the documents at the solicitor’s office or some other convenient location between the hours of 9:00 am, and 4:30 pm, and the making of copies at the defendant’s expense, which really is our last lever to use for persuading defendants to pay for productions.
It is perhaps just a matter of time before the inspection Rule is redrafted to reflect the reality that most documents now are in electronic format.
As Jordan Palmer has pointed out, leave to appeal Justice Valente’s Order was denied on July 12 by the Divisional Court (Swinton, Stewart and Nishkawa JJ.). The Endorsement gives no reasons.
