Skoblenick v. Aviva General Insurance Company is a recent decision that speaks to the conduct of counsel with regard to discoveries. The decision yielded three main takeaways:
- Counsel should aim to follow the spirit of co-operation whenever possible.
- It is reasonable to expect a party to recover costs thrown away pursuant to R57.07(1)(c) if, to accommodate counsel’s personal schedule, discoveries need to be rescheduled.
- Individuals being examined at discovery do not have an obligation to review the documents of an opposing party.
Issues
The case deals with two main issues:
- Whether counsel’s request to reschedule discoveries could form part of “costs thrown away,” pursuant to R57.07(1)(c).
- Whether terminating an examination for discovery can be justified under R34.14(1) if the party being examined did not review the defendant’s document prior to attending.
Facts
Discoveries relating to an insurance claim were initially scheduled for July 2020. Both parties agreed to reschedule them to a later date in August. A week before they were supposed to take place, plaintiff’s counsel informed defendant’s counsel that he would not be able to attend due to personal reasons. He asked for them to be rescheduled to a later date. Defendant’s counsel agreed.
The discoveries were rescheduled to November 2020 and set to occur over a two-day period. On the first day, defendant’s counsel aborted the discoveries for two reasons. First, they stated that the plaintiffs had not provided all the necessary documents. Second, defendant’s counsel alleged that the plaintiff had not prepared for discovery since they had not adequately reviewed the defendant’s documents.
Following this termination, the defendant filed a motion seeking “costs thrown away” for both the August and November discoveries pursuant to S131.1 of the Courts of Justice Act. They sought to recover $1000, the equivalent to 4.5 hours of work.
Decision
First, the court summarized principles relevant to determining whether costs for wasted preparation time could be recovered by a party. Namely, they cited a key passage from Nelson v. Chadwick which affirmed that (a) the purpose of ordering such costs is to indemnify, not penalize a party, and (b) apportioning costs which can be characterized as “wasted time” is largely an intuitive exercise that the court undertakes.
Upon reviewing the Bill of Costs submitted by the defendant, Justice D.A. Broad held that $400 (the time for 1.5 hours of work) was recoverable on a substantial indemnity basis. This was the cost associated with rescheduling the August discovery. The remainder cost of $600 (for 2.5 hours) spent preparing, was not counted as wasted time as the court inferred that some preparation could be carried over to the November discovery.
Notably, the court commented that it was reasonable to expect that such a request to reschedule may lead to a claim for costs thrown away. However, they emphasized that generally, a request to adjourn examinations – to accommodate counsel’s own schedule – should ordinarily fall within the scope of professional courtesy.
Second, the court dealt with whether costs of wasted time could be claimed if the party to be examined had not reviewed the opposing party’s documents. Citing R34.14(1), Justice D.A. Broad stated that that defendant’s counsel had wrongfully terminated the discovery. As it stands, there is no recognized duty to ensure that the plaintiff familiarizes themselves with opposing party’s documents.
As a concluding remark, Justice D.A. Broad stated that both motions could have been avoided if both parties acted in the spirit of cooperation, which is required for a successful discovery process. Accordingly, parties were advised to bear their own costs for the motion.
This summary was written with assistance from law student, Rutumi Tank.
