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Relevant, Probative, and Persuasive - Guidelines for Documentary Discovery

By: David Himelfarb

Document Discovery Guidelines

In the interest of fairness, parties involved in the civil litigation process in Ontario have a continuing obligation to disclose relevant documents to opposing parties. The obligation exists independently of production requests arising out of an oral examination for discovery. Depending on the nature of the action and the issues at play, the number of documents voluntarily exchanged and/or requested can be voluminous. Not surprisingly, the time required to produce and review the documents results in increased costs for all sides.

In 2003, the Task Force on the Discovery Process in Ontario suggested several amendments to the Rules of Civil Procedure concerning discovery. The suggestions were adopted by the Civil Justice Reform Project chaired by the Honourable Justice Osborne. On January 1, 2010, the Rules were amended to require that parties take into consideration the concept of proportionality in discovery.

Rule 29.2.03 states that:


(1) IN MAKING A DETERMINATION AS TO WHETHER A PARTY OR OTHER PERSON MUST ANSWER A QUESTION OR PRODUCE A DOCUMENT, THE COURT SHALL CONSIDER WHETHER,
          (A) THE TIME REQUIRED FOR THE PARTY OR OTHER PERSON TO ANSWER THE QUESTION OR PRODUCE THE DOCUMENT WOULD BE UNREASONABLE;
          (B) THE EXPENSE ASSOCIATED WITH ANSWERING THE QUESTION OR PRODUCING THE DOCUMENT WOULD BE UNJUSTIFIED;
          (C) REQUIRING THE PARTY OR OTHER PERSON TO ANSWER THE QUESTION OR PRODUCE THE DOCUMENT WOULD CAUSE HIM OR HER UNDUE PREJUDICE;
          (D) REQUIRING THE PARTY OR OTHER PERSON TO ANSWER THE QUESTION OR PRODUCE THE DOCUMENT WOULD UNDULY INTERFERE WITH THE ORDERLY PROGRESS OF THE ACTION; AND
          (E) THE INFORMATION OR THE DOCUMENT IS READILY AVAILABLE TO THE PARTY REQUESTING IT FROM ANOTHER SOURCE.
(2) IN ADDITION TO THE CONSIDERATIONS LISTED IN SUBRULE (1), IN DETERMINING WHETHER TO ORDER A PARTY OR OTHER PERSON TO PRODUCE ONE OR MORE DOCUMENTS, THE COURT SHALL CONSIDER WHETHER SUCH AN ORDER WOULD RESULT IN AN EXCESSIVE VOLUME OF DOCUMENTS REQUIRED TO BE PRODUCED BY THE PARTY OR OTHER PERSON.

Stemming from the proportionality principle, the test under the Rules for documentary discovery was changed from “every document relating to any matter in issue in an action” to “every document relevant to any matter in issue in an action.” The change was intended to provide a clear signal that restraint should be exercised in the discovery process. Specifically, the amendments were designed to curb instances where counsel abuse the discovery process by making excessive requests.

It was expected that the change in wording would lead to judicial interpretations over the word “relevant.” A recent decision from the Ontario Superior Court of Justice provides perhaps the most useful definition of the relevance test and will no doubt be cited by counsel on a moving forward basis. In Webb v. Jones, 2011 ONSC 2479 (S.C.J.), the plaintiff was injured in a motor vehicle accident. At issue was the pre-accident health of the plaintiff. The defendant moved for an order for production of the plaintiff’s medical records including three years of pre-accident medicals related to post-accident complaints.

In the endorsement of the court, the Honourable Justice Pierce held that a document is relevant “...if it has probative value; if it is logically connected to and tending to prove or disprove a matter in issue. In other words, it must have persuasive value concerning an alleged fact.” However, her honour was mindful of the fact that defence counsel was not “to go on a fishing trip through the plaintiff’s medical history” but rather “target specific types of complaints and question whether these arise from a pre-existing condition.”

The court ordered that the requested medical documents be produced. In arriving at its decision, the court was satisfied that the documents requested by defence counsel were relevant to the plaintiff’s medical condition and the damages that would be claimed at trial. Moreover, the documents were required for trial preparation by both parties and would allow the jury to have the most current information about the plaintiff’s medical condition. Finally, the court reasoned that the production of medical information would be useful in aiding settlement discussions.

In summary, the Webb decision provides a useful context to determine whether a document is relevant to an issue in play. Relevant documents have probative value, going to prove or disprove an in-play issue, and must have persuasive value concerning an alleged fact.

For assistance with a personal injury or insurance claim, please email David at dhimelfarb@himprolaw.com. To be contacted immediately call 1-855-446-7765 for a free case evaluation.

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