Court Rejects “Old Brain Thinking” in Key Proportionality Analysis

The Test is no Longer “Perfect Discovery”

In a ringing endorsement for the proportionality principle and a wake-up call to counsel, the Ontario Superior Court of Justice denied an adjournment request made by the defendant following delivery of additional records by the plaintiff a month before trial.  In doing so, in Letang v. Hertz Canada 2015 ONSC 72, Justice Myers held that: “There does not need to be perfect disclosure and perfect discovery on every path and alleyway in order to achieve a fair and just outcome of the case on the merits. The Supreme Court of Canada has ruled that the goal of achieving a fair and just civil dispute resolution process becomes illusory unless it is proportionate, timely, and affordable.”

At the suggestion of the pre-trial judge, the plaintiff had produced 465 additional records to back-up his damages claim.  Instead of immediately having its expert review the records and conducting an examination of the plaintiff, the defendant brought a motion to adjourn the trial for 90 days, returnable  a week before the trial was scheduled to start.  The court denied the request.  In doing so, Justice Myer criticized the defendant’s strategy: “The idea that the defendants can ignore a trial date and sit on material for a month without bothering to call their expert and just deliver another fat motion record to buy 90 days of unlimited discovery time for more fishing for documents is old brain thinking.”  The court applied the proportionality principle, found that it requires a balancing and that “in this case, the fair and just result is to get on to trial next week….Procedural gamesmanship, incessant delay, and discovery without end have brought the civil justice system to the brink of a crisis.”

In making these findings, the court noted that 465 records was not a significant amount of documents in the “information age” in which counsel routinely deal with cases involving tens of thousands of records. Dealing with large amounts of client information is now a “core legal skill.”

Finding that the defendant could achieve the same result at trial in terms of testing the credibility of the plaintiff’s claims as it could with the requested “unlimited” discovery, the court held that the delay of the trial would be prejudicial to the plaintiff, which was not proportionate. “Delay at all stages should be recognized as a serious form of prejudice that undermines affordability and proportionality and rots the uncompromisable goals of fairness and justice.”    The court did order that the plaintiff attend that week for no more than two hours of further discovery and the trial proceed as scheduled.

​The idea that there should be “perfect” discovery in every case is outdated.  Ontario’s courts have been clear – the proportionality principle must be applied and a fair and just result will often mean going to trial without perfect disclosure. Letang makes it clear that parties who ignore proportionality in their litigation strategy, do so at their peril.