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Civil Litigation - Discovery - Scheduling

. Ferguson v Yorkwest Plumbing Supply Inc.

In Ferguson v Yorkwest Plumbing Supply Inc. (Div Court, 2023) the Divisional Court considered an appeal from an order striking a defence for the defendant's misbehaviour, here in a wrongful dismissal action. In these quotes the court considers the sequence of the scheduling of discovery between the parties:
The Issue of Order of Examination

[24] The Defendant submits that the Associate Justice erred in law by finding that the party who first serves a notice of examination has the right to determine the order of examination. The Defendant had insisted that his client had the right to be examined first, and that he would then have 60 days to decide whether to examine the Plaintiff.

[25] The Associate Justice disagreed with the Defendant’s submission based on the schedule set by Justice Morgan which required all discoveries to be completed by February 28, 2022 and by the Defendant’s decision to offer the last possible day in the timetable. On the general question of order of examination, the Associate Justice found “that serving a notice of examination first preserves that party’s right to set the order of discoveries (see Ferguson v. Peel Mutual Insurance Co. 2017 ONSC 2318 at para. 12).”

[26] The Defendant on appeal submits that the observation made by Justice MacLeod in 1479021 Ontario Inc v. Hawkesbury (Town of) et al, 2020 ONSC 4570, discussed below, supports its position, and that the holding in Ferguson v Peel Mutual Insurance Co., at para. 12 is “obiter, and if so, wrongly decided.”

[27] Alternatively, the Defendant submits that the Ontario Rules are unclear as to which party has the right to determine the order of discoveries.

[28] Rule 31.04 of the Rules of Civil Procedure R.R.O. 1990, Regulation 194 provides that:
31.04 (1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after delivering a statement of defence and, unless the parties agree otherwise, serving an affidavit of documents.

(2) A party who seeks to examine a defendant for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after,

(a) the defendant has delivered a statement of defence and, unless the parties agree otherwise, the examining party has served an affidavit of documents; or

(b) the defendant has been noted in default.

(3) The party who serves on another party a notice of examination under rule 34.04 or written questions under rule 35.01 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise.
[29] In Ferguson, Justice De Luca considered Rule 31.04(3) and prior decisions of this court. He noted that “the desired practice is that the party who first initiates the discovery process should ordinarily have the option of examining first even if the party failed to serve a notice of examination first.”

[30] The Defendant submits that the Ontario rules are not clear as to the order of examination and it was an error for the Associate Justice to decide otherwise. Although not provided to Plaintiff counsel at the time, nor at the motion, on appeal, the Defendant relies on the decision in 1479021 Ontario Inc v Hawkesbury (Town of) et al, There, the parties brought motions in the aftermath of their four day examination for discovery plan falling apart. The defendant had made a last-minute request for a different representative, leading the plaintiff to cancel the examinations. Both parties sought their costs for the wasted time caused by the other. Justice MacLeod made several observations about Ontario’s discovery regime, including:
. Counsel are expected to discuss and adopt a discovery plan dealing with document production, examination for discovery and other related steps in advance of trial;

. The goal of a discovery plan is to avoid disputes, delays and costs, with counsel being duty-bound to continue discussions and making adjustments where necessary and reasonable;

. The Principles of Civility for Advocates, and the Rules of Professional Conduct contain guidance about civility and collaboration in procedural matters;

. Here, there was discourtesy displayed by both sides: by the defendants in seeking a last minute switch in representative and by the plaintiffs by “overreacting” and cancelling the discovery.
[31] Justice MacLeod stated, at para. 21:
I consider the unilateral decision to cancel discoveries to be unreasonable. The plaintiff has no automatic right to decide the order of examinations. Rule 31.04(3) provides that the person who first serves notice may examine first unless the court orders otherwise, but there is no rule that provides that any party may insist they be examined first or at the same time as other parties. Certainly, if it is possible to do so, agreement on the order of examinations, location of examinations and date of examinations is desirable. All counsel should be seeking a discovery schedule that is convenient, cost effective and reasonable for everyone concerned.
[32] Contrary to the Defendant’s submission, I do not see 1479021 Ontario Inc. as inconsistent with Justice De Luca’s decision in Ferguson. Each of these decisions were practical interpretations of Rule 31.04 as applied to the circumstances of each case. The first party to give notice, “may” examine first. Or not. The plaintiff does not have the “automatic” right to decide the order of examinations.

[33] Justice MacLeod was stating the obvious by saying that “there is no rule that provides that any party may insist they be examined first or at the same time as other parties.” The rule provides the court with the discretion to make other orders, but the overarching policy for civil discovery is the expectation that counsel work to agree on the logistics and do so in a timely, collaborative manner.

[34] Returning to the facts and the decision of Associate Justice Jolley, the Defendant objected to the order of examinations scheduled by the Plaintiff. When the parties disagreed, the Defendant did not substantiate its position, nor work to resolve the conflict. Although saying he was prepared to litigate the issue, counsel for the Defendant sought no Case Conference, nor did he bring a motion for directions.

[35] [sic]

[36] The manner in which this issue was used by the Defendant made it appear to be yet another “roadblock” employed to delay or frustrate the process. Justice Jolley found that the Defendant was not permitted to ignore the schedule and in this case, relying on Ferguson, the Plaintiff was entitled to complete her examination first (or not, as the corollary to that prima facie entitlement).

[37] Although this was not a motion to set the order of examinations of discovery, it is implicit in Justice Jolley’s reasoning that had she been applying r. 31.04(3) it would have been in favour of the Plaintiff for the reasons she gave for rejecting the Defendant’s submissions that it was in the right by insisting on the order of examinations.

[38] I conclude that Justice Jolley did not err in law in making this decision.


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Last modified: 22-06-23
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