Discovery and Proportionality

Rule 29.2.03 of the Rules of Civil Procedure is sometimes overlooked when counsel conduct discoveries and make production requests. This rule was recently considered in Gurprasad v. Kim, 2022 ONSC 5753. The rule states:

29.2.03 (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. 

Overall Volume of Documents

(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.

Therefore, relevant considerations when addressing questions on discovery or requests for productions include the time and expense of answering the questions or producing the documents, as well as the volume of documents.

Associate Justice Ilchenko referred to a decision of Justice Perell, where it was stated:

The proportionality principle is a manifestation of the policy of frugality that led to the introduction of the simplified procedure to the Rules of Civil Procedure. To use a metaphor, the normal Rules of Civil Procedure are the Cadillac of procedure, an expensive vehicle with all the accessories. However, not all actions or applications require such an expensive vehicle, and a Chevrolet, a serviceable, no frills vehicle, will do just fine for many cases, and it will provide access to justice and judicial economy.

In conducting discoveries and in making production requests, counsel should be practical and consider proportionality. Not every case requires every stone to be unturned. Doing so can make litigation too expensive.