Fridays With Rogers Partners

August 27, 2021

At our weekly firm meeting, Michael Kryworuk discussed the case of Sarta v. Mazo, 2021 ONSC 5660.

History of the Litigation

This matter arises from an action commenced by the Plaintiff, Mr. Sarta, against the Defendants, his former lawyers, for breach of contract and negligence in handling his tort and accident benefit claims from an earlier motor vehicle accident.

After three years of litigation, the Plaintiff brought a motion to compel the Defendants to produce a further and better affidavit of documents before examinations for discovery are set to take place in September 2021.

The Plaintiff alleged that several documents relevant to the facts in issue in this matter had not been properly disclosed to the plaintiffs as required by Rule 30.02 of the Rules of Civil Procedure.[1]

In contrast, the Defendants filed no responding materials other than their factum and argued that the only documents relevant to the issue of the reasonableness of the tort and accident benefits claims were the medical reports that had already been provided.

The Legal Test

Rule 30.06 of the Rules of Civil Procedure provides the court with the discretion to order a further and better affidavit of documents “where the court is satisfied by any evidence that a relevant document in a party’s possession, control, or power may have been omitted from the party’s affidavit of documents.”[2]

When considering whether to order a better affidavit of documents, the court will consider the principles that arise from the case law, such as from Gamble v Black & McDonald Ltd, 2020 ONSC 811. These principles include that:

  • Documentary discovery is an important tool in the litigation process;
  • The initial decision about what documents to produce is generally left up to the parties;
  • A motion seeking a further and better affidavit of documents is proper where there is evidence of missing documents;
  • Evidence that amounts to intuition, speculation and guesswork, however, is insufficient to justify an order for the service of a further and better affidavit of documents;
  • There must be evidence that specific documents exist that have not been produced.[3]

Analysis

The first set of documents requested by the Plaintiffs included correspondence between the parties and also with the Law Society of Ontario that had been included in the Plaintiff’s affidavit of documents but not in that of the Defendants. Master Robinson found that just because there are outstanding documents in the possession of a party does not automatically warrant their disclosure. His Honour ultimately found these correspondences to be irrelevant to the facts in dispute and declined to compel their disclosure.

The second set of documents requested included legal billing and accounting documents. His Honour was satisfied that the Defendants had in their possession documents relating to billing and accounting on the Plaintiff’s files as this is a requirement for all law firms to maintain appropriate accounting and financial records under the LSO’s bylaws. He was further satisfied that said documents were relevant to the proceedings and so ordered their production in a further and better affidavit of documents.

The third set of documents requested included internal firm documents related to Mr Sarta’s claim. To prove the existence of these documents, the Plaintiff’s supporting documentation affidavit used the words “in all likelihood” and “more than likely”.[4]

Master Robinson found this language too close to intuition, speculation and guesswork and declined to compel the production of these documents. Interestingly, His Honour shared the Plaintiff’s suspicion that these documents existed and would be relevant to the issues in dispute.

As such, the Defendants were warned that if following discovery there emerged evidence that the Defendants failed to comply with their production obligations under the Rules, future relief or costs could be awarded to the Plaintiff.

A fourth final set of documents relating to settlement correspondence between the Defendants and external insurers was also requested by the Plaintiff. Master Robinson was satisfied the documents existed because the documents produced by both parties already explicitly mentioned documents that were both relevant to the issues in dispute and yet were not included in the Defendant’s original affidavit of documents. As such, the Defendants were ordered to produce these documents as well.

Decision

After reviewing the record as to the existence and relevance of all the documents requested by the Plaintiff, Master Robinson ordered the Defendants to produce a further and better affidavit that included the documents relating to legal billing and accounting procedures as well as settlement correspondence.

However, all other requests for production were denied on the basis of either lack of relevance or lack of sufficient evidence of their existence.[5]

Takeaway

This motion was broadly successful for the Plaintiff, Mr. Sarta. For most of his document requests, he was successful at proving their existence and also their relevance.

This decision shows that parties need to conduct a thorough search of their records and disclose all relevant documents, or else they can face sanctions.

[1] R.R.O. 1990, Reg. 194, s.30.02

[2] Ibid, at s30.06

[3] Gamble v. Black & McDonald Limited, 2020 ONSC 811, at para 3.

[4] Sarta v Mazo 2021 ONSC 5660, at para 18.

[5] Ibid, at para 27.