Plaintiff Ordered to Pay Costs of Obtaining Documents in Fulfillment of Undertakings

In Endale v. Parker, 2022 ONSC 2008, the plaintiff, on an examination for discovery, undertook to provide medical records, but a dispute arose over who was required to pay for the records.

Rule 30.02(1) of the Rules of Civil Procedure provides: “[e]very document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document”.

The motion judge, Justice Valente, stated: “I accept the principle that each party must fund its own case. The obligation to produce documents as required by Rule 30.01(1) cannot be the responsibility of an adverse party who may have better financial means to source the documents”.

Justice Valente referred to the decision of Ho v. O’Young-Lui, 2002 CanLII 6346 (ON SC), wherein Justice Cullity held that “…the balance of the authorities at present appears to favour the view that, as a general rule, the expenses of a party’s productions are to be paid by that party in the first instance”.

Although some decisions have indicated that the defendant has to pay for medical records requested by it, Justice Valente said that most of these decisions predate the Ho v. O’Young-Lui case.

Justice Valente also referred to another decision which held that the payment of production of documents within a party’s power is simply the cost of litigation, subject to recovery of the disbursement depending on the trial result.

The plaintiff argued that a distinction should be drawn between documents produced prior to examinations for discovery and documents produced to fulfill undertakings. Justice Valente disagreed, stating that “[t]he obligations placed on litigants by Rule 30.02 are to be unconditionally applied throughout the litigation process”.

In the end result, the plaintiff was ordered to pay the costs associated with obtaining and providing the medical records in fulfillment of his undertakings, except for reasonable photocopying costs which the defendant had already agreed to pay.

Based on this decision, each party must produce, at his or her own expense, all relevant documents which are in his or her possession, control or power. This includes documents obtained to answer undertakings.