Letang v. Hertz Canada Limited

2015 ONCA 72

Released January 6, 2015

The Plaintiffs commenced an action against the Defendants on October 18, 2010 in connection with allegations that the Defendants failed to enter into a franchise relationship with the Plaintiff despite written agreements requiring the Defendants to do so. The Plaintiffs sought $3.5 million in damages.

At a second pre-trial on October 27, 2014, Speigel J. suggested that the Plaintiffs deliver certain back-up financial documentation to support their damages claims and their expert evidence. The Plaintiff produced these documents to the Defendants on December 3, 2014. The documents showed that the Plaintiffs made errors in their financial statements and hence in their damages calculations. The Plaintiffs argued that these documents disclose that they are entitled to additional $120,000 in damages. Instead of immediately having its expert review the records and conducting an examination of the plaintiff after receiving the new documents, the Defendants brought a motion returnable a week before trial was set to commence to adjourn the trial of the action for at least ninety days. Trial was scheduled to begin on January 12, 2015.

Myers J. dismissed the Defendants' motion. Myers J. criticized the Defendants' strategy. Myers J. indicated that "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." Myers J. further 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." In making these findings, the Court noted that 465 records provided by the Plaintiffs 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."

Coleman v. Neagu 

2014 ONSC 6331

Released December 4, 2014

The Defendants appealed the case conference endorsement and order of Master Pope in which the timetable was amended to provide for new dates for discovery, with the Defendants being discovered first. According to the timetable, the Defendants were to be examined first on February 27, 2014 in Hamilton followed by the Plaintiffs' examination for discovery on February 28, 2014 in Windsor. Due to the winter storm, the Plaintiffs' counsel advised that she would be unable to travel to Hamilton. She further advised the Defendants' counsel that she would agree to conducting the Examination for Discovery of the Plaintiffs the next day (as agreed upon in the timetable) on the condition that the Defendants' counsel disclose whether he had surveillance of the Plaintiffs and if so, the contents. Counsel for the Defendants argued that he did not receive the Plaintiffs' counsel's message and travelled to Windsor for the Plaintiffs' Examination for Discovery. Said Examination for Discovery did not proceed as the Defendants' counsel refused to agree to the Plaintiffs' counsel's condition.

In her endorsement, Master Pope ordered no costs payable to either side. Master Pope held that the Defendants' counsel failed to recognize the Plaintiffs' right to examine first (per timetable and Notice of Examination) and he should have contacted the Plaintiffs' counsel prior to travelling to Windsor to determine whether the Examination for Discovery would still take place.

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