[Updated] Just Say No! (To Refusals Motions)

RefusedOver at slaw.ca, Matt Maurer writes about “An Interesting Approach To a Routine Motion” referring to a recent decision of Justice David M. Brown of the Toronto Commercial List Court. In 1416088 Ontario Limited v. Deloitte & Touche Inc., 2013 ONSC 7303 (CanLII); Brown J. offered counsel two options in respect of refusals:

(i) Option A: I am prepared to write an endorsement which states that the parties have agreed to refrain from bringing refusals motions, but on the clear understanding that by so doing they will not be faced at trial with the submission by an opposite party that their failure to move on refusals should work against them. Under this scenario, if, at trial, an issue arises about a question refused, then the trial judge can consider the matter. If the trial judge concludes that the refusal was proper, so be it. If the trial judge concludes that the refusal was improper, then an adverse inference would be drawn against the refusing party for failing to disclose material evidence; or,

(ii) Option B: Alternatively, the defendants may deliver, to my attention, a motion record for a motion in writing no later than 5 p.m. tomorrow, Tuesday, November 26, 2013. The plaintiff shall deliver any responding motion record or materials, to my attention, no later than December 6, 2013. I shall deal with the motion as a motion in writing.

However, as indicated at the conference this morning, I wish to give the parties a “heads-up” that if they proceed by way of motion, I am considering approaching the issue of the costs of that motion on an “amount per refusal” basis, perhaps something in the neighbourhood of $1,500.00 per refusal. That is to say, if the defendants move on 8 refusals, but succeed only on two, they may risk adverse cost consequences of up to $6,000 (i.e. success on 2 refusals (+$3,000) less failure on 6 refusals (-$9,000), or a “net” adverse cost award of $6,000). At this point I simply am considering that as a possible approach to costs and wish to communicate that to the parties so they may shape their reasonable expectations about the cost consequences of a refusals motion accordingly. I suspect that by so focusing on the cost consequences of such a motion, the parties will take a sober look at exactly how many refusals are material for a fair determination of the issues at trial and require adjudication by this Court.

Refusals motions are generally a monumental waste of time—unduly prolonging the discovery process; cluttering up the transcript record; allowing counsel to engage in prolix colloquy (yes, guilty as charged).

Justice Brown’s approach makes eminent sense and will make counsel think twice before going on a “refusal-fest”.

In fact, I appeared before Brown, J. earlier this week and he offered an “Option ‘C'”:

Option C: The parties can identify those refusals in respect of which they wish to use Option A and those in respect of which they wish to proceed with a motion under Option B. I offer this third option recognizing that in some actions important, proper questions may well be wrongfully refused on an examination and that fairness requires an adjudication of those refusals in advance of the trial so that the actual disclosure of specific information occurs before trial, rather than simply relying on the drawing of an adverse inference. The number of such material refusals in any action usually is quite small, based upon my review over the years of transcripts filed by parties in other cases. The cost consequences outlined in Option B should operate to confine the number of argued refusals only to very material issues.

I proffer a more radical option: Option “D”:

In my view, the Civil Rules Committee should consider adopting an “object first, then answer” approach to examination for discovery, similar to the American approach to depositions by oral examination under Rule 30(c)(2) of the Federal Rules of Civil Procedure, which reads in part as follows:

› TITLE V. DISCLOSURES AND DISCOVERY › Rule 30. Depositions by Oral Examination

RULE 30. DEPOSITIONS BY ORAL EXAMINATION

(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

(2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

At a minimum, if the “object first, then answer” approach is adopted, then a refusals motion will become a vestige of the past. As it stands, Rule 30.05 of the Ontario Rules of Civil Procedure,which states that the “disclosure or production of a document for inspection shall not be taken as an admission of its relevance or admissibility”, addresses documentary discovery.

There is no principled reason why Rule 31.07 and Rule 34.15, both of which deal with sanctions for failure to answer on discovery,  should not be amended or replaced with a provision similar to Rule 30(c)(2) of the American Federal Rules of Civil Procedure. 

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