Master McLeod Reminds Parties to Look Way Ahead in Planning for Production

“Even at the pleading stage parties should have an eye on what issues will be raised by the litigation and therefore what will be the scope of production and discovery.”

This statement in a June 24th judgement by Master McLeod seems so trite, but is a worthy reminder given production can be so challenging that it seems like an end in itself and given the new mandate in Ontario that demands parties collaborate to achieve a production process “that meets the needs of the litigation,” no more and no less. Master McLeod imposed a modest costs sanction on a party for failing to work to narrow its production, including by producing the most obviously relevant records first. In doing so, he stressed the need to draw a link from the start between pleading, production and proof:

A party might be forgiven for not anticipating the need for documents made relevant by the other party’s pleading but there is far less excuse for not anticipating the documents required because of the party’s own pleading.

Secondly, related to the above, I am driven to the inference that there is no readily identifiable subset of documents which Allen Vanguard used to reach the conclusion there was misrepresentation and fraud.

Master McLeod ordered the producing party to pay $7,000 for breaching production obligations and failing to meet the times set out in court orders. He also noted, “The question of recovery of costs imposed by ultimately unnecessary production and discovery is specifically reserved to the trial judge.”

Hat tip to Peg Duncan!

L’Abbé v. Allen-Vanguard, 2011 ONSC 4000 (CanLII).

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