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The Barenaked Ladies and Your Right to Procedural Fairness

There has been a debate in case law in recent years regarding the test for obtaining leave to initiate or continue any motion or form of discovery without leave of the court under subrule 48.04(1) of the Rules of Civil Procedure. The more established test requires the moving party to show that there has been a substantial or unexpected change in circumstances while the other, more liberal approach focuses on whether the order sought is necessary in the interest of justice. The decision in BNL Entertainment Inc. et al v. Ricketts et al, 2015 ONSC 1737, is the latest example of the latter approach.

Rule 48.04(1) states as follows:

48.04 (1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

The facts are as follows.

The plaintiffs sued their former accountants for providing negligent accounting and tax-related advice. The individual plaintiffs are members of Barenaked Ladies. The corporate plaintiffs are the band’s operating and touring companies. The action was commenced in 2007. Both sides were content to hold the matter in abeyance for a number of years such that the issues involving the plaintiffs’ alleged damages could be clarified. None of the parties appeared particularly concerned about the delay. They all failed to comply with a timetable order made in September 2012.

The plaintiffs’ former counsel delivered their trial record in June 2013. They apparently did not instruct their counsel to do this and were unaware of the consequences of setting an action down for trial. The plaintiffs served their affidavit of documents in January 2015. As of February 2015, the individual defendant still had not delivered his affidavit of documents. For some reason, discoveries did not take place at all.

Counsel for the individual asked the court to infer that the plaintiffs made a deliberate decision to waive their discovery rights and set this action down for trial.

As stated above, Master Muir, who heard the motion, preferred the broader approach. In his view, it was desirable for the court to apply a flexible test when exercising its discretion to grant leave under rule 48.04(1), consistent with the principle of full pre-trial disclosure when discovery rights are in issue.

In his decision, Master Muir relied on the principles enunciated in Court of Appeal’s decision in Iannarella v. Corbett (2015), 124 O.R. (3d) 523, which was released just three days before this motion. In that case, the Court of Appeal emphasized the importance of pre-trial production and discovery for reasons of efficiency and fairness and stated that a waiver of discovery rights must be express and not simply implied solely from the fact that an action was set down for trial. The Master read Iannarella as having affirmed the view that discovery rights are at least partly substantive and not merely procedural in nature.

The court also noted that the individual defendant was at fault for not having delivered an affidavit of documents. This was a mandatory obligation on every party to an action. The plaintiffs could not have arrived at an informed decision to waive their discovery rights without even being aware of the individual defendant’s documentary evidence. While the plaintiffs could have tried to compel the individual defendant’s delivery of his affidavit of documents, it was clear that both sides were content with the delayed prosecution of this matter. The Master wrote that the plaintiffs’ lack of diligence did not relieve the individual defendants of his obligations under the Rules. The spirit of this statement appears consistent with the view that a waiver of discovery rights must be express rather than implied.

There can be no justice without procedural justice. While litigants should have as much certainty as possible as to what each step in litigation will be and when these steps will be taken, every case has its unique facts. The rules ought to be interpreted with the goal of promoting substantive and procedural justice in mind.

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