Discovery
Continued From Page 9
proportionality, cost effectiveness and common sense to the
discovery process. The result is
anything but.
Setting aside the notion of a
forced agreement between liti-
gants, discovery plans immedi-
ately raise concerns. The scope of
what is to be agreed on and
reduced to writing in the discov-
ery plan is broad and ambiguous,
and includes “the intended scope
of documentary discovery…tak-
ing into account relevance, costs
and the importance and com-
plexity of the issues,” and “any
other information intended to
result in the expeditious and
cost-effective completion of the
discovery process…”
In personal injury litigation,
the vast number of issues respect-
ing discovery of documents, oral
examination for discovery and
medical examinations are
resolved in discussions between
counsel as professionals and offi-
cers of the court, without the
need for written plans. Personal
injury litigation also has inher-
ent checks and balances which
result in the proportionality and
expeditious cost-effectiveness
sought to be created by the dis-
covery plan.
Plaintiff counsel, who are
largely compensated on a contin-
gency basis, are motivated to use
their time to greatest effective-
ness in advancing their client’s
cases. Similarly, defence counsel,
who generally represent insur-
ers, are under pressure to mini-
mize legal expense and move liti-
gation forward. The interests of
lawyers and litigants in personal
injury actions mandate a propor-
tional approach to discovery.
Decision
based on
trial fairness
Medicals
Continued From Page 10
“It may be that keeping
a discovery plan up-to-date could consume
nearly as much time
and expense as the
discovery process itself.
expenses. Inevitably, there is no
agreement on such discovery
plans. What ensues are counter
proposals, strongly worded letters, a lack of agreement and
unnecessary expense and complication even before the discovery process.
Finally, the requirement to
keep a discovery plan continually
updated adds another layer of
complication and expense to
both plaintiffs and defendants in
personal injury litigation. When
the elements required to be
included in the discovery plan
under R. 29.1.03( 3) are considered, it may be that keeping a
John Jones is a founding
partner of Jones Harley Litigation Counsel LLP, a Toronto litigation boutique specializing in,
among other areas, personal
injury.
We want to hear from you!
E-mail us at: tlw@lexisnexis.ca ;
Lobl Mediation & Arbitration Services
Mediation
We look at all the angles to give you the
facts you need to make the right decision.
Extensive experience in
personal injury, insurance,
SABS, long term disability
and liability issues.
• Accident Reconstruction
• Metallurgy &
Material Science
• Litigation Support
• Civil Engineering
• Failure Analysis
• Fire Investigation
• Human Factors
• Industrial Plants
• Environmental
• Product Liability
• Forensic Science &
Chemical Analysis
• Film & Live Theatre
Accident Investigation
tions is to put the parties on a
basis of equality as nearly as it is
possible in terms of collecting
evidence of the injuries.” Justice
Seppi went on to note that “an
assessment over 2 years before
the trial would not be as helpful
to the trier of fact as is an up-to-
date assessment.”
The principal of fairness
emerged again as an important
consideration in Kernohan v.
York [2009] O.J. No. 886. In
Kernohan, a plaintiff again
refused a request for a defence
medical examination on the basis
that the defendant had agreed to
a trial date. Citing Aljoe and
Ortiz, Justice Cary Boswell stated
that the request for the defence
medical “must be determined
principally on the basis of trial
fairness.” To decide otherwise,
“would be to place form above
substance.”
The most recent case to con-
sider this issue is Rohit v. Nuri
[2010] O.J. No. 638. In Rohit,
Master Donald Short clearly sig-
nalled that the importance of
advancing a plaintiff’s case to
trial must be balanced with the
desire “to keep the playing field
as level as possible.” Referring to
the recent amendments to the
rules, Master Short emphasized
the importance of balance and
proportionality, and concluded
that defence counsel who cooper-
ate in setting a trial date ought
not to be strictly held to have
“consented to the action being
placed on a trial list” in the sense
contemplated by the rule.
The clear trend emerging from
these decisions is that in ordering
defence medicals, the court will
base its decision primarily on the
principal of trial fairness, even if
a defendant has agreed to a trial
date. The notion that a defendant’s right to a defence medical
can be thwarted under such circumstances, based on a technical
interpretation of the rules, has
essentially been rejected.
In doing so, the courts have
balanced a plaintiff’s right to a
trial within a reasonable period
of time and a defendant’s right to
a level playing field regarding
medical evidence at the trial. ;
1200 Bay Street, Suite 405
Toronto, Ontario M5R 2A5
(416) 367-5550, Ext. 22
rl@loblmediation.com
Rudy Lobl, Q.C.
Call today for a FREE
no obligation assessment.
1-800-387-1950
www.waltersforensic.com
Jim Davidson is an insurance
defence lawyer and a partner at
MacMillan Rooke Boeckle, a
Toronto law firm specializing in
insurance law. He is also a director of Canadian Defence Lawyers. His firm represented the
defendants in Ortiz and Rohit.
