White v. Winfair Management Ltd., 2005 CanLII 13037 (ON S.C.)

  • April 21, 2005

Date: 2005-04-21 Docket: 03-CV-246818CM2 Master Ronald Dash. | Link

[9] The choice as to what documents in a party's possession are relevant and should be produced is in the first instance up to the party making production. This is subject to abuse, as a party may not disclose relevant documents, either by design or because of a genuine dispute as to semblance of relevance. The onus then is on a party alleging that relevant documents have been omitted from an affidavit of documents to lead convincing evidence, as opposed to mere speculation, as to the existence and relevance of the documents sought. Often this evidence is obtained by conducting an examination for discovery and asking questions as to the existence of documents, although it is not necessary to first conduct discoveries if convincing evidence otherwise exists: Bow Helicopters v. Textron Canada Limited (1981), 23 C.P.C. 212, [1981] O.J. No. 2265 and RCP Inc. v. Wilding [2002] O.J. No. 2752. The plaintiff herein has asked for a wide scope of corporate and financial records, a substantial portion of which may bear no relevance to the issues herein. Although the plaintiff has provided some evidence that records likely exist as to the financial and corporate relationships among the defendants, an examination for discovery of the defendants could have revealed the precise documentation available and help narrow what documents are relevant to the issues pleaded. I agree with Master MacLeod in RCP Inc. v. Wilding at p. 4 that when dealing with wide categories of business records it may not be possible to determine the extent or depth of the required productions until preliminary questions have been asked at an examination for discovery or a preliminary level of production of a category of documents have been made, then followed by examinations and possibly a follow up motion for a further level of production. The plaintiff has determined to forgo the opportunity to conduct an oral discovery by delivering a trial record, thereby complicating the process of determining the proper documentary disclosure.