Adams v. Body Plus, 2024 ONSC 315

By: Fahad Warraich

Rule 29.1.03 of the Rules of Civil Procedure requires that parties to an Action, who intend to obtain evidence under any of Rules 30 – 35 draft and agree upon a Discovery Plan following the close of pleadings.  In the recent decision of Adams v. Body Plus Nutritional Products et al., 2024 ONSC 315, his Honour Associate Justice Rappos made clear that parties who execute a Discovery Plan under Rule 29.01.03 must meet their obligations to abide it or risk exposing themselves to sanction from the Court.

In Adams, the Plaintiff moving parties sought an Order for service of a further and better affidavit of documents under subrule 30.06(b) of the Rules on the grounds that the Defendants were in default of provisions of a Discovery Plan which had been negotiated and to which the Defendants had agreed.

In considering the Motion for a further and better affidavit of documents, Associate Justice Rappos noted that the parties had engaged in nine-months of negotiation respecting the Discovery Plan, and had ultimately agreed on a Discovery Plan which identified a list of topics in respect of which the parties were required to produce corresponding documents in their respective possession, control or power. The Defendants produced a total of 550 documents, most of which the Plaintiffs alleged to be either marginally relevant to the litigation and/or otherwise entirely unrelated to the agreed upon topics as set out in the Discovery Plan. In particular, the Plaintiffs alleged that the Defendants failed to produce a single document in relation to a number of the agreed upon topics, and that it appeared that insufficient steps had been taken by the Defendants to conduct a diligent search of their records to produce all relevant documents. 

In response, the Defendants took the position that the productions sought by the Plaintiffs were neither proportionate nor relevant. The Defendants also relied on certain provisions of the Discovery Plan which stated, among other things, that the parties may need to adjust the Discovery Plan as the matter evolves. Broadly speaking, the Defendants argued that Discovery Plans are not designed to pre-emptively settle all discovery-related disputes.

Associate Justice Rappos granted the Plaintiff’s Motion and Ordered the Defendants to serve further and better affidavit of documents.  His Honour found that the Defendants had not produced any documents relating to three of the topics set out in the Discovery Plan, and that the Defendants’ productions in general were more limited in scope than that which was set out in the Discovery Plan.

His Honour’s reasons also disclose the Court’s concern that the Defendants had participated in nine-months of negotiating the Discovery Plan, only to then take the position that some of the topics set out in that Discovery Plan were disproportionate and would lead to overproduction. This stance was, in the Court’s view, contrary to the spirit of Rule 29.1, which encourages discovery as a collaborative, rather than a contentious, process. The Court noted that while the positions taken by the Defendants might have been appropriate had the imposition of those terms within the Discovery Plain under subrule 29.1.05(2) been resisted, it is decidedly inappropriate to negotiate a discovery plan to only thereafter argue against its terms.

On disposition of the Motion, the Court ultimately granted $30,000.00 in costs to the Plaintiffs, serving as a reminder of the consequences of parties failing to comply with discovery obligations and the Courts’ willingness to impose sanctions to enforce compliance of the same.