Friday, September 4, 2009

Inspection of Documents

In Timminco Limited v. Asensio, 2009 CanLII 9431 (ON S.C.) at

the plaintiff sued the defendant for damages for defamation. The plaintiff pleaded certain contracts. The defendant asked to inspect them. The plaintiff amended its pleading and scrubbed out the reference to the contracts. The plaintiff moved against the amendment as a an attempt to defeat the right of disclosure.

"...III. Decisions of Master Hawkins

[12] Master Hawkins released virtually identical reasons on November 17, 2008, ordering the production for inspection of the documents sought by both sets of defendants. Master Hawkins gave three reasons for his decision. First, the entitlement to inspect the documents “crystallized as soon as the defendants served the plaintiff with their request to inspect documents”. Rule 30.04(3) required a response “forthwith”. Timminco could not defeat the defendants’ crystallized rights by later amending its claim to delete references to those documents.

[13] Second, the Master rejected Timminco’s argument that production should not be ordered because both actions involved claims of defamation. He held that Rule 30.04(3) did not set forth any defamation exception.

[14] Finally, the Master held that to dismiss the motion would not be consistent with the policy embodied in Rule 1.04(1) to secure the just, most expeditious and least expensive determination of every proceeding. Were he to dismiss the motions, the Master contemplated that production of the contracts would be required during the discovery phase of the actions, raising the prospect of the defendants then amending their defences and adding unnecessary steps to the litigation...."


"...B.1 Effect of the amendment of the Statement of Claim
[22] Master Hawkins concluded that the defendants’ entitlement to inspect the requested documents “crystallized” as soon as the requests were served, and the plaintiff’s subsequent amendment of its pleadings could not defeat the requests. In reaching that conclusion Master Hawkins did not err; indeed, I agree with his analysis.

[23] Timminco pointed to a number of Federal Court decisions dealing with instances where a party, in response to a motion to strike out all or part of its pleading, amended its original pleading to cure the defect. The Federal Court held that the amended pleading stood in the place of the first, rendering the original pleading irrelevant for purposes of the motion: C.J.A., Local Union 2103 v. Canada, [1986] F.C.J. No. 823 (F.C.T.D.); Samsonite Canada Inc. v. Costco Wholesale Corp., [1992] F.C.J. No. 721 (F.C.T.D.).

[24] Those cases are distinguishable. Certainly a plaintiff can amend its pleading without leave before a defence is filed, and it makes sense that if a defendant moves to strike a claim as disclosing no reasonable cause of action, then a court should look at the most recent pleading of the plaintiff to assess the reasonableness of its claim. Timminco was entitled to amend it claim without leave in this case, and it did so. However, upon receipt of the defendants’ requests to inspect the contracts, Timminco became subject to an obligation imposed by the Rules of Civil Procedure to make available the documents for inspection within five days.

[25] Timminco could not relieve itself unilaterally from that obligation by amending its Statement of Claim. I say this for two reasons. First, courts should not interpret the Rules of Civil Procedure in a manner that would countenance their breach, which essentially is the position advocated by Timminco. Second, as the case law has made clear, the intent of the Rule is to provide the opposite party with the same advantage as if the other had reproduced the contents of the document in its pleading. Timminco’s position runs counter to that purpose of the Rule..."

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