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The Court of Appeal for Ontario dismissed an appeal from an order striking the appellants’ defence for repeated non-compliance with production orders in estate litigation.
The Tribunal denied production of the Commissioner’s Unlimited Plan Records because the timing and internal rationale of the Commissioner’s investigative steps and decisions to pursue or not pursue other providers are not relevant to the matters in issue; the Tribunal granted production in part of Third-Party Records because marketing plans, reports, research, competitive assessments, assessments of competitive impact and complaint-related communications from Bell, Telus and other third parties are relevant to consumer understanding and the Commissioner’s pleading of aggravating factors, and…
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Majority: The certification judge erred in the preferability analysis by failing to require the plaintiffs to demonstrate concretely how a single Federal Court class proceeding would fairly and efficiently adjudicate claims that depend on evidence and participation of provincial authorities that the Federal Court may not be able to compel; given jurisdictional and evidentiary limitations and the multitude of individualized issues across provincial regimes, the proposed Federal Court class action is not the preferable procedure and certification must be dismissed.
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Although the Orders were clear and the respondent had actual knowledge, the applicant failed to prove intentional non-compliance beyond a reasonable doubt because the respondent produced substantial materials, provided explanations and evidence of efforts to comply, and any earlier shortcomings were addressed; the court therefore exercised its discretion not to find contempt and declined to award costs.
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The court found the respondent in contempt for failing to produce required financial disclosure, awarded special costs, and left penalty issues for later.
Documents that are not HRM documents (Provincial Panel files) are not compelled from HRM and should be sought from the Province via FOI; HRM must comply with the existing Production Order to produce specified categories (including the Stantec Future Serviced Communities Background Studies) up to the motion cutoff date; limited further productions were ordered (confirmation whether Annapolis lands appear in the Highway 102 West Corridor map and production of growth projections shared with Halifax Water and Halifax Transit 2015-present); exhaustive searches for historic texts/Teams/messages acr…
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The court partially granted a discovery and production application, narrowed several requests as irrelevant or overbroad, and refused an interlocutory audit and amendment concerning a non-party section.
Tariff C amounts were insufficient to do justice given Southwest's conduct (loss of Allaway materials, improper assertion of privilege over bulk of discovery materials) and EllisDon's near-complete success; judge exercised discretion under Rules 77.07 and 77.08 to depart from the tariff and awarded a lump sum of $5,500 inclusive of disbursements payable forthwith and in any event of the cause.
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Motion under s. 6(7) of the Patented Medicines (Notice of Compliance) Regulations granted in part. The Court ordered production of unredacted ANDS/DMF materials and further stability and process data.
Appeal dismissed after the Court upheld dismissal of a negligence action for repeated non-compliance with discovery obligations and a consent order.
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