June 29, 2010

Proportionality, Pre-trial Disclosure

Filed under: Uncategorized — ruleswatch @ 8:19 pm

Toronto Information Law Blogger Dan Michaluk posts about proportionality in pre-trial discovery out of the Newfoundland and Labrador Court of Appeal. Thanks Dan! Thanks, Newfoundland Court of Appeal.

Chief Justice Green wrote:

[53]         For rules involving discretion, in this case the rules regarding pre-trial discovery and disclosure, this includes application of an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation.

[54]         Proportionality in this sense can be described as follows: The rules of court should be interpreted and used, by the lawyers and parties invoking them and the judges interpreting and applying them in situations involving the exercise of judicial discretion, in accordance with a principle of proportionality. That involves invoking a rule and conducting a procedure only in a manner that will promote, not frustrate, the underlying purposes and objectives of the rules as a whole. In other words, in the exercise of discretion relating to the application of the rules, a judge ought always to consider proportionality to ensure that a party invokes and applies the rules in a sensible and reasonable manner. This means dealing with a proceeding in ways such that the time and the types of processes involved as well as the expense and convenience of the parties are proportionate to factors such as: the nature of the issues engaged; the amount of money involved; the time reasonably necessary to resolve the issue; the complexity of the issues and the overall cost of the litigation that can be reasonably expected.

It is important to realize that such an obligation applies in all cases involving discretionary application of the rules, not only those cases that are considered complex or involve considerable cost.

The principle of proportionality apples to the parties as well as the court exercising a discretion under the rules. A party invoking a rule, taking a position or making an application that is ultimately determined to be not in accordance with the proportionality principle should anticipate that there may be adverse costs consequences.

Szeto v. Dwyer, 2010 NLCA 36 (CanLII).


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