Passing the buck: Payment for productions in a personal injury litigation – Civil law
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In the recent Endale vs. Parker,1the Superior Court of Justice clarified which party must pay to obtain documents, whether by recognizance or otherwise. This case will hopefully serve to settle this all too frequently contested issue in personal injury litigation.
In Endale, the Court granted the Defendant’s request to order the Plaintiff to respond to undertakings consisting of various medical records, to pay the costs associated with the responding undertakings, and to produce another and better affidavit of documents. The defendant had previously agreed to pay the reasonable costs associated with the reproduction, but argued that the plaintiff should pay the remaining expenses associated with the production.
Of the Rules of civil procedure,2 Rule 30.023 provides that any document relevant to the issues in dispute that is in the power, control or possession of the party must be produced. Rule 30.014 provides that a document is in the hands of a party when the requesting party has no right to obtain the original and the other party has the right to recover it.
The Court found that the documents requested by the defendant were clearly relevant and that the plaintiff had authority over them. The claimant’s argument that the documents were not in their control on the basis that the physician(s) could possibly deny the request based on the claimant’s best interests was not accepted, as no evidence was brought forward indicating that requests had been refused.5 The Court held that “…each party must finance its own case. The obligation to produce documents as required by rule 30.01(1) cannot fall on an opposing party who may have better financial means to obtain the documents.”6 Plaintiff’s argument that there should be a distinction between pre-discovery and post-discovery production was rejected. Instead, the Court ruled that Rule 30.02 must be applied unconditionally, regardless of the stage of the dispute. Barring “exceptional circumstances”, which require some degree of evidentiary support, there was no legitimate reason to deviate from the general rule that each party must fund its own case.
Takeaway meals from Endale that is, except in exceptional circumstances, the party in power, possession or control of the document is liable to pay for obtaining these documents. However, the cost of reproducing these documents, whether by photocopying or otherwise, may very well be borne by the requesting party.
1 Endale vs. Parker2022 ONSC 2008
2 Rules of Civil Procedure can be found on the Government of Ontario website
3 Scroll right to Rule 30.02 of the Rules of Civil Procedure
4 Scroll right to Rule 30.01 of the Rules of Civil Procedure
5 McInerney v. MacDonald1992 CanLII 57 (SCC),  2 SCR 138 at p. 154: “[â?¦] If the physician reasonably believes it is not in the patient’s best interests to inspect their medical records, they may find it necessary to deny access to the information.”
6 Endale to para 17.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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