Canadian Lawyer

44 J a n u a r y 2 0 1 5 w w w . C a n a D I a n L a w y e r m a g . c o m L E g a L r E p o rt \ L I t I g at I o n Let's be reasonable hen lawyers talk about proportion- ality, they're prone to metaphors. "David v. Goliath" is a popular one, not- withstanding the fact David actually won that fight. Allusions to the "scales of justice" are another common refrain. But maybe it's time to scrap the analogies. According to Kate Manning, a lawyer at Wortzmans and the chairwoman of the Ontario e-discovery implementation commit- tee, proportionality comes down to one simple concept. "It's all about being reasonable," she says. "Reasonable" isn't a word often asso- ciated with litigation. But the principle of proportionality has been slowly creeping into Canadian litigation. And through rule changes and court judgments, rea- sonableness is becoming the new nor- mal. All of this has been prompted by the explosion of data that individuals and companies have in the electronic age. "Given how easily electronic informa- tion is replicated and shared and stored, it's so overwhelming, and to do a full- blown, turn-over-every-stone exercise is very expensive," says Manning. While some courts have been try- ing to balance the discovery rights of parties with other factors for some time, the trend has accelerated since the Sedona Canada Principles were introduced in 2008. Shortly after, a number of provinces changed their rules of civil procedure to explicitly include proportionality as a guiding principle, especially when it comes to discovery. Meanwhile, the courts have been getting more aggressive on crack- ing down on litigants that don't create discovery plans or otherwise ignore proportionality. Earlier this year, Ontario Superior Court Master Donald Short, in Siemens Canada Ltd. v. Sapient Canada Inc., upbraided both parties for not estab- lishing a discovery plan before under- taking a costly and complicated discov- ery process, stating "the parties are the authors of their own misfortune in this case." His decision noted: "The time has come to recognize that the 'broad and liberal' default rule of discovery, has outlived its useful life. Proportionality must be seen to be the norm, not the exception—the starting point, rather than an afterthought." Speaking about the case at an Ontario Bar Association conference in the fall, Short provided some insight into how he decides proportionality issues. "What I have done is, if it's on the borderline, is say, if you really want it, you're going to pay for it," he said. "Or you're at least going to have this as an element that the trial judge is going to decide whether you need to have it." In Palmerston Grain, A Partnership v. Royal Bank of Canada, Ontario Superior Court Justice Alissa Mitchell Proportionality may be part of most rules of civil procedure now but courts are still seeing the concept being often ignored. By Arshy Mann W marco ciboLa

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