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but the results have been mixed at best. Friedman believes the proportional- ity principle was a typically Canadian response: "The way good Canadians do, we balance everything, and so propor- tionality should work," she says. Yet many U.S. counsel have told Friedman their approach is largely in line with Canada's vision of propor- tionality, and it simply hasn't worked. But she retorts that a lot of it has to do with individual courts' approach- es, rather than any overarching rules. Some judges and masters in Canada began conducting proportionality tests before new rules had even come into play. Unfortunately, most of them struggled with the idea that only mate- rials relevant to the litigation should be produced, and were uncomfortable balancing that right against other con- siderations. Now that proportionality is enshrined in rules, judges and masters have recognized that the test for pro- duction is no longer simply relevance, which has become only part of the cur- rent test in Ontario. "You're absolutely not entitled to it if it's not relevant, but if it's relevant you still may not be entitled to it," Friedman explains. "Because it has to be proportionate in terms of what it will ultimately mean for the resolution of the case, compared to all of the various burdens of obtaining it." No longer, for example, should litigants see situations that used to arise where masters would permit any discovery request barring obvious evidence of abuse of process. "Now they have the tools, so we're seeing decisions reflect- ing that," she says. Gordon Jermane, assistant vice presi- dent and counsel at Manulife Financial in Toronto, is one lawyer who has embraced this new approach to liti- gation. "We know, as litigators, it can help to bring matters down to the most important aspects of a case," says Jermane. "Whether we're talking about the discovery stage, trial, interlocutory motions, and ultimately costs that are awarded, we know that there's no area in litigation that can't be looked at through 20 • APRIL 2011 INHOUSE the lens of proportionality. It's really just limited by counsel's creativity." And because the rules are so new, litigators have only touched the surface of their many potential uses. "It's possible to take this thing much further, and to really come up with novel and interesting ways in how to deploy it," he says. Jermane has already experienced first-hand the benefits of proportional- ity. In one of his recent cases, counsel was able to compress what previously would have been a three-day trial into two days. The matter against Manulife was ultimately dismissed, at which point proportionality again came into play. Rather than receiving 49 per cent of its costs, Manulife received just 42 per cent, with the judge pointing to propor- tionality as a key consideration for the lower amount. While that award may sound like a step backwards, Jermane was pleased with the end result. "We succeeded at trial, got a very large mea- sure of our costs awarded to us, and ultimately everybody is happy because we all understand proportionality is a good thing for litigators. . . . We really have to ask ourselves if we can make things easier for ourselves and one another, and ultimately for the courts, by looking at things through that prin- ciple of proportionality." Yet he says one potential downside of the new principle could come down the line, when arguments may begin to arise suggesting proportionality threat- ens the right to a fair trial. If that does happen and due process is impaired, courts and litigators will need to revisit their approach. Jermane also believes the new rules will need to be tested with regard to the utility of discovery plans, short- ened examination for discovery, and other areas that are currently injecting front-end costs into the system. It's still too early to tell whether those efforts Master Donald Short's decision: canlii.org/en/on/onsc/doc/2010/ 2010onsc630/2010onsc630.html early on in the process will make way for more efficient litigation on the back end. There have already been cases where discovery agreements themselves became contentious documents that required a lengthy period of time to be agreed upon. It's likely that these issues will be ironed out as counsel become more familiar with the new rules, although some lawyers appear to be circumvent- ing the principle in the meantime. "All of these new rules really count on the co-operation and, in some ways, the civility of counsel," says Jermane. "So where you have counsel who wish to use the new rules as a tool to create inefficiency and create new costs into the process, I think the rules are sort of allowing for that right now." Rocco DiPucchio of Toronto's Lax O'Sullivan Scott Lisus LLP knows the added burden proportionality rules can place on litigants in complex cases. He helped draw up a discovery agreement — now required under Ontario's rules — as counsel to Enbridge Pipelines Inc. in a matter against BP Canada Energy Co. The agreement was applauded in a June 2010 decision by Ontario Superior Court Justice Colin Campbell, who served as chairman of Ontario's Discovery Task Force and is a mem- ber of the Sedona Conference advisory board. While the agreement was drafted before the new rules came into play, DiPucchio notes both parties and Campbell knew the proportional- ity principles were on the horizon, and kept them in mind when creating the plan. He notes it took the two sides about a year to negotiate terms of the discovery agreement, and suggests it's unclear whether the investment will pay off. "In these types of complicated commercial cases, involving hundreds of millions of dollars, we're not talking about discovery agreements that will take weeks to finalize, even when you're dealing with co-operative counsel," he says. "You may be talking months, or more, to reach agreement." In the end, that reality is in direct opposition to the