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News and Views — Case Comment on Dumais v. Hobbs

Dumais v. Hobbs |

2015 CarswellOnt 13797 |

Ontario Superior Court of Justice

In Dumais v. Hobbs (2015 CarswellOnt 13797), shareholders in a business had a falling out, and one shareholder demanded the others purchase his interest.  The specifics of his share entitlements and valuation were the subject of an application.   The law firm who drafted a complex series of documentation to execute the relevant transactions was made a defendant in a related action.  A motion was brought to consolidate the proceedings.  During the course of cross-examination in discovery, the applicant shareholder refused to answer certain questions, and a motion was brought to compel answers.   

 Master MacLeod felt that although refusal motions are often addressed from the bench, certain matters required discussion and written reasons.  Initially, he noted that the overlap of issues in the related proceedings meant that several questions asked on examination were relevant, and this was the basis for ordering several answers.  

Concern was expressed generally with the increasing use of the parol evidence rule in cross-examination.  The Master warned against using the doctrine  as a reason to refuse to answer questions about the intention of parties entering into contracts.  Relevant questions which give rise to admissible answers are to be answered, including  questions about what a witness understood to be the effect of a contract, or questions about the witness’s current understanding of the document.  Nor was this an issue of expert evidence.   In the case at hand, it was extremely unlikely that any of the related documents would stand on their own, making additional oral evidence regarding context relevant. 

Remarks in paragraphs 26 to 28, on the duty of counsel to engage collaboratively in the discovery process, were even more important.  A specific requirement was found that counsel should engage in meaningful discovery planning, rather than the “unfortunate squabbling” that had occurred previously. It had been argued that there was no requirement for discovery planning in the specific circumstances, because of the combined effect of the relevant Rules of Civil Procedure. Rule 29.1 makes discovery planning mandatory, but also provides what might appear to be an exhaustive list of applicable proceedings   - documentary discovery, inspection of property, medical examination, and discovery by written questions (Rules 30-33, and 35).  The cross-examination which led to the refusals, however, had been conducted under R. 39.04.  Although that rule contains a requirement that cross-examination be conducted with reasonable diligence, it is not strictly subject to the discovery planning requirements in R. 29.1.  

This was rejected as the governing interpretation for several reasons, including the overarching proportionality requirements  set out in R. 1.04. Master Macleod also found that “Even if the rules do not require it in every case, a “meet and confer” obligation may be inferred and it certainly may be ordered in the exercise of the court’s case management function.”  As a citation he referenced Friends of Lansdowne v. Ottawa, (2011 CarswellOnt 861), a judgment he himself authored. (The case might not be said to address the issue of inference, although it certainly makes an order to meet and confer.  As the relevant footnote appears at the end of the above-quoted sentence, the issue may be grammatical, and meant to apply only to the final 14 words of quotation. As MacLeod himself is the author however, deference can be afforded his own reading). 

Another basis for criticizing the “rancorous debate” between counsel that hampered proceedings was failure to observe the “3 Cs” from the commercial law list practice directions - communication, courtesy and common sense. Once again referencing a case he himself had authored, Kobre v. Sun Life Assurance Co. of Canada (2005 CarswellOnt 4862),  Master MacLeod stated these principles should not be restricted to the commercial list, but were applicable in the motions refusals in the case at bar.  It is not the first time a trier of law has invoked these “3 Cs” outside their original setting. In Carlsen v. Doherty-Carlsen Estate (2014 CarswellOnt 2707), for instance, Brown J. stated that they were applicable to Estates Practice.  

In the broadest sense, Dumais v. Hobbs could be taken to mean that the interplay between the individual Rules of Civil Procedure may subsumed in its more general principles, in the name of increasing the efficiency of litigation.  Lawyers wishing to avoid having to weigh abstract principles in an attempt to discern what is permissible, however, might simply apply common decency when dealing with their adversarial counterparts.  
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