Proportionality in Discovery
In D. Crupi & Sons Limited v. Travelers Guarantee Company of Canada et. al. the Ontario Superior Court of Justice referred to proportionality in discovery. The Court considered that, while the former case law says that the Rules provide for questions "relating to any matter in issue", the new Rule 29.2.03 amendment to "relevant to any matter in issue" suggests that the scope of examinations for discovery has been narrowed.
The Court stated: "In determining the issues on this motion I have applied the relevance test set out in Rule 31.06. I am also mindful of the proportionality considerations set out in Rule 29.2.03. The general principles regarding the scope of discovery are set out in Ontario v. Rothmans Inc., [2011] O.J. No. 1896 (S.C.J.)..." This case included among its principles:
- The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings;
- The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded (i.e. "fishing expedition");
- The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds.
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