Endale v. Parker, 2022 ONSC 2008

The defendant in this motor vehicle action brought a motion to compel the plaintiff to answer undertakings resulting from his examination for discovery, to pay the costs associated with obtaining the documents required to satisfy the undertakings, and to produce a further and better affidavit of documents. Justice Valente granted the motion, holding that any documents within the plaintiff’s “power” were to be produced at the plaintiff’s expense (save for reasonable photocopying charges which the defendant agreed to pay). Justice Valente accepted the principle that each party must fund its own case, and directed that the obligation to produce documents under Rule 30.01(1) cannot be the responsibility of an adverse party who may have better financial means to source the documents. There was no evidence before Justice Valente to support a departure from this general rule.

Aldea v. Levy, 2018 ONSC 6162

In this case, the Plaintiff listed numerous documents in Schedule “A” of her Affidavit of Documents, but refused to produce a number of them for inspection as they were not in her possession (i.e. doctor’s records). The Plaintiff advised that she would produce the documents if the Defendant agreed to pay for them. The court rejected this position stating that a party who has listed documents in Schedule “A” of the Affidavit of Documents has an obligation, at a minimum, to produce the documents for inspection. The court stated that by listing the documents in Schedule “A”, the Plaintiff had sworn that she did not object to producing them for inspection. She could not now object to their production or impose terms on when they would be produced. The court also noted that it was not the Defendant’s responsibility to fund the Plaintiff’s lawsuit.