The Ontario Superior Court of Justice emphasizes the importance of document disclosure

In Premform Limited v. Heights Rental Construction Inc., 2023 ONSC 955, and in the context of a motion for directions and leave as required, Associate Justice Robinson of the Ontario Superior Court of Justice dealt with the admissibility of a project bid estimate that was not disclosed or produced, in accordance with governing rules.

The plaintiff/moving party, Premform Limited (“Premform”), brought a motion for directions on the late production and the admissibility of its project bid estimate in the litigation. In this case, Premform failed to disclose the bid estimate in its affidavit of documents and refused (without explanation) to produce it during examination for discovery.

Following examinations for discovery, Premform produced an expert report in support of its loss of productivity claim. The expert report relied on the project bid estimate (“Estimate”) (which was an internal Premform document containing allegedly confidential bid and pricing information) in calculating damages with the Estimate appended to the expert’s report.

The admissibility and reliance of the Estimate (which was always in Premform’s possession as opposed to subsequently discovered in the course of the litigation) was opposed by the defendant/responding party, Heights Rental Construction Inc. (“Heights Rental”), and the third party, Teskey Concrete Company Corp. (“Teskey”). In particular, Heights and Teskey argued that Premform made a deliberate and strategic decision not to comply with its discovery obligations to produce the Estimate, which was (always) a relevant document.

The Court was asked to address two issues on the motion, specifically:

1. whether Perform required leave to tender and rely on the Estimate; and
2. if so, whether leave should be granted.

In addressing the foregoing issues, the Court provided helpful commentary and guidance on production and discovery obligations in accordance with the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”).

Whether Premform required leave to tender and rely on the Estimate

The Court began its analysis of this first leave-related issue by noting that Rule 30.02(1) of the Rules requires a party to disclose in its affidavit of documents every document[1] relevant to any matter in issue that is or has been in its possession, control or power.[2] The Court noted that the Estimate was not produced in Premform’s affidavit of documents.

Premform argued that because the Estimate was not considered in its calculation of damages, it was not relevant at the time of disclosure and production via its affidavit of documents, and therefore, not captured by Rule 30.02(1).

The Court reaffirmed the well-established proposition that relevance of a document is determined by the pleadings in any given litigation.[3] The Court found that Premform’s Statement of Claim supported the relevance of the Estimate. Given that Premform’s claim was for increased labour, material and administrative costs associated with Teskey’s[4] supply of defective concrete mix, Premform’s Estimate was relevant to the actual impact of the additional work performed (including Premform’s work plan on the project versus the actual work performed) and to the quantification of Premform’s claim.[5]

Premform also relied on Rule 30.07 of the Rules in support of its position that leave was not required. Rule 30.07 requires a party to serve a supplementary affidavit of documents when it comes into possession of new relevant documents or otherwise discovers that the original affidavit of documents is incomplete.[6] The Court rejected Premform’s argument as it found that Premform made a deliberate decision to not produce the Estimate, and therefore, Rule 30.07 did not apply.[7]

Lastly, Premform relied on Rule 31.09(1) of the Rules in support of its position that leave was not required. Rule 31.09(1) permits a party to correct an answer given on its examination for discovery where the party subsequently discovers that the answer was incorrect or incomplete, or is no longer correct or complete.[8] The Court found that in this case, there was no subsequent discovery of information to correct or complete a response given at Premform’s examination for discovery. Furthermore, the Court noted that Premform did not give a response that was capable of being corrected within the meaning of Rule 31.09(1). Therefore, the Court rejected Premform’s reliance on Rule 31.09(1).

Whether Premform should be granted leave to rely on the Estimate

The Court began its analysis of this second issue by re-stating the principles related to Rule 53.08[9] of the Rules, and with respect to evidence being admissible only with leave. The Court noted that whether or not leave is granted is a discretionary issue and governed by a test, for which there are two components as follows:

(i) the onus is on the party seeking the indulgence to show a reasonable explanation for the failure to comply with the relevant discovery rules and (ii) that  ranting leave will not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment or cause any undue delay in the conduct of the trial.[10]

With respect to the first element of the test regarding reasonable explanation, Premform argued that in loss of productivity claims, damages may be measured in various ways, including (but not necessarily) by expert evidence, and therefore, it was reasonable to view the Estimate as irrelevant in the circumstances, where Premform’s damages did not initially rely on the Estimate in its calculations of its damages.[11] Premform argued that the Estimate did not become relevant until Premform’s expert employed a specific formula that relied on the Estimate for calculating damages. The Court ultimately agreed with Premform and found that its explanation was not unreasonable.

With respect to the second element of the test regarding prejudice to the opposing party, the Court held that there was no non-compensable prejudice. The Court found that while Teskey had a procedural right to understand the case to be met, a further examination of discovery would remedy the prejudice caused by the failure to produce the Estimate earlier in the litigation.[12] The Court, however, agreed with Teskey’s position that Premform’s non-compliance with its discovery obligation should not be without sanction.[13] The Court cited Rule 30.08(2) of the Rules which provides broad discretion for the court to determine an appropriate remedy for the failure to comply with production obligations. The Court determined that the appropriate remedy in this case was that the native version of the Estimate had to be promptly disclosed and that Premform be subject to further examination on its loss of productivity claim, including the Estimate, at its own expense and the opposing party’s cost of the motion were claimable in the cause.[14]

Key Takeaways

In addition to principles including avoiding a trial by ambush, it is paramount that parties comply with their production and discovery obligations when disclosing documents during the discovery process for purposes which include bridging gaps in information between adversaries, which in turn helps aid resolution of disputes.

The Premform decision is especially relevant for parties engaged in construction disputes, where there is an interplay between the Construction Act and Rules and where parties will often assert claims for delay and consequential damages[15] and rely upon expert reports to bolster their respective evidentiary records and claims. As illustrated in the Premform decision, parties must be aware of the fact that any documents referenced in an expert report may be deemed relevant by the court even if the document was not relevant at the time of disclosure and production, and therefore, subject to Rule 30.02(1) of the Rules. It is also prudent for parties to keep in mind and remember that the courts will turn to the pleadings to determine the relevance of a document.

The Premform decision also serves as an important reminder to parties to seriously consider their production and discovery obligations pursuant to the Rules when making decisions with respect to the disclosure of certain documents during the discovery process. The decision to exclude certain documents during the discovery process may preclude parties from later relying on those same documents, and leave from the court may be required (and denied). Furthermore, and in the event that the court does grant leave to a party to rely on a document that was not produced during the discovery process, the court may impose cost consequences.

Please contact a member of Miller Thomson’s Construction and Infrastructure Group if you have any questions.

[1] Under the Rules, a “document” includes data and information in electronic form.

[2] Premform Limited v. Heights Rental Construction Inc., 2023 ONSC 955 at para 7.

[3] Ibid at para 9.

[4] Ibid at para 10.

[5] Ibid at para 10.

[6] Ibid at para 13.

[7] Ibid at para 14.

[8] Ibid at para 16.

[9] Associate Justice Robinson noted that Rule 53.08 was recently substantively amended in 2022.

[10] Ibid at para 21.

[11]  Ibid at para 30.

[12] Ibid at para 23.

[13] Ibid at para 38.

[14] Ibid at para 40.

[15] Ibid at paras 10-11.