Page 12 - ILCO March 2016 Newsletter
P. 12
WHAT IS PROPORTIONALITY, ANYWAY?
The Honourable Colin L. Campbell, Q.C.
Proportionality has become the buzz-word (particularly documentary discovery) and of the proportionality principle
of the decade. But beyond the dictionary interlocutory motions (particularly when throughout the civil litigation process.
definition and the reference to it in the Rules judges’ lists are long and resources are scarce). The headnote summarizes the point:
of Civil Procedure, many lawyers, a great
number of clients and even some judges On the surface, the wording of Ontario Rule Our civil justice system is premised upon the
are unaware of what it means in practice. 29.1, dealing with the discovery plan, looks value that the process of adjudication must be
prescriptive in that the plan is to be in writing fair and just. This cannot be compromised.
As a noun, “proportionality” means and, in the normal course, completed within However, undue process and protracted trials,
“corresponding in size to something else.” 60 days after the close of pleadings. In practice, with unnecessary expense and delay, can prevent
According to Wikipedia, proportionality [law] however, only a few lawyers report actually the fair and just resolution of disputes. If the
is a concept “used as a criterion of fairness and completing a written plan and fewer do so process is disproportionate to the nature of the
justice in statutory interpretation processes. ...” within the time specified. This is not to say dispute and the interests involved, then it
The problem is that no objective standard the Rule doesn’t work to achieve its intended will not achieve a fair and just result.
exists for its application in a particular situation: purpose. Most competent counsel reach
Given the same set of facts, people will apply informal agreement on the ingredients for A shift in culture is required. The proportionality
the principle of proportionality in various ways. applying proportionality in discovery principle is now reflected in many of the
– as noted, the title of Rule 29.2 – in a provinces’ rules and can act as a touchstone
I will try to provide some focus on this reasonable time. for access to civil justice. ...
rather elusive topic by looking at the rules
of proportionality; providing some useful More problematic for the application of PRACTICE PRINCIPLES
tools for implementing those rules; and proportionality is Rule 30.03, the Affidavit
sharing a few “smarts” to help apply the of Documents, which requires the disclosure The growth of digitally stored information has,
principle most effectively. “to the full extent of the party’s knowledge, in a few short years, significantly increased the
information and belief all documents relevant volume of potentially relevant documents for
RULES to any matter in issue in the action that are or production. The idea of principles for
have been in the party’s possession, control discovery of electronic information was first
In many common-law jurisdictions, the word or power.” One can understand the dilemma considered in the Discovery Task Force Report
“proportionality” appears at least once in the faced by an inexperienced lawyer who sees the in Ontario in 2003 and then more broadly
applicable rules of procedure. Ontario accepted requirement for proportionality in Rule 29 and in the Sedona Canada Principles in 2008 to
the need for a reference to proportionality in the the requirement to list all relevant documents allow them to be complementary with Rules in
Rules of Civil Procedure only after considerable in Rule 30. Which Rule to honour? Ontario, other provinces and the United States.
debate. For many, Rule 1.04, which mandates Rule 29.1 in Ontario requires the completion of a
the “least expensive” and “most expeditious” In many Ontario actions, the Affidavit of Discovery Plan that takes into account the 2008
process,” was sufficient. Rule l.04(l.l) was added Documents is never complete. In others, the Sedona Canada Principles.
in 2010 specifically to require proportionality insistence on completion adds significantly
in all aspects of civil litigation. At the same time, to the cost and time extension of the process. A revision to the Sedona Canada Principles
Rule 29.2, Proportionality in Discovery, was In short, to balance reasonableness and will be issued in its final form by the end of
added to deal with the most expensive and requirement, rules can provide guidance, 2015. In addition to updating the case law in
time-consuming process of civil litigation. direction and, where necessary, compulsory the area of electronically stored information,
compliance. Proportionality involves the revised principles will emphasize several
Many of the Civil Rules are aspirational rather knowing how to apply the rules to important aspects of discovery associated with
than prescriptive. Some lawyers fail to appreciate achieve the intended result. civil litigation and provide practical examples
the difference between the two concepts and and notes on their application. The term “meet
take only one approach to applying the Rules. TOOLS and confer,” used in the first edition to signal the
Matters become difficult when one side to an need for lawyers and clients to address issues
action approaches proportionality in a relaxed, In today’s environment, rules are not enough of production early on in a proceeding, will
laissez-faire manner and the other insists on to achieve proportionality. They tend to be replaced with the term “co-operation and
a rigid, black-letter style. be “one-size-fits-all,” yet each type of case collaboration.” The change will emphasize the
and each civil action has its own needs and importance of reaching agreement not just on
The addition of the proportionality concept to requirements. Here are four examples of the preservation of documents, but throughout
civil rules in most common-law jurisdictions tools that can be used to supplement rules for the production process.
signalled the need for a culture change that is achieving proportionality.
now under way in most courts where litigation As well. Principle 4 will spell out a number of
has become too time-consuming and too CASE LAW considerations for achieving proportionality
expensive. Beyond Canada, the amendments in the discovery process. The revision will also
to the United States Federal Rules of Civil The leading case, at least for the moment, in note the growing use of technology to refine the
Procedure, which will come into force in 2016, the area of proportionality is the decision of location, preservation and review of documents,
contain specific direction for proportionality the Supreme Court of Canada in Hryniak v. particularly the review for privilege. Frequent
in discovery. Mauldin. The decision itself dealt with the references will be made to those tools that,
with co-operation, can lead to cost and time
The two pre-trial areas in which proportionality Ontario summary judgment rule, but perhaps reductions - in other words, to proportionality.
more important in the long run is the court’s
can be difficult to achieve are discovery statements on the need for the application Continued on page 14
12 LAW CLERKS’ REVIEW, MARCH 2016
The Honourable Colin L. Campbell, Q.C.
Proportionality has become the buzz-word (particularly documentary discovery) and of the proportionality principle
of the decade. But beyond the dictionary interlocutory motions (particularly when throughout the civil litigation process.
definition and the reference to it in the Rules judges’ lists are long and resources are scarce). The headnote summarizes the point:
of Civil Procedure, many lawyers, a great
number of clients and even some judges On the surface, the wording of Ontario Rule Our civil justice system is premised upon the
are unaware of what it means in practice. 29.1, dealing with the discovery plan, looks value that the process of adjudication must be
prescriptive in that the plan is to be in writing fair and just. This cannot be compromised.
As a noun, “proportionality” means and, in the normal course, completed within However, undue process and protracted trials,
“corresponding in size to something else.” 60 days after the close of pleadings. In practice, with unnecessary expense and delay, can prevent
According to Wikipedia, proportionality [law] however, only a few lawyers report actually the fair and just resolution of disputes. If the
is a concept “used as a criterion of fairness and completing a written plan and fewer do so process is disproportionate to the nature of the
justice in statutory interpretation processes. ...” within the time specified. This is not to say dispute and the interests involved, then it
The problem is that no objective standard the Rule doesn’t work to achieve its intended will not achieve a fair and just result.
exists for its application in a particular situation: purpose. Most competent counsel reach
Given the same set of facts, people will apply informal agreement on the ingredients for A shift in culture is required. The proportionality
the principle of proportionality in various ways. applying proportionality in discovery principle is now reflected in many of the
– as noted, the title of Rule 29.2 – in a provinces’ rules and can act as a touchstone
I will try to provide some focus on this reasonable time. for access to civil justice. ...
rather elusive topic by looking at the rules
of proportionality; providing some useful More problematic for the application of PRACTICE PRINCIPLES
tools for implementing those rules; and proportionality is Rule 30.03, the Affidavit
sharing a few “smarts” to help apply the of Documents, which requires the disclosure The growth of digitally stored information has,
principle most effectively. “to the full extent of the party’s knowledge, in a few short years, significantly increased the
information and belief all documents relevant volume of potentially relevant documents for
RULES to any matter in issue in the action that are or production. The idea of principles for
have been in the party’s possession, control discovery of electronic information was first
In many common-law jurisdictions, the word or power.” One can understand the dilemma considered in the Discovery Task Force Report
“proportionality” appears at least once in the faced by an inexperienced lawyer who sees the in Ontario in 2003 and then more broadly
applicable rules of procedure. Ontario accepted requirement for proportionality in Rule 29 and in the Sedona Canada Principles in 2008 to
the need for a reference to proportionality in the the requirement to list all relevant documents allow them to be complementary with Rules in
Rules of Civil Procedure only after considerable in Rule 30. Which Rule to honour? Ontario, other provinces and the United States.
debate. For many, Rule 1.04, which mandates Rule 29.1 in Ontario requires the completion of a
the “least expensive” and “most expeditious” In many Ontario actions, the Affidavit of Discovery Plan that takes into account the 2008
process,” was sufficient. Rule l.04(l.l) was added Documents is never complete. In others, the Sedona Canada Principles.
in 2010 specifically to require proportionality insistence on completion adds significantly
in all aspects of civil litigation. At the same time, to the cost and time extension of the process. A revision to the Sedona Canada Principles
Rule 29.2, Proportionality in Discovery, was In short, to balance reasonableness and will be issued in its final form by the end of
added to deal with the most expensive and requirement, rules can provide guidance, 2015. In addition to updating the case law in
time-consuming process of civil litigation. direction and, where necessary, compulsory the area of electronically stored information,
compliance. Proportionality involves the revised principles will emphasize several
Many of the Civil Rules are aspirational rather knowing how to apply the rules to important aspects of discovery associated with
than prescriptive. Some lawyers fail to appreciate achieve the intended result. civil litigation and provide practical examples
the difference between the two concepts and and notes on their application. The term “meet
take only one approach to applying the Rules. TOOLS and confer,” used in the first edition to signal the
Matters become difficult when one side to an need for lawyers and clients to address issues
action approaches proportionality in a relaxed, In today’s environment, rules are not enough of production early on in a proceeding, will
laissez-faire manner and the other insists on to achieve proportionality. They tend to be replaced with the term “co-operation and
a rigid, black-letter style. be “one-size-fits-all,” yet each type of case collaboration.” The change will emphasize the
and each civil action has its own needs and importance of reaching agreement not just on
The addition of the proportionality concept to requirements. Here are four examples of the preservation of documents, but throughout
civil rules in most common-law jurisdictions tools that can be used to supplement rules for the production process.
signalled the need for a culture change that is achieving proportionality.
now under way in most courts where litigation As well. Principle 4 will spell out a number of
has become too time-consuming and too CASE LAW considerations for achieving proportionality
expensive. Beyond Canada, the amendments in the discovery process. The revision will also
to the United States Federal Rules of Civil The leading case, at least for the moment, in note the growing use of technology to refine the
Procedure, which will come into force in 2016, the area of proportionality is the decision of location, preservation and review of documents,
contain specific direction for proportionality the Supreme Court of Canada in Hryniak v. particularly the review for privilege. Frequent
in discovery. Mauldin. The decision itself dealt with the references will be made to those tools that,
with co-operation, can lead to cost and time
The two pre-trial areas in which proportionality Ontario summary judgment rule, but perhaps reductions - in other words, to proportionality.
more important in the long run is the court’s
can be difficult to achieve are discovery statements on the need for the application Continued on page 14
12 LAW CLERKS’ REVIEW, MARCH 2016
