“The disposition of discovery and disclosure requests requires a preliminary identification of the triable issues in order to assess the relevance of the information or evidence sought. However, it is not enough that information or evidence is technically or remotely relevant to an issue. Other considerations such as proportionality, fairness, cost, delay and interference with the privacy interests of non-parties must also be taken into account. Twenty years ago the Court of Appeal made this often quoted observation in addressing a request for production and discovery from non-parties:
The discovery process must also be kept within reasonable bounds. Lengthy, some might say interminable, discoveries are far from rare in the present litigation environment…unless production from and discovery of non-parties is subject to firm controls and recognized as the exception rather than the rule, the discovery process, like Topsy will just grow and grow. The effective and efficient resolution of civil law suits is not served if the discovery process takes on dimensions more akin to a public inquiry than a specific law suit: Ontario (Attorney General) v. Ballard Estate (1995), 1995 CanLII 3509 (ON CA), 26 O.R. 3d 39 (Ont. C.A.).
One of the major reforms that followed the subsequent work of the Task Force on the Discovery Process in Ontario was an amendment to the Rules of Civil Procedure emphasizing the “proportionality principle” as an overarching and general operative element in those rules. The proportionality principle was already enshrined in the Family Law Rules by Rule 2. Rule 2 encourages courts to downsize the procedure in any given case so long as the court is still able to justly deal with the issue raised. Comprehensive or exhaustive oral examination or production of documents may make access to justice unnecessarily expensive or protracted. Merely proving the relevance of a document may be insufficient to warrant production. To order production the court must be satisfied that it would be “unfair” to the party seeking production to go on with the case without the document or information. In essence the document must be found to be important to a party’s case, especially in relation to the amount at stake: see Himel v. Greenberg, 2010 ONSC 2325 (CanLII) at paras. 27 and 30 – 31.
The disposition of these motions must temper full disclosure of relevant information with the proportionality principle. In Saunders v. Saunders 2015 ONSC 926 (CanLII), Kiteley J. addressed motions very similar to those now before this court. I agree with, and adopt, her general comments in Saunders and in particular paragraphs 13 and 14 of that decision which read as follows:
Fourth, disclosure is not a weapon and is not intended to overreach. As is clear in this case and too many others before the court, the process of disclosure has become an independent battle within the overall litigation campaign: Fuda v. Fuda, 2010 ONSC 5698 at para. 4. As Perell J. held in Boyd v. Fields, [2006] O.J. No. 5762 at para. 12:
Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party’s understandable aspiration for the utmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial.
I agree as well with the observation by Harper J. in Berta v. Berta, 2014 ONSC 3919 (CanLII) at para. 53:
The duty of all experts to the court to be neutral and objective in providing their evidence and opinions is extremely important. Being neutral and objective does not mean an expert cannot be critical and seek out relevant documents sufficient to perform their task. They must diligently review those documents and arrive at their considered opinion based on that thoughtful analysis. That does not mean that the expert starts out with the presumption that he or she will unearth every single document that in any way might tie into another document in order to conduct a “forensic type of review” in all cases. Experts must approach their task with thoroughness without having a complete disregard to the proportionality of the task the issues and the costs.”