A common occurrence in a litigation file is the refusal of a question posed during an examination for discovery. In some cases, the evidence underlying the question refused could be pivotal to the outcome of the litigation. In other cases, the answer to that question, while it may appear important in the discovery phase, may ultimately have minimal or no impact on the issues at trial. In determining whether a motion to compel the refusing party to answer the question is warranted, one will have to consider the relevance of the question to the issues in the proceeding, the inevitable delay associated with the scheduling of the motion and the risk and associated additional legal fees associated with bringing such a motion, particularly where the refusals are numerous.
An interesting approach to “refusals motions” has been adopted by Mr. Justice Brown of the Toronto Commercial List in Caja Paraguaya de Jubiliaciones y Pensiones del Personal de Itaipu Binacional v. Eduardo Garcia Obregon which may offer some assistance to litigants grappling with this decision. In that case, Mr. Justice Brown presented the parties with three options for dealing with their refusals motions:
As noted by Mr. Justice Brown, the number of material refusals in any action is usually quite small. Accordingly, this novel approach to address time consuming refusals motions may contribute to a more thoughtful and more reasonable approach to refusals motions by litigants. Parties opting for Option B will have to weigh and assess the net benefit (both from an evidentiary and economic perspective) and that could be achieved in bringing a refusals motion. As stated by Mr. Justice Brown, this method affords the parties “an opportunity to take a sober look at exactly how many refusals are material for a fair determination of the issues at trial and therefore adjudication by this Court”. While some counsel may object to the fact that Mr. Justice Brown’s approach completely eliminates the ability to make oral submissions on a refusals motion, the “upside” is a speedier resolution, (hopefully) reduced cost and certainty as to the calculation of risk.
It will be interesting to see how courts outside the Commercial List react to Mr. Justice Brown’s approach to refusals motions.