Exchanging documents before discovery: A simplified procedure

In Rosebrook v Hill Times Publishing Inc., the Federal Court addressed whether a plaintiff (“Rosebrook”) is required to serve the defendant (“Canadian Anti-Hate Network (CAHN)”) with relevant documents before discovery or as an answer to discovery questions in a simplified proceeding. Rule 295 of the Federal Courts Rules, SOR/98-106 states that “[a] party to a simplified action may serve, in lieu of an affidavit of documents, a complete list of all the documents in the party’s possession, power or control that are relevant to a matter in issue in the action.”

While acknowledging that Rule 295 does not oblige a producing party to make relevant documents available for inspection or produce copies, the Court found that Rule 94 applied to written examinations conducted in a simplified proceeding. The Court went on to find that delaying service of the plaintiff’s documents until after discovery would be inefficient and contrary to Rule 3.

Given that this case was not particularly complex, the Court saw no reason for discovery to extend beyond a single exchange of questions and answers. Producing the documents before discovery would allow parties to formulate focused and directed questions in the first instance, while avoiding requests for follow-up discovery.

The Court therefore compelled the plaintiff to produce copies of all documents in the list of documents before discovery, pursuant to its discretion under Rules 54, 55, and 385. This was more practical than requiring CAHN to remove this action from the operation of Rule 295, as suggested by the plaintiff. Citing Hyrniak v Mauldin, the Court emphasized that pre-trial procedures should be simplified, and that exchanging documents before serving written discovery questions was a practical means to do so in this case.

A copy of the decision can be found here.