It has been a little over a month since the changes to the Ontario Rules of Civil Procedure have brought in "proportionality" as a governing principle and brought in specific directions regarding proportionality in the discovery process. This is a summary of a quick case law review I conducted for recent Ontario civil procedure decisions citing the proportionality concept.
By numbers alone, it appears Ontario courts are citing the principle slightly more. I counted 15 civil procedure cases reported on Quicklaw that mentioned proportionality from January 1 to February 14. For the same period last year the number was eight. This could be a significant difference, but I'm not drawing any strong conclusions given Quicklaw coverage is not comprehensive and I'm not aware of how LexisNexis selects cases for publication.
Of the 15 cases I counted, six are discovery cases and nine are costs cases. I'm not able to note a trend, but do note that three of the decisions limited costs awards to prevent recovery that would have been disproportionate in light of the amounts at stake.
To the contrary, in Cimmaster Inc. v. Piccione (c.o.b. Manufacturing Technologies Co.) Mr. Justice Gray rejected an argument for limiting a costs award based on the proportionality concept. The party claiming costs had beat its Rule 49 offer of $8,000 plus interest and costs. Gray J. accepted that a successful party must sometimes rise to an opposing party's aggression. He said:
Finally, I do not accept, as contended by MTC, that in the circumstances of this case such an amount is disproportionate. The principle of proportionality is important, and must be considered by any judge in fixing costs. Indeed, I have had occasion to apply the principle even before the promulgation of the recent Rules amendments that specifically require it to be considered: see Pitney Bowes of Canada v. Noia, [2009] O.J. No. 4822 (S.C.J.). However, in my view, the principle of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality. In my view, as was the case in Pitney Bowes, the concept of proportionality appropriately applies where a successful party has over-resourced a case having regard to what is at stake, but it should not result in a reduction of the costs otherwise payable in these circumstances
This is one of the more principled statements I reviewed in the set of 15 decisions. Other notables? Master Sproat mentioned the principle on January 19th, in making a very relevant finding that a party has no right to forensic inspection of a hard drive absent evidence of non-disclosure or omission. In Solutions With Impact Inc. v. Domino's Pizza of Canada Ltd., Master Short noted a decision in which he addresses the "philosophical foundations" of the proportionality concept but this decision – Moosa v. Hill Property Management – is neither reported on Quicklaw nor CanLII.
