Appeal Court Writes a Chapter on Proportionality

On May 31st the Newfoundland and Labrador Court of Appeal issued a judgement with a number of broad statements about the proportionality principle and how it ought to be applied by courts in crafting discretionary orders under civil rules.

The underlying matter was about a motor vehicle claim and a list of broadly framed interrogatories served by a defendant immediately after the close of pleadings. The defendant argued that the interrogatories were necessary because the statement of claim requested general and special damages without any real degree of particularity. It also argued that the applicable court rules did not require it to wait for production of documents. The plaintiffs objected to both the timing and breadth of the interrogatories. The defendant successfully moved for an order compelling answers, and the plaintiffs appealed.

Chief Justice Green, on behalf of the Court of Appeal, quashed the order and stipulated that each party bear its own costs. He held that the application judge erred by making the intrusive order when there was no basis in the pleadings to be able to judge whether the order was necessary to enable the case to be disposed of in accordance with the principle of proportionality – i.e. in a manner that is fair, efficient and cost effective as judged in relation to the nature and circumstances of the particular case. He also held that the plaintiffs ought to have filed a proper pleading, that the defendant ought to have simply moved for particulars and that neither party acted so as to achieve a fair, efficient and cost effective determination of the merits of the case.

In making this decision the Chief Justice makes a number of “quotables” on proportionality. My favorite:

The recognition and application of the underlying principle of proportionality is also consistent with the emerging notion in civil procedure, perhaps best exemplified by the summary trial rule (Rule 17A), that a litigant does not have an immutable right to his or her “day in court” in the sense of a traditional trial with all the pre-trial procedures that are theoretically available. Rather, what a potential litigant has is a right to have his or her claim dealt with fairly and resolved according to law in a manner that is appropriate to the nature and circumstances of the particular case. The consequence is that all cases should not be treated alike because speed, economy and fairness cannot be achieved in each case by treating each case like all others. Different procedures and mechanisms can and should be employed in different cases as the principles of proportionality indicate.

This is relevant, of course, given the link between proportionality and recent initiatives in civil justice reform. For the full judgement, see Szeto v. Dwyer, 2010 NLCA 36 (CanLII).


  1. I would be interested in any case law on proportionality that expressly links the lack of proportionality to the intention to abuse or at least to abuse in fact. I suppose if the court found a claim to be made for the purpose of abuse, it would have the power to dismiss it for that reason.

    As experts appointed by the government of Ontario consider the possible content of anti-SLAPP legislation, they may want to discuss whether the proportionality rule in Ontario’s Rules of Civil Procedure will offer some part of a remedy for a SLAPP suit.

    What do you think?

  2. Thanks for the comment John.

    My thought is that the of concept of proportionality (as it applies to the interpretation of civil rules) is distinct from the abuse of process doctrine. In my view it also should be distinct – applying to every matter regardless of the parties’ conduct and with a focus on the nature of the matter rather than the parties’ conduct.

    This Newfoundland case is critical of the parties, but because they took steps that were inefficient (rather than abusive). Making choices that are “inappropriate” in light of the nature of the matter will also run afoul of the proportionality principle, but there was no decision on appropriateness here because there was even an insufficient basis for characterizing the matter. Perhaps, then, Szeto is not really a proportionality case at all?

    In any event, whether proportionality is about “efficiency” or “appropriateness,” it seems to be a concept with much broader application and much more neutral connotations than the abuse of process doctrine.

    I’m interested in the anti-SLAPP developments, but am not in a position to comment on that yet.

    Anyone else?