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:
Option A: His Honour would write an endorsement which states that the parties have agreed to refrain from bringing their respective refusals motions on the understanding that neither side could argue at trial that this should be construed against the other party. At trial, if an issue arises relating to a question refused, then the trial judge could consider the matter in the context of the trial. The trial judge could then either conclude that the refusal was proper or it was improper and that an adverse inference would be drawn against the refusing party for failing to disclose the material evidence;
Option B: The parties would deliver motion records for their respective refusals motions which would be dealt with in writing. If this method is chosen, costs would be awarded against the unsuccessful party on an “amount per refusal basis” ($1,500.00 per unsuccessful refusal, payable in 30 days). In the example given by His Honour, if a party brings a motion in respect to eight (8) questions refused, but succeeds on only two (2), the moving party would face adverse cost consequences of up to $6,000.00 ($3,000.00 for the moving party’s success on two (2) refusals, minus $9,000.00 for the unsuccessful six (6) refusals);
Option C: The parties can opt for a hybrid approach in which they would identify those refusals to be dealt with by way of Option A and those that they wish to pursue under Option B.
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.