In a case of sufficient size and complexity, asking several hundred questions on an examination for discovery by written interrogatories may not be disproportionate absent bad faith or illegality, according to a recent decision of the Ontario Superior Court of Justice.
In the recent case of Green v. Canadian Imperial Bank of Commerce, 2020 ONSC 5342, the Court rejected the plaintiffs’ assertion of disproportionality to several hundred questions asked by a defendant on a written examination for discovery. Even though there were so many questions as to elicit the Court to remark that it “look[ed] like a very intelligent junior was tasked with going through the [300-paragraph statement of] claim and asking every relevant question possible,” given the circumstances of the case, including that it was as big and complex as they come, the Court ordered the plaintiffs to answer all of the outstanding interrogatories as directed.
Green provides insight to Ontario litigators who conduct examinations for discovery by written questions as to how many questions may be appropriate in a given case. For litigators looking to increase the scope of their questioning, the case may inspire them to ask more questions in cases that are sufficiently complex. For others wanting to restrict discoveries, the decision may give them pause to reconsider whether oral examinations may be a preferable option in larger cases.
Green v. Canadian Imperial Bank of Commerce
The Green decision arose in the context of a certified class action relating to the 2008 financial crisis, which had previously been before the Supreme Court of Canada. The plaintiffs, a class of investors who had suffered financial losses, had sued CIBC and several of its senior officers for $5 billion in damages, alleging that the bank failed to make proper disclosure and made misleading disclosures about its exposure to the US subprime mortgage market.
The parties had agreed to use written interrogatories to flesh out each other’s pleadings, and the defendant CIBC had asked the plaintiffs a large number of questions. CIBC then filed a refusals motion on the basis that the answers provided by the plaintiffs to several hundred questions were not fully responsive. At the time of the hearing of the motion, the action was 12 years old and had recently been scheduled for trial commencing approximately one year after the hearing.
Though the Court acknowledged “some sympathy for the concern about the number of questions asked,” it rejected the plaintiffs’ assertion of disproportionality.
The hundreds of questions were relevant to the issues pled. The plaintiffs were not required to plead a 300-paragraph statement of claim and could not complain if questioned on what they pleaded. The fact that answering the questions may take weeks and a further investment of a few tens of thousands of dollars of time was immaterial with potential contingency fees in the billions of dollars and no expense being spared on both sides. Given the case was as big and complex as any, the Court stated that it would be difficult to find any proposed steps to be disproportionate absent bad faith or illegality. The Court also noted that the palpable degree of antagonism among the parties and the clear efforts of the plaintiffs to avoid being pinned to the discovery testimony influenced its assessment of proportionality.
No limit to the number of questions that can be asked by written interrogatories
Though its possible that Green may be somewhat limited to its facts, the decision provides some clarity on a question that has yet to be fully addressed by Ontario’s legislature and courts: Is it possible to ask too many questions on a examination for discovery by written interrogatories?
Unlike oral examinations for discovery which are subject to a statutorily imposed limit of seven hours of examination regardless of the number of parties or persons to be examined (except with consent of the parties or with leave of the court), there is no express limit to the questioning that can take place on an examination for discovery by written questions in Ontario.
In assessing the scope of what questions are permissible on examinations for discovery by written questions under Rule 35 of the Rules of Civil Procedure, Ontario courts are obliged to apply the proportionality principles set out in Rules 1.04 and 29.2.03,1 which compel the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
Yet, even though courts can limit the number of questions posed under Rule 35 on the basis of “disproportionality”, with no statutorily imposed limit and in the absence of much prior jurisprudence addressing the issue, it has been open to any party in Ontario to ask hundreds or even thousands of questions on a written examination and potentially trigger disputes about refusals made on the basis of excessive questioning.
Given the absence of clarity for litigators, it has been an open question as to whether some threshold could exist beyond which additional questions would be considered improper by virtue of disproportionality. Is possible that there could be an absolute cap to the total number of questions that could be asked on a written examination?
Green would appear to be inconsistent with the concept of a cap, as it establishes that if the amount in issue is sufficiently large and the allegations at issue are sufficiently serious and complex, the asking of several hundred relevant questions will not be disproportionate absent bad faith or illegality.
In the wake of Green, in any case where a witness refuses to answer large volumes of written questions on the basis of proportionality, an examining party may look to tout the scope and complexity of their case in the hopes of compelling fully responsive answers.
1 Notably, in Green Rule 29.2.03 was inapplicable as the parties had agreed there would be no evidence for the motion and the court thus lacked evidence concerning any factor under r. 29.2.03.