Who Pays the Costs of Producing Undertakings - Endale v Parker, 2022 ONSC 2008 (CanLII)

Who Pays the Costs of Producing Undertakings – Endale v Parker, 2002 ONSC 2008

Written By: William Keele and Keanin Parish, Student-at-Law

The defendant brought a motion for an order compelling the plaintiff to answer undertakings resulting from his examination for discovery, to pay the costs associated with obtaining the documents required to satisfy the undertakings, and to produce further documents.

The defendant agreed to pay the reasonable costs associated with copying the required documents, but only on the condition that the plaintiff pay all other costs associated with obtaining the documents.

In his Reasons on Motion, The Honourable Justice Valente quotes the comments of Justice Sloan in Trumble v. Soomal, 2020 ONSC 8097, that “ [i]t is unfortunate that , in 2020, the case law on the issue of production of somewhat routine medical and work records in personal injury litigation has not been more definitively decided, at least on the case law referred to before me.”

Justice Valente’s analysis begins with Rule 30.02 of the Rules of Civil Procedure, R.R.O 1990 O. Reg 194: “every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.”

Justice Valente, then relied on the comments of Justice Cullity in  Ho v. O’Young-Lui, 2002 CanLII 6346 (ONSC) that: “… the balance of the authorities at present appears to favour the view that, as a general rule, the expenses of a party’s productions are to be paid by that party in the first instance.”

Plaintiff’s counsel submitted that a distinction is to be drawn between cases where the plaintiff’s production of documents is required prior to examinations and those instances where documents are to be produced to fulfill discovery undertakings.  Justice Valente disagreed: “the obligations placed on litigants by Rule 30.02 are to be unconditionally applied throughout the litigation process.”

Ultimately, the plaintiff was ordered to pay the costs of delivery of the documents in fulfillment of his undertakings. Costs of the motion were not awarded due to the previous “confusions in the decided case law.”  The rule in this decision is that each party must produce all relevant documents at their own expense that are in their possession, control or power, including documents obtained to answer undertakings.

William Keele


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