The proportionality amendments to the Rules of Civil Procedure (the “Rules“) came into force in 2010—nearly two decades ago now. The codified principle remains one of the most frequently invoked, and occasionally misapplied, tools in civil litigation. A periodic refresher is worthwhile, and Ontario v. Rothmans Inc., 2011 ONSC 2504—decided shortly after the amendments took effect—offers a clear reminder of what proportionality was, and was not, meant to do for cross-examinations and discovery.
The General Principle
Rule 1.04(1) has long provided the interpretive lodestar for civil litigation in Ontario. The Rules,
“shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
The difficulty has always been reconciling the “just” with the “least expensive.”
The 2010 Codification
The 2010 amendments to the Rules answered that tension by codifying proportionality directly.
Rule 1.04(1.1) now requires 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.”
The amendments also added Rule 29.2 (Proportionality in Discovery), which directs the court, in deciding whether a party must answer a question or produce a document, to weigh considerations such as the time and expense involved, undue prejudice, interference with the orderly progress of the action, the availability of the information from another source, and the overall volume of documents.
A Brief Backdrop to Rothmans
The scope and character of the 2010 additions were tested in Ontario v. Rothmans Inc. The Crown sued tobacco manufacturers to recover billions of dollars in health-care costs. Several foreign defendants moved to challenge Ontario’s jurisdiction, supporting their motions with affidavits. On the Crown’s refusals motion, the Master (now known as an associate judge) ordered the deponents to answer. Justice Perell then allowed the appeal.
Where the Master’s Analysis Went Wrong
The interest of the decision lies in why the Master erroneously concluded that expansive discovery on the particular refusals motion was demanded by the proportionality principle. He made a chain of interpretive errors about the role of proportionality within the Rules. Justice Perell’s analysis of those errors is worth a revisit.
- The Master’s first error was to treat the cross-examinations on the affidavits as though they were examinations for discovery. Every subsequent error flowed from that root. Justice Perell noted that the rule makers intended Rule 29.2 not to apply to cross-examinations because they are not a substitute for discovery. The Master’s presumption that search technology was available, and his order to answer subject to a later return, reflected a discovery mindset.
- The “inform yourself” conflation followed. Because the Master approached the exercise as discovery, he assumed the deponents were obliged to inform themselves about matters in issue and to obtain hearsay answers. That obligation only attaches to a discovery witness. On a cross-examination on an affidavit it is the exception, not the rule, because a deponent confined to personal knowledge generally cannot be compelled to gather information from others.
- The Master’s “complete record” belief compounded matters. Reinforced by Lord Woolf’s “equality of arms” language, the Master reasoned that because the jurisdiction motion could dispose of the proceeding, the court should have “as much relevant information as possible,” “as complete a record as is available,” and should consider “all reasonably available relevant evidence.” The removal of the limitation period under the governing statute also led him to discount the age of the documents. The Master’s belief here—that the importance or dispositive potential of a motion justifies more procedure—was rejected by Justice Perell.
A Tool to Downsize, Not Expand
The Master’s expansionary misreading of proportionality was the mistaken result. Justice Perell held that proportionality is instead a parsimonious principle—a tool to downsize procedure where it is fair to do so, not to enlarge it.
Justice Perell captured the point in a memorable metaphor. The Rules are the Cadillac of procedure, but many cases need only a serviceable Chevrolet (the proportionality default), and it is an error to treat a large or important case as calling for a Rolls-Royce (as the Master did). In other words, the Chevrolet is the default, for it will do just fine for many cases, and will provide both access to justice and judicial economy. But where the Chevrolet is not procedurally fair, the Cadillac should apply.
The Practical Takeaway
The enduring lesson of Rothmans is that proportionality cuts against the reflexive instinct to seek everything. It is not a lever to be pulled harder as the stakes rise. A larger claim or a potentially dispositive motion does not licence broader procedure.
For counsel, the discipline runs in both directions—resisting the temptation to over-demand on the one hand, and, on the other, addressing document-retrieval capacity prospectively through a discovery plan rather than litigating it after the fact on a refusals motion.
More than fifteen years on, the principle asks the same question of every procedural step: is this proportionate to what the case actually requires for a “just” procedure?
Thank you for reading and have a great week!
By Jordyn Sanford