The Importance of the Request to Inspect and Demand for Particulars
15 May 2018
For most litigators, having to bring a motion before you file your client’s defence is an uncomfortable position to be in. It’s hard to justify to your client, especially if the plaintiff is threatening to note your client in default. However, in some cases (e.g. when your client is missing critical information that they require to plead), you will have no choice but to advise your client that they need to stand their ground and insist on the production and/or inspection of certain documents (pursuant to Rules 25.10 and 30.04 of the Rules of Civil Procedure) before you file your client’s defence.
In William Day Construction v. Wilderness Helicopters (2009) Ltd.1, a recent decision by the Ontario Superior Court of Justice, a dispute arose with regards to a lease purchase agreement for a certain helicopter that was later sold by the Plaintiff to a third party.
Despite appropriate requests made by the Defendant, the Plaintiff refused to, among other things:
- produce for inspection any documents with regards to demands for payment that were allegedly made of the Defendant; and
- provide any particulars with regards to sale of the helicopter.
In the Statement of Claim, at paragraph 12, the Plaintiff had alleged:
“12. As such, in or about the fall of 2017, William Day sold the Helicopter to a third party and in or about the same time, made demands of Wilderness Helicopters to pay the outstanding Rent.”
Request to Inspect
In their Request to Inspect, the Defendant requested “all documents as to how [Plaintiff] ‘made demands’ for payment of the Defendant. The Plaintiff refused the request to inspect on grounds that paragraph 12 of the Statement of Claim does not refer to any specific documents.
The Defendant argued that making reference to a document summarily is not a valid ground for refusal. If it was, the right of inspection would be easily circumvented by "clever" drafting. Also, if a document does not exist (e.g. if an agreement was reached or a demand was made orally), nothing prevents the Plaintiff from indicating that in their response.
Finding support in Petro-Diamond Inc. v. Verdeo Inc.2, Master McAfee agreed with the Defendant’s rationale and ordered that “If demands were made in writing, I am ordering that the demands be produced for inspection.”
Demand for Particulars
Pursuant to a demand for particulars, the Defendant demanded, in relevant part, particulars with regards to the sale of the helicopter, including:
- the identity of the third party that purchased the helicopter;
- date of the sale; and
- the sale amount.
The Defendant gave evidence by way of affidavit that they needed to know these particulars in order to plead their defence.
The Plaintiff, insisting that the Defendant did not have a set off defence, resisted such demands on grounds of relevance. Ultimately, the court sided with the Defendant, and the Plaintiff was ordered to provide particulars with regards to the sale of the helicopter, including the date and price.
This was important relief for the Defendant, they do not have to draft their defence “in the blind” and have avoided the need for a potentially costly fight over a possible motion to amend the defence once they learn this information at the discovery stage.
In William Day, the court confirmed that the use of a request to inspect is not limited only to documents that are specifically set out in the pleadings, and regardless of the plaintiff’s point of view on relevance, a demand for particulars can be used when the defendant is seeking information that they require to plead, including a set off defence.
This decision is also a reminder of how important, even when faced with threats of default by the Plaintiff, these - often overlooked - procedural tools can be for our clients.
I argued this motion with my colleague, Ranjan Das, at BYLD.
Please do not hesitate to contact me or my colleagues at BYLD if you have any questions with regards to the above or on any commercial litigation issues that you or your client(s) are dealing with.
Author: Samir (Sam) Gebrael
Tags: commercial lease disputes, contract, litigation