Records Management @ Gowlings: November 23, 2011 - Volume 2, Number 7

CASE LAW

Barker v. Barker, [2007] O.J. No. 1555, 157 A.C.W.S. (3d) 274 (S.C.J.)

Issue: Production costs in association with the discovery process; under what circumstances should the plaintiff share in the costs

The plaintiffs in this action brought a claim against the defendants as a result of the treatment they received while in a maximum security division of a mental health facility. The plaintiffs alleged that the treatment they received aggravated their pre-existing medical conditions and had long lasting effects. In order to satisfy their discovery obligations, the defendants proposed to computerize and code the extremely large volumes of patient records at a cost which could range from $160,000 to $383,000. The defendants brought a motion to require the plaintiffs to pay for one-third of these costs. The defendants argued that because the plaintiffs will benefit from the process, they should also share in the costs of achieving it.

The court reviewed S. 131(1) of the Courts of Justice Act, which provides the court may determine by whom and to what extent "the costs of and incidental to ... a step in a proceeding" are to be paid. The court also considered the Supreme Court of Canada's decision in British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, which held, as a general rule, costs should be awarded only at the end of litigation and that interim awards should be made only if: (a) the party seeking the costs is impecunious and would be unable to pursue the litigation if the order was not made; (b) that party has, prima facie, a case of sufficient merit; and (c) there are present special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where "this extraordinary exercise of its powers is appropriate" (paras. 36 and 64).

The court ultimately distinguished this situation from that of Okanagan in that there was very substantial continuing benefits to the plaintiffs and the court that were likely to be obtained from the electronic conversion by the defendants. The proposed benefits and their magnitude were held to be enough to justify the plaintiffs payment of one-third of the conversion costs on a provisional basis. However, these costs were not awarded in any event of the cause. Rather, they were to be paid as incurred, but subject to the review of the trial judge.

United States v. Universal Health Services, Inc. 2011 WL 3426046 W.D.Va.

This was a motion by...