The Plaintiff applied for an Order pursuant to Rule 5.11 compelling the Defendants’ full production of records within a specified period. The Plaintiff had previously been granted an Anton Pillar Order which included injunctive provisions in respect of one of the individual Defendants and which appointed in Independent Supervising Solicitor (“ISS”) to gather and prepare evidence which resulted in the corporate Defendant and an additional individual Defendant later being added as Defendants to the Action

The Court noted that the parties had exchanged Affidavits of Records pursuant to Rules 5.5 and 5.6 and reviewed Rules 5.1 and 5.2. The Court noted that the records relevant and material to the allegations contained in the Statement of Claim must be identified as required under the Rules which would include records regarding communications with known Plaintiff customers, suppliers, and employees before and after the hiring of the individual Defendant. The Court held that this would also include the records relating to communications amongst and between the individual Defendants and the corporate Defendant prior to their departure from the Plaintiff. The Court ultimately determined that the Defendants did not adequately identify or disclose records that were in their control and which were relevant and material to the Action. The Court ordered that the Defendants’ complete Affidavit of Records be sworn and served within 120 days.

The Plaintiff also sought an injunction, relying on Rule 5.3, which would enable the ISS to oversee document production by the individual Defendants. The Court set out that ordering the ISS to take on a novel and continuing role was not warranted, noting that (1) it was not satisfied that requiring the ISS to undertake a new role would save costs, as the fundamental disagreement as to scope of documents that were producible had  been resolved; (2) in the event the Defendants did not provide sufficient Affidavit in Records in compliance with its decision, the Plaintiff was permitted to apply for relief which would be a more economical method than interposing the ISS into the process; and (3) utilizing the ISS as a mechanism for overseeing document production would contravene the fundamental principle, and that such Orders are to be granted sparingly and should be restricted in scope and duration.

The Court found that the Plaintiff was entitled to $1,500 in Costs from each of the Defendants, and that if they failed to provide sufficient Affidavits of Records, they should expect a much higher Costs Award as contemplated in Rule 5.12(1).