Relevant and Proportional: A Case Analysis Surrounding Production of Documents in Litigation
Background
The Ontario Superior Court of Justice released an Endorsement in George W. Corporation v. Gomma, 2026 ONSC 5811 on October 14, 2026, in relation to a motion brought by the plaintiffs for the production of further disclosure and a further and better affidavit of documents.
In the broader litigation, the plaintiff alleges a breach of contract and a breach of the duty of good faith against the defendant. The parties had a contractual relationship relating to vehicle sales.
The plaintiffs’ motion was brought in advance of cross-examinations on affidavits in the context of a larger motion by the plaintiffs for a Mareva injunction, requests for additional documentary production, and orders that the defendants be held in contempt. A timetable was imposed by the court in respect of the larger motion, the varying of which is presently under further appeal.
This decision deals specifically with the production by the defendant of certain key documents. The key documents in dispute are:
- Banking and financial records;
- Records relating to sales of vehicles to Canada Drives;
- Records relating to sales of other vehicles by the defendants;
- Documents relating to the acquisition, ownership, operation, financing, transfer, sale or disposition of Correct Auto Collision Corp. by the defendants;
- All documentary records referred to, relied upon, summarized, described, or otherwise forming the factual foundation of the affidavit of the defendant; and,
- A further and better Affidavit of Documents.
Review of Law
In paragraphs 19 to 23 of the Endorsement, Associate Justice Glick sets out clearly and concisely the state of the law in respect of court orders surrounding document production.
The court relies on the Court of Appeal decision in Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310, at the outset, which stands for the proposition that parties must comply with their document production obligations without the need for the court’s intervention.
Associate Justice Glick also reviewed the relevant provisions of the Rules of Civil Procedure, including subrule 30.02(1), which requires parties to disclose every document relevant to any matter in issue that is in their power, possession or control. Subrule 30.03(1) requires service of an affidavit of documents “disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.” Rule 29.2.03 sets out the considerations for the court that may go against ordering production of certain documents.
Glick J.A. provides at para 21 a brief review of the relevant case law surrounding document productions, which is as follows:
[21] As Associate Justice Robinson stated at para. 5 of Aidoo v. Durbejai, 2026 ONSC 1951, “it is now trite law that relevance is determined by reference to the pleadings, which set out the issues in dispute. Documents relevant to those issues must be produced. The documents that the parties are entitled to have produced is a matter of law. It is not a matter for the exercise of discretion: Denault v Alplay, 2016 ONSC 1618 at paras. 11-13.” Similarly, Justice Henderson stated at para. 15 of 1546866 Ontario Inc. (Enertec Engineering) v. eNature Greenshouses Inc., 2025 ONSC 7050 that “a document or item of evidence will not be relevant unless it is logically connected to and tending to prove or disprove a matter in issue as defined by the pleadings.” Justice Henderson was dealing with a 30.10 motion, but the test for relevance is the same.
His Honour then proceeded to apply the above principles to the case at bar.
Result
Glick J.A. addressed each of the disputed key documents, applying the law as set out above.
Glick J.A. ordered the banking and financial records produced. Although the defendants argued that this was a request for “highly intrusive financial information” and that the plaintiff could also obtain the sought after information through his own records, these records were found to be highly relevant to the allegations and not obtainable from the plaintiff’s own records given the core allegation that the records were falsified and proper amount owing to them was not paid. Unrelated banking information could be redacted to address the concern about disclosure of private information.
With respect to the Canada Drives Sales Records, Glick J.A. determined these records are relevant and noted that the defendants’ position that “records are not available” is problematic. It was noted that the defendants had not disclosed what actions were taken to obtain the records. The defendants were ordered to conduct a further search, and produce the records if found, or list the records in Schedule “C” as required by the Rules, if not found.
Glick J.A. noted that the relevance of records relating to the sales of other vehicles was not fully articulated by the plaintiff, but found that they were relevant and ordered production of these records nonetheless on the basis of the pleadings. The defendants argued that these records could be requested as undertakings at discovery, but this argument was rejected by the court. In doing so, Glick J.A. wrote, “[t]he documents are relevant, the request is proportional, and as such the documents must therefore be produced”.
With respect to the records relating to the purchase by the defendants of a company called Correct Auto Collision Corp., the defendants submitted that they had already produced all relevant documents in relation to this request. The court held that the plaintiffs had failed to provide evidence that there were further documents to be produced, and therefore these records were not ordered produced.
Lastly, the plaintiffs sought production of documents referenced in the defendants’ affidavit. Although most documents had been appended, there were two documents that were not: the Dealer Authorization Letter and a search warrant. The Dealer Authorization Letter was explicitly referenced in the affidavit and the Statement of Defence and was ordered produced. The search warrant was referenced in the affidavit in the context of the affiant denying any knowledge with respect to a search warrant. The search warrant was therefore not ordered produced.
In the context of documents referenced in the affidavit, Glick J.A. provides direction with respect to productions in the context of affidavits at paras 47-48:
[47] Aside from these two documents, Mr. Gomaa produces the documents referred to in the affidavit. I appreciate that Mr. Gomaa does in some cases describe events or issues without producing any supporting documentation, but in those cases the Plaintiffs’ recourse is cross-examination and not pre-emptive production. [48] For example, at paragraph 26 of his affidavit, Mr. Gomaa states he was contacted by Canada Drives which advised that one of the cars that had been sold to it had an engine issue. Mr. Gomaa describes that event but does not refer to any documents. The Plaintiffs say that Mr. Gomaa ought to produce any documents associated with that transaction in advance of cross-examination. I disagree. In the absence of the mention of any document, there is no right to inspect, and also no basis for the court to make an order for pre-emptive production of documents that may or may not exist. Mr. Kladich may cross-examine Mr. Gomaa and may make requests for undertakings depending on the answers given, but there is no basis to make any production order.
The defendants were also ordered to produce a further and better affidavit of documents that includes the documents ordered to be produced in this Endorsement.
Key Takeaways
This Endorsement contains a clear guide with respect to the law and application in respect of documentation to be produced in litigation. It also provides procedural guidelines that counsel may reference in deciding how to proceed with respect to obtaining relevant documents.
The “Discussion” section of this Endorsement, which contains the application of law to the specific documents in this case, touches upon redactions, documents to be included in Schedule “C”, timing of production and requests for production, the plaintiff’s onus to prove relevance and proportionality and the requirements for production of documents in relation to affidavits.
This Endorsement may serve as a guideline to counsel in numerous situations surrounding document disclosure in litigation.