Can discovery be downsized in the name of proportionality?

The plaintiffs argue that discovery should not be downsized in the name of proportionality when the action involves weighty legal issues or where the monetary value in dispute is substantial. In support of this proposition they rely on Yim et al v. Song et al, 2016 ONSC 1707. In that case, Trimble J. held that proportionality is not an end in itself, but “is a principle which allows the court to do justice between the parties in a more streamlined way where the case merits this approach and justice can still be done.” Justice Trimble noted that cases which have limited the impact of proportionality on relevance are all cases of substantial monetary value or weighty legal issues. He did not find that proportionality has no application whenever a case engages important legal issues or carries substantial monetary value.

In Yim, Trimble J. relied on the decision of Perell J. in Ontario v. Rothmans, 2011 ONSC 2504. In Rothmans, Perell J. found that an expansionary approach to proportionality is wrong. He concluded that “a parsimonious proportionality principle provides a useful tool for cases large and small”: at para. 163. Justice Perell specifically rejected the notion that “because a case is important or the claim large, there should be more procedure not less procedure,” finding that the proportionality principle would lose its utility for large cases such as class proceedings “where justice can be done by reducing not expanding the procedure”: at para. 164. I agree.