Rule 30.10 Motions in Ontario Personal Injury Litigation

Much of the evidence that is required to prove a personal injury action is exchanged through ordinary documentary discovery. The plaintiff produces the clinical, employment and financial records in their possession, control or power. The defendants produce their own relevant records. Examinations for discovery are then used to identify gaps and pursue further production.

Those disclosure obligations are imposed on the parties, although physical custody is not necessarily determinative. Under Rule 30.01, a document is deemed to be within a party’s power if that party is entitled to obtain the original or a copy and the party seeking it is not. Some records held by an employer, insurer, institution or other third party may therefore remain subject to ordinary party disclosure.

Rule 30.10 becomes relevant if an important document is in the possession, control or power of a person who is not a party and cannot be obtained through the ordinary discovery process.

A police service might hold witness statements and collision reconstruction evidence. Neighbouring businesses could have surveillance video. A municipality, employer, institution or contractor may possess records bearing directly on liability, causation or damages without having any involvement in the lawsuit itself.

In serious personal injury actions, Ontario personal injury lawyers could need to bring a Rule 30.10 motion if the evidence required to prove liability or damages is held by a non-party and cannot be obtained through ordinary documentary discovery.

Rule 30.10 of Ontario’s Rules of Civil Procedure permits the court to order a non-party to produce a document for inspection. The document must not be privileged, it must be relevant to a material issue in the action, and the court must be satisfied that it would be unfair to require the moving party to proceed to trial without discovering it.

The Rules deliberately apply a higher threshold than the test governing production between parties.

The Rule 30.10 test after Derenzis

The Ontario Court of Appeal’s decision in Derenzis v. Ontario, 2026 ONCA 344 is an important recent authority on the scope of Rule 30.10.

The plaintiffs in Derenzis had sought approximately 400 internal records from Tribunals Ontario, including draft decisions and internal communications relating to proceedings before the Licence Appeal Tribunal. The motion judge ordered substantial production. The Court of Appeal set the order aside.

The decision carefully delineates a distinction between relevance to an issue and relevance to a material issue. A pleading can contain numerous factual allegations, but not every disputed allegation is capable of affecting the outcome of the action. The requested document must have a reasonable possibility of being logically probative of an issue that could influence the result.

The Court also rejected submissions that request it create an expansive conception of unfairness. It was not enough for the plaintiffs to say that the records would assist them in developing their case or understanding how the tribunal had handled their proceedings.

The moving party must explain why the litigation cannot fairly proceed without pretrial access to the particular documents sought. General statements about the value of full disclosure or the difficulty of proving a claim do not satisfy the rule.

Although Derenzis did not arise from a conventional tort action, its reasoning does carry some application for personal injury litigation. The seriousness of the injury, the size of the claim and the complexity of the liability dispute do not relax the Rule 30.10 test. The motion still has to be tied to a defined issue and a specific evidentiary need.

Relevance is document-specific

Documents do not become producible merely because it relates to the accident, the plaintiff, the defendant or a subsequent investigation. The motion should identify the issue and the court will have to decide and explain how the document assists in resolving it.

Suppose a plaintiff seeks an entire police file following a motor vehicle collision. The fact that the police investigated the same collision establishes a connection, but not necessarily materiality. A more persuasive motion identifies the portions of the file that may bear on a disputed issue: measurements relevant to the point of impact, an independent witness statement addressing the traffic signal, photographs showing vehicle resting positions or a reconstruction opinion concerning speed.

Similarly, for institutional records, an internal incident report could be relevant because it records a contemporaneous admission, identifies a previously unknown witness or describes the condition of the premises before it was changed. A request for every internal communication concerning the event requires a more substantial explanation.

Rule 30.02 requires party disclosure of every document relevant to any matter in issue in the action that is or has been in the party’s possession, control or power. Rule 30.10 requires a non-party document to be relevant to a material issue.

Fairness requires more than usefulness

Even if a document is relevant to a material issue, the court must still decide whether it would be unfair to require the moving party to proceed to trial without discovering it.

That question is not answered by showing that the document would be useful. Most relevant documents would be useful.

The court will consider the importance of the evidence, whether an equivalent source exists, what has already been learned through party discovery, whether the document is needed before trial and what burden production would place on the non-party. The non-party’s relationship to the dispute may also be relevant. A closely aligned person or organization may stand in a different position from an independent stranger with no interest in the litigation.

In Philip Services Corp. v. Deloitte & Touche, 2015 ONCA 60, the Court of Appeal confirmed that it is not inherently unfair to require a litigant to proceed without compelled production of every relevant document held by a third party. Rule 30.10 begins from the premise that non-parties are ordinarily outside the discovery process. The moving party must justify bringing them into it.

The proportionality considerations in Rule 29.2 reinforce that restraint. The court must consider whether the time required for production would be unreasonable, whether the expense would be unjustified, whether production would cause undue prejudice or interfere with the orderly progress of the action, and whether the document is readily available from another source. The overall volume of material sought must also be considered.

A request can therefore still be refused or narrowed even where the records have some relevance.

Actava TV, Inc. v. Matvil Corp., 2021 ONCA 105 did not arise from a domestic Rule 30.10 motion. It concerned an application to enforce a letter of request issued in American litigation. The Court of Appeal nevertheless treated Ontario’s restrictions on non-party discovery, including Rule 30.10, as relevant to whether the request should be enforced.

The request sought extensive confidential financial and valuation information from a non-party competitor. The Court found the request broad and speculative and identified no sufficient connection between the records sought and the issues in the underlying litigation. The Court actually went out of the way to expressly conclude that a comparable request made in an Ontario proceeding under Rule 30.10 would not have been granted.

Timing and the state of the pleadings

In Walker v. Doxtator, 2018 ONSC 2112, a motor vehicle action in which the plaintiff sought a fuller Crown brief after having recieved a heavily redacted file through a freedom-of-information request. The available materials encompassed police reports, officer notes, witness statements, paramedic information and collision reconstruction evidence.

The motion was brought before statements of defence had been delivered and before one defendant had been served. The court dismissed it without prejudice because the material issues had not yet been sufficiently defined. The statement of claim showed what the plaintiff alleged, but not what the defendants would admit, deny or place in issue.

Walker does not establish an inflexible rule that pleadings must always be closed before a Rule 30.10 motion can succeed. It does show why an early motion can be difficult. A plaintiff may anticipate disputes over speed, visibility, contributory negligence or causation, but the court should not have to infer the issues from counsel’s experience or from the claim alone.

The timing problem is different if the evidence is at risk of being destroyed. This matters when considering surveillance footage and electronic records that may be overwritten long before pleadings close. Preservation should therefore be addressed immediately, even where the basis for final production has not yet matured.

Building the evidentiary record

Motions that are brought under Rule 30.10 should do more than convey counsel’s belief that the documents exist and will assist the case.

The affidavit requires establishing a reasonable basis for believing that the non-party possesses, controls or has power over the requested records. It should describe them with enough precision that the responding party and the court understand what is being sought. It should then identify the material issue to which each category relates.

The steps already taken to obtain the records will often be important. Has the non-party refused a written request? Could the records be obtained through an authorization? Was a freedom-of-information request made? Were related documents requested at discovery? Is the same information available through a party, a public record or another witness?

Those questions bear directly on fairness. Compelled production is much more difficult to justify where the document or its informational equivalent is readily available elsewhere.

The affidavit should also address why production is required before trial. The document may be needed to conduct a meaningful examination for discovery, retain an expert, test a party’s account, assess whether an amendment is required or prepare a case on liability that cannot sensibly be developed without it.

It is not necessary to prove that the action will fail without the document. The evidence should nevertheless show more than convenience.

The motion must be brought on notice to every other party and to the non-party from whom production is sought. Rule 30.10 requires the non-party to be served personally or by an authorized alternative to personal service.

Police and Crown records

Police and Crown files are among the more frequent sources of Rule 30.10 motions in personal injury litigation. An investigation may generate evidence that is not contained in the standard motor vehicle accident report: scene photographs, officer notes, witness statements, measurements, reconstruction material, video, dispatch records, expert reports and statements made during the criminal investigation.

Those records may become important in a motor vehicle action, a fatality case, an assault claim or another civil proceeding arising from conduct that was also investigated by police. They are not automatically producible.

The procedure established in D.P. v. Wagg, 2004 CanLII 39048 (ON CA) recognizes that criminal disclosure may engage interests extending beyond those of the civil parties. A Crown brief may contain privileged material, personal information belonging to witnesses, information relating to an ongoing investigation or records whose wider dissemination could prejudice another protected interest.

Ifa civil party received a Crown brief through criminal disclosure, the existence of the relevant documents must be addressed through the documentary discovery process, but production is still subject to screening. The Attorney General and the police service must have an opportunity to review the proposed disclosure and raise any objections.

Where the Crown or police retain the records as non-parties, the party seeking production may have to satisfy both Rule 30.10 and the Wagg screening process unless a consensual arrangement can be reached.

The resulting order can be tailored. Irrelevant personal information may be redacted. Access may be limited to counsel or experts. Conditions may be imposed on copying, dissemination and use. The existence of privacy interests does not necessarily prevent production, but those interests should be confronted rather than treated as an afterthought.

Vachon and investigative records relevant to damages

Vachon v. Titley, 2013 ONSC 5227 shows that police and Crown records may remain relevant even is liability has been admitted.

The defendant had been convicted following a collision that caused the death of the plaintiff’s father. The plaintiff sought the Crown brief and investigation file because there was evidence that the defendant may have been texting while driving.

The records were sought in connection with the plaintiff’s claim for nervous shock, psychological trauma and suffering. The court accepted that witness statements and investigative information concerning the circumstances of the collision could bear on those damages. With the Crown consenting and little prejudice arising from production, the order was granted.

Video, electronic records and incident documentation

The definition of “document” under Rule 30.01 is broad enough to entail sound recordings, video, photographs, plans, maps and electronically stored data and information.

Third-party video is sometimes treated as though its importance is self-evident. A recording may provide the only neutral account of how an incident occurred, but the moving party must still establish that the requested recording exists, that it is in the non-party’s possession, control or power and that it relates to a disputed material issue.

The same applies to electronic access logs, dispatch recordings, equipment data and internal incident records. A generalized request for everything relating to an accident may be difficult to defend. A request for video from identified cameras during a defined period is easier to connect to the issues and easier for the non-party to answer.

Conclusion

Rule 30.10 provides a route to being able to obtain third party evidence that ordinary documentary discovery cannot reach. It is not a general right to obtain potentially useful records from anyone connected to the events in dispute.

The moving party must identify non-privileged documents that are logically probative of a material issue and explain why the litigation cannot fairly proceed without pretrial production. The evidence should address attempts made to obtain the information from alternative sources, timing, proportionality and the effect of the proposed order on the non-party.

In serious personal injury actions, those questions most frequently arise in relation to police investigations, Crown briefs, surveillance footage, electronic records, employment files and institutional documents. When the motion is properly framed, non-party production can shape discovery strategy, expert evidence, settlement analysis and trial preparation.

Foster Injury Law acts in serious personal injury litigation across Ontario, including cases in which establishing proof of liability, causation or damages depends on evidence held by police services, public institutions, employers or other non-parties.