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Inspecting Your Opponent's Documents and Location: Rule 7-1(17)

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The BC Supreme Court Rules set out the requirements of parties to list relevant documents and make these available to opponents in litigation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the Court’s discretion addressing where and when documents can be inspected by opposing parties.
In today’s case (More Marine Ltd. v. Alcan Inc.) the Defendant’s list of documents included 125 boxes of materials which were stored in Kitimat, BC.   The Plaintiff lived in the lower mainland and argued that the documents need to be made available in Vancouver (the location of the Defendant’s lawfirm) for inspection.  The Defendant disagreed and argued that the documents should be inspected in Kitimat.  The Court sided with the Defendant and in doing so Mr. Justice Burnyeat provided the following reasons:

[4] Rule 7?1(15) of the Rules of Court provides:

A party who has served a list of documents on any other party must allow the other party to inspect and copy, during normal business hours and at the location specified in the list of documents, the listed documents except those documents that the listing party objects to producing.

[5] However, Rule 7?1(17) of the Rules of Court provides:

The court may order the production of a document for inspection and copying by any party or by the court at a time and place and in the manner it considers appropriate.

[6] While Rule 7?1(15) uses the words “must allow” and “at the location specified”, I am satisfied that the Court retains a discretion under Rule 7?1(17) of the Rules of Court to order production at a time and place “it considers appropriate”.  If there was no discretion available to the Court, then Rule 7?1(17) would be superfluous.

[7] In McLachlin and Taylor, the Learned Authors make this statement regarding the location specified under Rule 7?1(17):

Place specified for inspection should be reasonable.  Books or business records in use are frequently inspected at the place of business.  Other documents are commonly inspected at the office of the solicitor representing the party in questions.  (at p. 7?123)….

[9] Given the number of documents involved and the nature of the documents, it is unrealistic to expect that either party will want copies made of all of the documents…

[10] Here, it would be very costly to make copies of all of the documents in the 125 boxes and, accordingly, that is not an alternative that is available.  The Plaintiff alleges an exclusive contract to carry the product of the Defendant and a breach of that contract.  The documents to be inspected relate to work that was undertaken by third parties in alleged contravention of the contract between these parties.  A number of the documents are invoices relating to work allegedly lost and the damages flowing to the Plaintiff as a result of the work that was lost.  The many thousands of documents may well be summarized by agreement into several pages once totals are taken from the documents inspected in order to arrive at work which is said to be in contravention of the contract between the parties.  Accordingly, I cannot conclude that it will take weeks for a representative of the Plaintiff to examine the documents in the 125 boxes.

[11] Here, the business of the Plaintiff was carried on in Kitimat and these business records have been retained in storage in Kitimat.  In the circumstances, I am satisfied that I should exercise the discretion available to me to designate Kitimat as the place where the documents will be available for inspection and copying.  After initial inspection has been undertaken, it may well be that the principal of the Plaintiff may be in a position to provide specificity of the further documents to be inspected such that it will not be necessary for all 125 boxes of documents to be inspected.

[12] The documents on the List of Documents of the Defendant relating to the documents stored in the 125 boxes of materials in Kitimat will be made available by the Defendant in Kitimat.  Costs will be costs in the cause.

bc injury law, List of Documents, More Marine Ltd. v. Alcan Inc., Mr. Justice Burnyeat, Rule 7, Rule 7-1, Rule 7-1(15), Rule 7-1(17)

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