Scope of Pre-Trial Document Production Under the New BC Supreme Court Rules Discussed


As I’ve previously discussed, one of the biggest changes under the New BC Supreme Court Civil Rules is the test relating to pre-trial document production.  Under the former rules parties had to disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.
This new test is supposed to be narrower in scope than the old one.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, interpreting the new test for the first time.
In last week’s case (Biehl v. Strang) the Plaintiff sued the Defendants claiming damages for breach of contract.  The alleged contract between the parties was based in part on an a verbal agreement and partly based on the parties actions over the years.   The events in dispute occurred over a 4 year period.  The Plaintiff was alleged to have a history of illicit drug use during part of this period.  The Defendants challenged the reliability of the Plaintiff’s recollection and argued that this was hampered due to drug use.
The Defendants wished to further explore this issue and brought an application to force production of the Plaintiff’s personal diary as this apparently made reference to some of the Plaintiff’s illicit drug use.  The Defendant argued that this was material evidence because the reliability of the Plaintiff’s memory is a central issue in the lawsuit.  The Plaintiff opposed arguing that his diary is not material in the action.  Mr. Justice Punnett ultimately granted the motion for production.  In doing so the Court defined what “Material Fact” means under the new Rules of Court.  Mr. Justice Punnett provided the following reasons:

What is a Material Fact?

[16]        In Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada, 2009) at para. 2.50, relevance is distinguished from materiality:

§2.50   A distinction has also been drawn between relevance and materiality.  Evidence is material in this sense if it is offered to prove or disprove a fact in issue.  For example, evidence offered by a plaintiff in a conversion action to prove a loss of profit is not material since loss of profits cannot be recovered in such an action, and evidence that an accused charged with forcible entry is the owner of the land is immaterial since the offence can be committed by an owner.  This evidence may very well be immaterial, but it is also simply irrelevant.  This excluded evidence is no more required to make out the case than is evidence that the accused owns three other properties or owns a black dog for that matter.  There is no probative connection between the fact to be proved and the facts in issue as determined by the substantive law.  Little is added to the analysis by adding a concept of materiality, as different results do not depend on the distinction. The concept of materiality, however, requires the court to focus on the material issues in dispute in order to determine if the proffered evidence advances the party’s case.[Footnotes omitted.  Emphasis added.]

In other words, the requirement that the disclosure relate to a material fact limits the breadth of what is relevant.

[17]        The authors of The Law of Evidence in Canada define relevance at para 2.35:

§2.35   A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s A Digest of the Law of Evidence, where it is defined to mean:

… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:

For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other.  One fact is not relevant to another if it does not have real probative value with respect to the latter.

[18]        In January 2009, Rule 14.01(1)(a) of the Nova Scotia Civil Procedure Rules changed document production in Nova Scotia by requiring a judge to determine relevancy “by assessing whether a judge presiding at the trial or hearing of the proceeding would find the document … relevant or irrelevant”.

[19]        The Nova Scotia Supreme Court in considering the new rule in Halifax Dartmouth Bridge Commission v. Walter Construction Corporation, 2009 NSSC 403, 286 N.S.R. (2d) 179 at para. 18, stated:

[18]      … As to what is meant by relevancy, in Sydney Steel v. Mannesmann Pipe (1985), 69 N.S.R. (2d) 389 (S.C.T.D.), Hallett, J. (as he then was) stated, at paras. 14-18:

[17] In the Law of Evidence in Civil Cases by Sopinka and Lederman, at p. 14 the authors also make reference to the quotation from Stephen’s Digest as to the meaning of relevance and make the following statement that is applicable and worthy of consideration when assessing the relevancy of the documents that are before me on this application:

“The facts in issue are those facts which the plaintiff must establish in order to succeed together with any fact that the defendant must prove in order to make out his defence. It is seldom possible to prove a case or establish a defence solely by direct evidence as to the facts in issue and, therefore, the law admits evidence of facts, which, although not themselves in issue, are relevant in the sense that they prove or render probable the past, present or future existence (or non-existence) of any fact in issue.

“The facts in issue are controlled by the date of the commencement of the action. All facts essential to the accrual of a cause of action must have occurred prior to commencement of the action but evidence may be tendered as to facts occurring after the commencement of the action if they merely tend to prove or disprove the existence of the facts in issue. On the other hand any fact giving rise to a defence need not have occurred before the commencement of the action. An admission after the issue of the writ by one of the parties is admissible and conduct which is tantamount to an admission is equally admissible.

The state of mind of a party may be proved as a fact in issue or as tending to prove or disprove a fact in issue. Thus the knowledge of a party may be directly in issue or relate to a matter directly in issue.” [emphasis by Hallett J.]

Is the Reliability of the Plaintiff’s Memory a Material Fact?

[25]        The defendants argue that the reliability of the plaintiff’s evidence, given the potential memory loss from drug use, is at issue in this case. The plaintiff asserts that reliability includes credibility and a line cannot be drawn between reliability and credibility. Therefore the information relates only to credibility and as such is a non-material collateral fact.

[26]        “Reliable” is defined in the Concise Oxford English Dictionary, 11th ed., as the “able to be relied on.” Credibility relates to whether or not the court accepts or believes the evidence. In assessing credibility, the court may consider how reliable the evidence is.

[27]        In my view, the error in the plaintiff’s position is conflating reliability and credibility when the former is but part of the latter. The ability of the plaintiff to remember is, in my opinion, relevant to proof of a material fact, namely the existence of a contract based on oral terms.

[28]        Frequently courts take into account factual considerations, such as the ability of a witness to see or hear what occurred, in determining whether evidence is reliable and should be accepted. Surely, if an individual has suffered damage to his cognitive or memory functions, that is equally a relevant fact.

[29]        I am satisfied that, if otherwise admissible, the requested production is relevant and could prove or disprove a material fact. Rule 7-1 does not restrict production to documents that in themselves prove a material fact. It includes evidence that can assist in proving or disproving a material fact.

bc injury law, Biehl v. Strang, discovery, document disclosure, document production, Material Fact, material facts, Mr. Justice Punnett, Rule 1-3(2), Rule 7, Rule 7-1(1)

Comments (99)

  • I simply want to say I’m beginner to weblog and absolutely liked you’re page. Almost certainly I’m going to bookmark your blog post . You absolutely come with terrific articles. Bless you for sharing your website.

  • I just want to mention I am just new to blogging and site-building and honestly savored this blog site. Most likely I’m likely to bookmark your website . You certainly have terrific stories. Appreciate it for revealing your website page.

  • You really make it appear really easy with your presentation but I find this topic to be actually something that I feel I might never understand. It seems too complicated and very vast for me. I’m taking a look forward on your subsequent post, I¡¦ll try to get the hang of it!

  • I believe that avoiding prepared foods may be the first step for you to lose weight. They can taste very good, but processed foods currently have very little vitamins and minerals, making you consume more simply to have enough energy to get through the day. In case you are constantly consuming these foods, transitioning to whole grains and other complex carbohydrates will let you have more strength while eating less. Thanks alot : ) for your blog post.

  • Thanks for every other informative site. The place else may just I am getting that type of info written in such an ideal means? I have a venture that I am simply now operating on, and I have been on the glance out for such info.

  • Hi, I think your site might be having browser compatibility issues. When I look at your blog in Ie, it looks fine but when opening in Internet Explorer, it has some overlapping. I just wanted to give you a quick heads up! Other then that, great blog!

  • I believe that is one of the so much important information for me. And i’m glad reading your article. However want to remark on some common things, The site taste is perfect, the articles is really excellent : D. Good task, cheers

  • I would like to thank you for the efforts you have put in writing this web site. I am hoping the same high-grade web site post from you in the upcoming also. In fact your creative writing abilities has encouraged me to get my own site now. Actually the blogging is spreading its wings quickly. Your write up is a great example of it.

  • Wonderful story, reckoned we could combine a handful of unrelated data, nevertheless actually really worth taking a appear, whoa did one study about Mid East has got a lot more problerms also

  • Hey just wanted to give you a quick heads up. The words in your article seem to be running off the screen in Firefox. I’m not sure if this is a formatting issue or something to do with browser compatibility but I figured I’d post to let you know. The style and design look great though! Hope you get the problem solved soon. Many thanks

  • I would like to express my thanks to the writer for rescuing me from this type of difficulty. Because of exploring through the internet and obtaining concepts that were not productive, I figured my entire life was over. Being alive without the solutions to the problems you have resolved through your main article is a crucial case, as well as the kind that could have adversely affected my career if I had not discovered your blog. Your main skills and kindness in maneuvering all the stuff was useful. I don’t know what I would have done if I had not discovered such a step like this. I’m able to at this point look forward to my future. Thanks very much for this impressive and sensible help. I will not think twice to refer your blog post to anyone who wants and needs assistance on this issue.

  • Does your blog have a contact page? I’m having a tough time locating it but, I’d like to send you an e-mail. I’ve got some ideas for your blog you might be interested in hearing. Either way, great blog and I look forward to seeing it expand over time.

  • I have been exploring for a little for any high quality articles or weblog posts on this sort of house . Exploring in Yahoo I finally stumbled upon this site. Reading this information So i am happy to convey that I’ve a very just right uncanny feeling I discovered exactly what I needed. I such a lot no doubt will make certain to don’t overlook this site and provides it a look regularly.

  • Great post. I was checking constantly this weblog and I am impressed! Extremely helpful info particularly the last part 🙂 I care for such info much. I used to be looking for this particular info for a long time. Thanks and good luck.

  • I’m not that much of a internet reader to be honest but your blogs really nice, keep it up! I’ll go ahead and bookmark your website to come back down the road. Cheers

  • Good day! I know this is kinda off topic nevertheless I’d figured I’d ask. Would you be interested in trading links or maybe guest authoring a blog article or vice-versa? My blog covers a lot of the same subjects as yours and I believe we could greatly benefit from each other. If you might be interested feel free to shoot me an email. I look forward to hearing from you! Wonderful blog by the way!

  • What i do not realize is actually how you are not really much more well-liked than you might be right now. You are very intelligent. You realize therefore considerably relating to this subject, produced me personally consider it from numerous varied angles. Its like men and women aren’t fascinated unless it is one thing to accomplish with Lady gaga! Your own stuffs outstanding. Always maintain it up!

  • You actually make it appear really easy with your presentation however I in finding this topic to be actually one thing which I feel I’d by no means understand. It kind of feels too complicated and very large for me. I’m having a look forward for your next post, I¡¦ll attempt to get the dangle of it!

  • whoah this weblog is excellent i like studying your articles. Stay up the great work! You understand, many persons are looking around for this information, you can aid them greatly.

  • I’m not that much of a online reader to be honest but your sites really nice, keep it up! I’ll go ahead and bookmark your site to come back later. Many thanks

  • I like the valuable information you provide in your articles. I’ll bookmark your weblog and check again here frequently. I’m quite sure I’ll learn many new stuff right here! Best of luck for the next!

  • Appreciating the time and energy you put into your blog and in depth information you offer. It’s awesome to come across a blog every once in a while that isn’t the same outdated rehashed material. Great read! I’ve bookmarked your site and I’m including your RSS feeds to my Google account.

  • I’m truly enjoying the design and layout of your blog. It’s a very easy on the eyes which makes it much more enjoyable for me to come here and visit more often. Did you hire out a designer to create your theme? Outstanding work!

  • What i do not understood is if truth be told how you’re not actually a lot more smartly-favored than you may be right now. You are very intelligent. You understand thus significantly with regards to this topic, made me for my part believe it from a lot of various angles. Its like women and men aren’t interested unless it’s one thing to do with Lady gaga! Your individual stuffs great. All the time maintain it up!

  • Thanks for another informative site. Where else could I get that kind of information written in such an ideal way? I’ve a project that I’m just now working on, and I have been on the look out for such info.

  • Excellent beat ! I would like to apprentice while you amend your web site, how can i subscribe for a blog website? The account helped me a acceptable deal. I had been a little bit acquainted of this your broadcast offered bright clear idea

  • Youre so cool! I dont suppose Ive read something like this before. So good to search out any person with some unique thoughts on this subject. realy thanks for beginning this up. this web site is one thing that’s wanted on the internet, somebody with a bit originality. useful job for bringing something new to the internet!

  • Aw, this was a very nice post. In concept I would like to put in writing like this additionally – taking time and actual effort to make an excellent article… but what can I say… I procrastinate alot and certainly not seem to get one thing done.

  • Youre so cool! I dont suppose Ive read anything like this before. So good to search out any person with some original thoughts on this subject. realy thanks for beginning this up. this web site is one thing that is wanted on the web, somebody with just a little originality. helpful job for bringing one thing new to the internet!

  • I like what you guys are up also. Such smart work and reporting! Carry on the superb works guys I’ve incorporated you guys to my blogroll. I think it will improve the value of my site :).

  • It is in reality a great and helpful piece of info. I’m satisfied that you shared this useful info with us. Please keep us informed like this. Thank you for sharing.

  • Hi, i think that i saw you visited my blog so i came to “return the favor”.I’m trying to find things to improve my site!I suppose its ok to use a few of your ideas!!

  • I really like your blog.. very nice colors & theme. Did you design this website yourself or did you hire someone to do it for you? Plz reply as I’m looking to construct my own blog and would like to find out where u got this from. thanks

  • Greetings from California! I’m bored to tears at work so I decided to check out your blog on my iphone during lunch break. I love the info you present here and can’t wait to take a look when I get home. I’m amazed at how quick your blog loaded on my phone .. I’m not even using WIFI, just 3G .. Anyhow, superb blog!

  • whoah this weblog is great i really like studying your articles. Keep up the good paintings! You already know, a lot of individuals are searching around for this information, you can help them greatly.

  • Thanks for the helpful content. It is also my opinion that mesothelioma cancer has an really long latency period of time, which means that symptoms of the disease might not exactly emerge right up until 30 to 50 years after the initial exposure to mesothelioma. Pleural mesothelioma, and that is the most common variety and has effects on the area about the lungs, will cause shortness of breath, chest muscles pains, plus a persistent coughing, which may produce coughing up body.

  • you’re truly a good webmaster. The site loading speed is amazing. It sort of feels that you are doing any distinctive trick. In addition, The contents are masterpiece. you’ve done a fantastic job on this matter!

  • Thanks for the sensible critique. Me and my neighbor were just preparing to do a little research about this. We got a grab a book from our area library but I think I learned more from this post. I’m very glad to see such fantastic information being shared freely out there.

  • Hey I am so glad I found your web site, I really found you by accident, while I was browsing on Digg for something else, Regardless I am here now and would just like to say kudos for a marvelous post and a all round exciting blog (I also love the theme/design), I don’t have time to read it all at the moment but I have saved it and also added in your RSS feeds, so when I have time I will be back to read more, Please do keep up the excellent work.

  • Hello! I know this is kind of off topic but I was wondering which blog platform are you using for this site? I’m getting tired of WordPress because I’ve had issues with hackers and I’m looking at alternatives for another platform. I would be great if you could point me in the direction of a good platform.

  • Hello there! I know this is kind of off topic but I was wondering if you knew where I could locate a captcha plugin for my comment form? I’m using the same blog platform as yours and I’m having trouble finding one? Thanks a lot!

  • Whats Taking place i am new to this, I stumbled upon this I have found It absolutely helpful and it has helped me out loads. I’m hoping to give a contribution & assist other users like its aided me. Great job.

  • Hi my friend! I wish to say that this article is amazing, great written and include approximately all significant infos. I would like to look more posts like this.

  • In the awesome design of things you actually receive an A+ just for effort and hard work. Exactly where you confused me was on the specifics. You know, people say, the devil is in the details… And that couldn’t be much more correct at this point. Having said that, let me tell you precisely what did deliver the results. The text can be extremely convincing which is probably why I am taking an effort in order to opine. I do not make it a regular habit of doing that. Secondly, despite the fact that I can easily see the jumps in reason you come up with, I am not necessarily confident of just how you appear to connect the points that make the conclusion. For the moment I will, no doubt yield to your point but wish in the future you actually connect the dots much better.

  • My brother recommended I might like this blog. He was totally right. This post truly made my day. You cann’t imagine simply how much time I had spent for this information! Thanks!

  • Can I just say what a relief to search out somebody who truly knows what theyre speaking about on the internet. You positively know methods to bring a problem to gentle and make it important. Extra folks must learn this and understand this facet of the story. I cant imagine youre no more in style because you definitely have the gift.

  • Its like you read my mind! You seem to know a lot about this, like you wrote the book in it or something. I think that you could do with a few pics to drive the message home a bit, but instead of that, this is excellent blog. A great read. I will certainly be back.

  • Hello very cool web site!! Guy .. Excellent .. Wonderful .. I’ll bookmark your web site and take the feeds additionally…I am happy to seek out so many useful info here in the submit, we want develop extra techniques in this regard, thank you for sharing. . . . . .

  • Wonderful story, reckoned we could combine a handful of unrelated data, nevertheless seriously worth taking a appear, whoa did a single study about Mid East has got far more problerms as well

  • Pretty nice post. I just stumbled upon your blog and wished to say that I have really enjoyed surfing around your blog posts. In any case I’ll be subscribing to your rss feed and I hope you write again very soon!

  • As I site possessor I believe the content material here is rattling wonderful , appreciate it for your efforts. You should keep it up forever! Best of luck.

  • I’m so happy to read this. This is the type of manual that needs to be given and not the accidental misinformation that is at the other blogs. Appreciate your sharing this greatest doc.

  • Good – I should certainly pronounce, impressed with your web site. I had no trouble navigating through all tabs as well as related info ended up being truly simple to do to access. I recently found what I hoped for before you know it at all. Quite unusual. Is likely to appreciate it for those who add forums or something, website theme . a tones way for your customer to communicate. Excellent task.

  • Heya i am for the primary time here. I found this board and I in finding It really useful & it helped me out much. I am hoping to provide something back and help others such as you helped me.

  • Good post. I learn something tougher on different blogs everyday. It should always be stimulating to learn content material from other writers and practice somewhat something from their store. I’d prefer to use some with the content on my weblog whether you don’t mind. Natually I’ll offer you a link in your web blog. Thanks for sharing.

  • I am curious to find out what blog platform you have been working with? I’m experiencing some small security problems with my latest website and I’d like to find something more secure. Do you have any recommendations?

  • Hello very nice site!! Man .. Beautiful .. Superb .. I’ll bookmark your site and take the feeds additionally…I am satisfied to search out a lot of useful info right here within the publish, we want work out more techniques in this regard, thanks for sharing. . . . . .

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer