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Pre-Litigation Police Disclosure Request Denied

When a lawsuit gets underway in the BC Supreme Court the Rules of Court give litigants significant powers to force disclosure from opposing parties and even non-parties.  If a formal lawsuit has not been started the  Court’s power to order disclosure becomes far more limited.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court, Chilliwack Registry.
In last month’s case (Dhindsa (Re)) the applicant was injured in a 2010 hit and run collision.  The police investigated the matter.  The applicant applied for an order compelling disclosure of the police file.  Orders such as these are routinely granted by consent once formal lawsuits are underway.  In this case no lawsuit was commenced.  The applicant’s lawyer argued that the Court could make the disclosure order using a remedy known as an “equitable bill of discovery“.
Mr. Justice Grist held that even if the Court did have such a right it was not appropriate to exercise on the facts of this case.  In dismissing the application the Court provided the following reasons:

[4] Counsel for Mr. Dhindsa has cited Kenney v. Loewen (1999), 64 B.C.L.R. (3d) 346 (S.C.) [Kenney], a decision of Madam Justice Saunders which references Glaxo Wellcome PLC v. Canada (Minister of National Revenue), 1998 CarswellNat 1388 (F.C.A.), 162 D.L.R. (4th) 433 [Glaxo]. The Glaxo case before the Federal Court of Appeal in turn cited the English House of Lords decision in Norwich Pharmacal Co. v. Commissioners of Customs and Excise, [1973] 2 All E.R. 943; [1974] A.C. 133 (H.L.).

[5] These decisions all recognize that an antique form of action for a remedy known as an equitable bill of discovery remains known to the law and, in appropriate cases, can be the sole remedy sought in a civil action.

[6] In short form, the bill of discovery would require a third party to reveal the identity of a person the plaintiff says has done them wrong. In Kenney, the plaintiff indicated that he had suffered damages as a result of a slander. He did not know the source of slander and the action for the bill of discovery was designed to force the defendant to reveal the person’s identity. At para. 33 ofKenney, Madam Justice Saunders listed the circumstances under which the remedy would be granted:

(a)        the plaintiff must show that a bona fide claim exists against the unknown wrongdoer;

(b)        the defendant must establish that the information is required in order to commence an action against the unknown wrongdoer, that is, the plaintiff must establish that disclosure will facilitate rectification of the wrong;

(c)        the defendant must be the only practicable source of the information;

(d)        there is no immunity from disclosure;

(e)        the plaintiff must establish a relationship with the defendant in which the defendant is mixed up in the wrongdoing. Without connoting impropriety, this requires some active involvement in the transactions underlying the intended cause of action.

(f)         disclosure by the defendant will not cause the defendant irreparable harm; and

(g)        the interests of justice favour granting the relief.

[7] In the affidavit filed in support of this action counsel for Mr. Dhindsa says at numbered items 6-8:

6.         I have not filed a Notice of Civil Claim on behalf of my client and require production of the Police File by the Surrey RCMP to ascertain the identity of the potential defendant(s) and whether or not there is sufficient evidence to ground a claim of negligence.

7.         If there is sufficient evidence to found a negligence action, I require the Police File to understand what the objective witness accounts of the Accident are so as to efficiently and correctly plead my client’s case, represent my client at trial and represent my client during settlement negotiations.

8.         I do not want to commence an action without first obtaining the Police File in order to adhere to Rule 1-3 of the Civil Rules of Court.

[8] Assuming for the moment that the application for the bill of discovery brought by way of a requisition satisfies Rule 2-1(2)(a) and Rule 17-1, the application is nonetheless deficient in providing the circumstances indicated in Kenney under sub-paragraphs (a) and (e). The affidavit indicates that Mr. Dhindsa was injured in the motor vehicle accident, but does not give any details to suggest the other driver was negligent. In fact, investigation of the circumstances is listed as one of the reasons for wanting to have access to the police file. Further, there is nothing to indicate that the Surrey RCMP are “mixed up in the wrong doing,” or were actively involved in, “the transactions underlying the intended cause of action.”

[9] The right to pre-action discovery may have merits beyond the strictures of an action for a bill of discovery, however, that form of proceeding is not applicable on the circumstances of this application.

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

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.