New Rules of Court Update: No Document Disclosure Obligations for Petitions
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, addressing whether the new Civil Rules require Petitioners to disclose and produce documents.
In today’s case (Fern Castle Holdings Corp. v. Stonebridge Village Residence Ltd.) the Petitioner sought relief arguing that the Respondents took action that was ‘oppressive to the petitioner‘. In the course of the proceeding the Petitioner sought an order requiring the Respondents to produce a List of Documents pursuant to Rule 7-1. The Respondents opposed arguing that this requirement does not apply to Petitions but only to “an action“. Master Bouck agreed and dismissed the motion. In doing so the Court provided the following reasons with respect to the application of Rule 7-1:
[9] Rule 7-1(1) of the Supreme Court Civil Rules provides as follows:
7-1(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,
(a) prepare a list of documents in Form 22 that lists
(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and
(ii) all other documents to which the party intends to refer at trial, and
(b) serve the list on all parties of record.
(my emphasis)
[10] While this Rule has changed the scope of document disclosure, it has not changed the general rule that such disclosure is not required on a proceeding brought by petition.
[11] On a plain reading of Rule 7-1(1), it is impossible to import or apply document disclosure processes to this proceeding, even with the parties consent. The Rule can only apply to an “action” which is defined as a “proceeding started by a notice of civil claim”: Rule 1-1. Furthermore, the reference to the use of documents at trial confirms that the Rule does not apply to petitions.
[12] The Application Respondents suggest that the relief sought on this application can only be pursued when or if the petition is converted to an action. I agree. However, the petitioner did not specifically seek that relief in its application and I am reluctant to make an order converting the petition on my own motion.