Tag: Rule 7-1

Exclusion of Witnesses Results in New Trial in Chronic Pain Case

Written by admin on August 25, 2011. Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Civil Procedure, ICBC Privacy Issues. 46 Comments on Exclusion of Witnesses Results in New Trial in Chronic Pain Case

This week the BC Court of Appeal released reasons for judgement ordering a new trial following a chronic pain case which resulted in a $525,000 damage assessment.
In this week’s case (Houston v. Kine) the Plaintiff was injured in a 2006 collision. She allegedly suffered from PTSD and a chronic pain disorder as a result of the crash. The matter went to trial although did not conclude in the time initially allotted.
There was a 5 month gap before the trial recommenced. During this break ICBC undertook surveillance of the Plaintiff over two periods of time. The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court. As a result the trial judge refused to let the evidence in. The Court went further, however, and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.
The Defendants appealed arguing that the witnesses were wrongly excluded. The BC Court of Appeal agreed and found that while “the defendants’ choice at trial to withhold the existence of the videotapes….was inappropriate” and that this evidence was rightly excluded it was improper to exclude the witnesses themselves to testify. In ordering a new trial the BC Court of Appeal provided the following reasons:

[31] The obvious difficulty with the viva voce evidence was that the observers were unknown to the defendants prior to the hiatus in the trial. The earliest that they could have been identified was in November of 2009. By then, the plaintiff’s preparation for trial was all but over. To constrain the defendants’ ability to react to the plaintiff’s evidence to “prevent surprise or ambush” in my view unfairly restricted their ability to have the proceeding determined on its merits. As the trial judge accepted that there was no restriction on calling lay witnesses, she erred in imposing that restriction respecting witnesses who could comment on the plaintiff’s activities during the hiatus in the trial.

[32] The trial judge’s second reason for refusing to allow the observation witnesses to testify was that:

It would be inconsistent with my previous order and with the objects of the Rules, expressed in R. 1(5), “to secure the just, speedy and inexpensive determination of every proceeding on its merits,” to allow the defendants to, in effect, ambush the plaintiff with this evidence, which has been disclosed only recently.

[33] In my view the trial judge here misapplied Rule 1(5), focussing on speed in the completion of the proceedings at the expense of their merits. The Rule and the third factor in Stoneemphasize the importance of the determination of a proceeding on its merits. In order to determine a proceeding on its merits, the admissible evidence that is tendered by a party and is relevant to matters in issue should be considered.

[34] In addition, given that the original trial estimate was exceeded by the plaintiff’s case, necessitating the adjournment of the trial that caused the hiatus that brought about the acquisition of new evidence by the defendants, I am unable to accept that the delay resulting from the proposed evidence should have been treated any differently from the delay that was occasioned by the initial inadequate trial time estimate. The failure to do so prevented the determination of these proceedings on their merits. I conclude that the trial judge erred in law in refusing to permit the witnesses to give viva voce evidence at the trial…

[36] Here, the credibility of the plaintiff was a critical factor in the trial judge’s assessment of quantum, and the evidence of the observers was intended to directly address the plaintiff’s credibility. In my view, the refusal of the trial judge to permit the defendants to adduce evidence to challenge the plaintiff’s physical abilities at the date of the trial was unfair, and given the importance of this evidence to the ultimate award of damages for future diminished earning capacity and future cost of care, I see no alternative but to order a new trial on damages. I would thus allow the appeal and order a new trial.

Digital Vacation Photos and Metadata Production Ordered in ICBC Claim

Written by admin on July 5, 2011. Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized. 2 Comments on Digital Vacation Photos and Metadata Production Ordered in ICBC Claim

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, ordering production of a Plaintiff’s vacation photos in an ICBC injury lawsuit.
In today’s claim (Abougoush v. Sauve) the Plaintiff was injured in a 2007 motor vehicle collision. She alleged that her injuries disabled her for a period following this collision. During this period she travelled to Las Vegas, Palm Springs and the Caribbean. Photos were taken during these trips.
ICBC asked for the photos to be produced. The Plaintiff opposed arguing that any probative value in the photos was outweighed by Privacy concerns. Mr. Justice Rogers reviewed the photos and ultimately ordered them disclosed. The Court noted some difficulty reconciling the activities depicted in the photos with the “Plaintiff’s perception of what is a physical activity” based on her affidavit evidence. In ordering production of the digital photos and metadata Mr. Justice Rogers provided the following reasons:

[7] The photographs in question depict the plaintiff in various indoor and outdoor tropical settings. The plaintiff is depicted engaging in various activities including swimming, walking on a beach, going on a catamaran power boat, and visiting the Grand Canyon. The photographs clearly establish that the plaintiff did not spend the majority of her time curled up in her parent’s motorhome or resting poolside in a chaise lounge.

[8] I have referred to the pleadings, of course, in order to determine what matters are in question, but I have also referred to the plaintiff’s Affidavit #1, particularly the extracts set out above. The pleadings establish that the nature and extent of the plaintiff’s physical injuries, their effect on her enjoyment of life and their effect on her ability to participate in physical activity are matters in question. The photographs, when they are compared to the plaintiff’s affidavit evidence, are clearly relevant to the plaintiff’s perception of what is a physical activity. They are also relevant to the plaintiff’s tolerance for physical activity over a several week period.

[9] The photographs do not show the plaintiff in embarrassing or socially unacceptable situations. There is nothing about the photographs that would prevent their owner from, for example, posting them on a social networking site such as Facebook. I do not consider that the plaintiff’s demeanour or comportment in any of the photographs in the binder is such that they must be withheld from the defendants in order to preserve her privacy.

[10] In my opinion, the plaintiff’s pleadings and her affidavit evidence make the entire photographic record of her trips to Las Vegas and Palm Springs, and to the Caribbean, relevant to matters in question in this suit. All of the photographs in the binder provided to me must, therefore, be produced to the defendants.

[11] From what I can see of the camera that the plaintiff used to take many of these photographs (the camera can be seen in the reflection off the plaintiff’s sunglasses in some of her self-portraits), I believe it was a digital device. Digital cameras typically record the time and date when the photograph was taken. Some cameras capture the camera’s GPS co-ordinates as well. These data are known as metadata. These data are relevant to a matter in issue in this lawsuit because they may provide information from which the camera user’s tolerance for physical activity from day to day or over several days may be inferred. More particularly, the metadata may be relevant to the plaintiff’s ability to, for example, be active throughout a given day and then go walking on the beach in the evening, or it may be relevant to the plaintiff’s ability to spend an evening at a nightclub until some given hour, and then tolerate swimming the next morning. For that reason, the metadata associated with these photographs must also be produced to the defendants. That discovery may be accomplished by providing the defendants with digital copies of the photographs with the metadata preserved intact in those copies.

Counselling Record Production Request Denied as Irrelevant and Privileged

Written by admin on June 30, 2011. Posted in BCSC Civil Rule 7. 49 Comments on Counselling Record Production Request Denied as Irrelevant and Privileged

Concise reasons for judgement were recently released discussing the scope of document production limits under the New Rules of Court. In today’s case (RCL v. SCF) the Plaintiff was seeking damages following a motor vehicle collision. He had a history of emotional difficulties stemming in part from childhood abuse. He received counselling regarding this from the Elizabeth Fry Society. The Defendant requested a Court Order for production of these records.
Master Young refused the application as going beyond the narrower document production test under the New Rules of Court and further held that even if the documents were relevant they were privileged under the Wigmore criteria. The Court provided the following reasons:

[1] … The application is being brought under our new Rule 7-1(1). The relevancy test in the Supreme Court Rules has now narrowed to one of direct relevance, to use the words of the section, “to prove or disprove a material fact”, and it is no longer a chain of inquiry test related to any matter in question. I am not satisfied that these records will assist in proving any material fact.

[2] The defendant already knows that the plaintiff was abused as a child; that this event caused him emotional pain; that he attempted suicide; that he sought help from the Elizabeth Fry Society; that he missed work prior to the motor vehicle accident; and that he suffers from borderline personality disorder and depression. I also note a record that his brother passed away shortly before this accident. The defendant has obtained volumes of clinical records. I do not see how the detail of the counselling at Elizabeth Fry or the details of the abuse are going to add anything to the information they already have. It is clearly a request based on a chain of inquiry that there might be something relevant in those records.

[3] Everyone agrees that the Wigmore criteria that is set out in the Slavutych v. Baker decision is the relevant test to determine if the records are privileged, and I am not going to repeat those four criteria, but criteria 1 to 3 were conceded to exist, and there was some debate in submissions about whether criteria 4 has been met, and that says that (as read in):

The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

[4] I agree with Mr. Williams that the case of M. v. Martinson is directly on point. Paragraph 4 of the Wigmore criteria has been interpreted in the broad sense as one of a public policy issue. Would the public interest and the proper administration of justice outweigh in importance any public interest that may be protected by upholding the claim for privilege? As Master Joyce (as he then was) said at para. 18 (as read in):

I find there is great public interest in encouraging victims of abuse to seek counselling and to be assured of the confidentiality of that communication. The public interest is served if that confidentiality is fostered to the greatest possible degree.

[5] What of the interests of justice? Is the central issue in this case before me today in this lawsuit the same as might be contained in those records? I think not. There have already been several other sources outlining this plaintiff’s prior psychological problems. These records are at best peripherally related to the material issue. I am not convinced that in the interests of justice, I should breach that confidential relationship at all, not even to review those records myself and certainly not under this new narrow test for document production in our Rules of Court.

[6] So on that basis, I am denying the application.

Getting to Peruvian Guano

Written by admin on June 9, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 153 Comments on Getting to Peruvian Guano

Yesterday morning I was teaching as a guest instructor at PLTC (the BC Bar Exam Course) overseeing a Courtroom skills exercise. During the mock court application I asked the soon to be lawyers under what circumstances the Pervuian Guano test applied for document production. Little did I know my question was being answered just across town by Master Bouck who released reasons for judgement addressing this topic at length.
As previously discussed, the New BC Supreme Court Rules replaced the Peruvian Guano test for document production with the narrower test of documents that “prove or disprove a material fact”. However, the rules allow for the Peruvian Guano test to kick in through the second tier of document production set out in Rules 7-1(11),(12) and (13). Master Bouck addressed exactly what’s necessary to get to the Peruvian Guano stage.
In yesterday’s case (Przybysz v. Crowe) the Plaintiff was injured in a motor vehicle collision. ICBC’s lawyer brought an application for the production of various records. The application was largely unsuccessful however before dismissing it the Court provided the following useful feedback about the requirements necessary to get to the Peruvian Guano stage of document disclosure:

[27] …this application is, in fact, brought pursuant to Rules 7-1(11), (12) and (13). Those Rules contemplate a broader scope of document disclosure than what is required under Rule 7-1(1)(a) Indeed, the two tier process of disclosure (if that label is apt), reflects the SSCR’s objective of proportionality. In order to meet that objective, the party at the first instance must put some thought into what documents falls within the definition of Rule 7-1(1)(a)(i) but is not obliged to make an exhaustive list of documents which in turn assists in the “train of inquiry” promoted in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at pp. 62-63(Q.A.).

[28] Only after a demand is made under Rule 7-1(11) for documents that relate to any or all matters in question in the action and the demand for productions is resisted can a court order production under Rule 7-1(14). It should be noted that in this case, the demand (and indeed order sought) is for production of additional documents, not simply a listing of such documents: seeRules 7-1(1) (d), (e) and (f).

[29] The court retains the discretion under Rule 7-1(14) to order that the party not produce the requested list or documents. Again, the court must look to the objectives of the SCCR in exercising this discretion.

[30] As to the form and substance of the request, it has been suggested by Master Baker that:

… there is a higher duty on a party requesting documents under … Rule 7-1(11) … they must satisfy either the party being demanded or the court … with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed” …

Anderson v. Kauhane and Roome (unreported, February 22, 2011, Vancouver Registry No. M103201) at para. 4

[31] A similar higher duty or burden rests with the party rejecting the request under Rule 7-1(12): see Conduct of Civil Litigation in B.C (2^nd edition), Fraser, Horn & Griffin @ p. 17-7. In my view, the burden is not met by stating that documents will not be produced simply because of the introduction of the SCCR.

[32] The objective of proportionality might also influence the timing of requests for broader document disclosure. The court has observed in More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, that under the SCCR:

… the duty to answer questions on discovery [is] apparently broader than the duty to disclose documents.

para. 7.

And further:

… if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required. The examination for discovery is the most likely source of such evidence.

para. 8.

[33] Nevertheless, neither the court nor the SCCR require that an examination for discovery precede an application under Rules 7-1(13) and (14). Depending on the case, proportionality and the existing evidence might support pre-examination document disclosure so that the examination can be conducted in an efficient and effective manner….

[40] It is suggested by the learned authors of Conduct of Civil Litigation in B.C. that authorities decided under former Rule 26(11) may be applicable to an application for broader disclosure of documents under Rules 7-1(11) – (14): p. 17-7. That suggestion is not inconsistent with Master Baker’s ruling. Again, the questions for the court will be what evidence is presented and does an order for production achieve the objective of proportionality?

Master Bouck also released a second set of reasons (Baldertson v. Aspin) with this further useful feedback of the intent of Rule 7-1(11):

[29] The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. TheRule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application. Whether this debate or discussion was had verbally in this case is not clear on the record.

[30] Nor does it appear that any written request was made to the plaintiff to list documents relating to the 2001 motor vehicle accident. Again, the Rules appear to have been ignored as a matter of expediency.

[31] Nevertheless, the plaintiff did not seek an adjournment of the application so that the process under Rules 7-1(10), (11) and (12) could be followed. The parties proceeded on the basis that the plaintiff declined the defence’s requests for additional document disclosure and/or the listing of those additional documents. In this particular case, the objectives of the SCCR are met by dealing with the merits of the application rather than rejecting the application on procedural grounds.

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

Written by admin on May 11, 2011. Posted in BCSC Civil Rule 17, Uncategorized. 110 Comments on 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.

More on the Scope of the Implied Undertaking of Confidentiality

Written by admin on May 2, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 65 Comments on More on the Scope of the Implied Undertaking of Confidentiality

An important and developing area of law in BC relates to the implied undertaking of confidentiality. When a lawsuit for damages is brought in the BC Supreme Court, the parties are required to make disclosure of certain relevant documents even if such disclosure is harmful to their interests.
In order to strike a balance between fulsome disclosure and privacy rights, the Courts have developed a rule known as the “implied undertaking of confidentiality” which prohibits a party who receives this forced disclosure from making use of the documents/information outside of the lawsuit without consent of the other parties or a court order. Reasons for judgement were recently brought to my attention (thanks to Dan Michaluk) clarifying that the implied undertaking even covers documents obtained from the Crown by a party charged with a criminal offence.
While the recent case (R. v. Basi) is a criminal case it is relevant for personal injury lawsuits. Often times a Defendant in a civil lawsuit faces criminal consequences prior to a civil action. In the course of the initial prosecution relevant documents are produced. Many of these documents are equally relevant in a subsequent civil lawsuit. In clarifying that the implied undertaking extends to these documents precluding their automatic use in subsequent civil proceedings Associate Chief Justice MacKenzie provided the following reasons:

[42] If Bennett J.’s statement left any doubt about the existence of an implied undertaking rule in British Columbia, I would affirm that an accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding.

[43] The basis for this implied undertaking is in the sound policy reasons expressed in Wagg and Taylor and also discussed in the Martin report, all referred to above. As recognized in the civil context in Goodman v. Rossi (1995), 24 O.R. (3d) 359 (C.A.) at 367-368 referring to Lindsey v. Le Suer (1913), 29 O.L.R. 648 (C.A.), the undertaking flows as a necessary implication from the limited purpose for which the recipient has been given access to the documents.

[44] I am aware that the Court in Wagg was reluctant to lay down a rule in the criminal context that could have significant consequences in other types of litigation. However, I am satisfied this concern does not present a barrier in British Columbia in light of the jurisprudence of this Court and the recognition by our Court of Appeal that the practice in this province is not make use ofStinchcombe material for collateral purposes.

[45] As a result, I am satisfied that because the proceeding is over for which the disclosure was provided, the respondents are not entitled to make any further use of the material that remains subject to the undertaking.

I am having a difficult time reconciling this decision with the recent case of Cochrane v. Heir which indicates that Rule 7-1(1)(a)(i) would automatically force a litigant to list relevant documents in a civil suit notwithstanding the implied undertaking of confidentiality. I suspect the Court of Appeal will eventually be asked to weigh in on this issue. In the meantime parties to a lawsuit can simply take a common sense approach in agreeing to consent orders to set aside the implied undertaking of confidentiality if it applies to otherwise relevant and clearly producible documents.

Document Disclosure Obligations and the Implied Undertaking of Confidentiality

Written by admin on April 16, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 69 Comments on Document Disclosure Obligations and the Implied Undertaking of Confidentiality

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that personal injury plaintiffs need to list and produce examination for discovery transcripts from previous claims dealing with similar injuries under Rule 7-1(1) of the Rules of Court. This decision appears to me to be at odds with previous cases addressing this issue (you can click here to access my archived posts on this topic). This issue may need to be dealt with by the Court of Appeal in order to have some certainty in this area of law.
In today’s case (Cochrane v. Heir) the Plaintiff was injured in a motor vehicle collision. She sued for damages. ICBC appointed the same lawyer to defend the claim that defended a previous lawsuit of the Plaintiffs. In the previous lawsuit ICBC’s lawyer conducted an examination for discovery of the Plaintiff. He applied for an order to set aside the ‘implied undertaking of confidentiality’ that applied to the former transcript.
Mr. Justice Harris granted the application but went further and ordered that Plaintiffs are obligated to list and produce previous discovery transcripts. Mr. Justice Harris provided the following reasons:

[5] In my view, there should be no need to relieve counsel for the defendants of his obligation under the implied undertaking. The documents are either in the possession of the plaintiff or they were in her control or possession. The plaintiff has an independent obligation to list and produce them further to her obligations under Rule 7-1(1)(a)(i) of the Civil Rules. The plaintiff cannot shield herself from her obligation to list and produce relevant documents by invoking the implied undertaking against opposing counsel who came into possession of those documents in the previous litigation: see Wilson v. McCoy, 2006 BCSC 1011.

[6] Given that the documents in issue have not yet been listed and produced by the plaintiff, I am prepared to relieve counsel for the defendants of the implied undertaking in respect of the transcripts of the examinations for discovery conducted in the previous action and the documents in issue. The implied undertaking exists to protect privacy rights and to facilitate the free flow of information in litigation by providing an assurance that information compelled to be provided in discovery is not used for collateral purposes.

[7] In Juman v. Doucette, [2008] 1 S.C.R. 1011, the following is said that governs the exercise of my discretion to relieve a party or counsel of the obligations imposed by the implied undertaking:

[35] The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted. See Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260 (H.C.J.), at pp. 265-66; Crest Homes, at p. 1083; Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323 (C.A.); Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC 998; Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252 (B.C.S.C.).

[8] The application of counsel for the defendants is granted.

Details Please: Privileged Documents and Disclosure Requirements of the New Rules of Court

Written by admin on April 13, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 108 Comments on Details Please: Privileged Documents and Disclosure Requirements of the New Rules of Court

In 2009 the BC Court of Appeal released reasons for judgement addressing the details necessary when listing privileged documents. The first reasons I’m aware of addressing this issue under the New Rules of Court were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that the law remains unchanged.
In today’s case (Anderson Creek Site Developing Ltd. v. Brovender) the Plaintiff sued various defendants claiming damages for alleged unpaid accounts. The Defendants listed many privileged documents in the course of the lawsuit. The Plaintiff brought an application seeking that these be described with greater detail. Mr. Justice Verhoeven granted the application and in doing so provided the following useful summary describing the necessary details when listing a privileged document under Rule 7-1(7):

[110] Rule 7-1(7) requires that:

The nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable other parties to assess the validity of the claim of privilege.

[111] The description in the list of documents is not sufficient to respond to that requirement.

[112] The defendants argue that the description that they have given on their list of documents is not materially different than the plaintiff’s own description. That may be. That application is not before me at the moment.

[113] It is hard to know in a given case how much description is required to answer the requirement in Rule 7-1(7) without revealing privileged information. It depends on the nature of the case and the nature of the document. In this case, I would expect most documents to be transactional documents. There may be other documents as well.

[114] As a minimum, in order to have any assessment of the validity of a claim of privilege, in the circumstances of this case, it seems to me that what is required to be described are four things: first, something about the nature of the communication, that is whether it is a letter or an e-mail or memorandum or something else; second, the date upon which it was created or sent; third and fourth, the author and the recipient. With that information, it may be possible for the plaintiff to assess the claim of privilege. There may be further disclosure that is necessary at that stage; I cannot tell.

[115] So that application will be allowed to that extent. The defendants will produce a more detailed list of privileged documents disclosing that information. The plaintiff will be at liberty to reapply for a better list, in order to challenge the claim of confidentiality.