Tag: Rule 7-1(1)

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 (2nd 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.

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


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.

More on Document Disclosure and the New Rules of Court: MSP and Pharmanet Printouts


As previously discussed, the New Rules of Court have limited the scope of pre-trial document production and further have introduced the concept of ‘proportionality‘ in deciding what types of documents need to be disclosed in litigation.  The law continues to develop with respect to the application of these changes and recently the BC Supreme Court released reasons for judgement addressing two classes of documents which are often requested in BC personal injury lawsuits; MSP and Pharmanet Printouts.
In the recent case (Anderson v. Kauhane and Roome) the Plaintiff was injured in a 2008 BC motor vehicle collision.  She sued for damages.  In the course of the lawsuit the Defendant requested her MSP and Pharmanet printouts (government documents which keep track of doctors visits and prescption drug purchases).  These documents were routinely produced in injury lawsuits under the former Supreme Court Rules.
The Plaintiff opposed arguing that the narrower scope of the New Civil Rules no longer made such documents automatically producible.  Master Baker agreed and dismissed the Defence application for production.  In doing so the Court considered disclosure of these documents both under that narrower ‘material fact’ test in Rule 7-1(1)(a) and the broader Peruvian Guano type disclosure under rule 7-1(11).  In dismissing the application Master Baker provided the following useful reasons:
The question is: do the documents in dispute, ie, MSP and Pharmanet, come withing the terms of either Rule 7-1(1)(a), ie, documents that can be used by a party of record to prove or disprove a material fact or that will be referred to at trial or, if not, do they come under category 7-1(11), generally, in the vernacular, referred to as the Guano documents…There is no question that there is a higher duty on a party requesting documents under the second category…that in addition to requesting, they must explain and satisfy either the party being demanded or the court, if an order is sought, with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”, and again, there is no doubt that the new Rules have limited the obligation for production in the first instance to the first category that I have described and has reduced or lessened the obligation for production in general…
The question today is, would these documents prove a material fact if available?  I think not….I am not satisfied that at this juncture they can or will prove a material fact…
I acknowledge that the defence has pleaded – and I will say this – in what I think are now becoming boilerplate pleadings, has pleaded pre-existing conditions…I am not satisfied that, by simple pleading, that somehow opens up the matter to the higher standard represented by 7-1(11).  The obligation is still on the defendant to make that case, as far as I am concerned, and that moves me to the second aspect of this, has a case been made under 7-1(11)?
Has there been, in other words, reasonable specificity indicating why the additional documents or classes of documents should be disclosed?  I think not….It seems, in the circumstances, disproportionate to me to give an open-ended order that all Pharmanet records, for example, some seven years, or records with Medical Services Plan going back to January 1, 2004, are proportionate to the claim as it is expressed and understood at this point.  So the application is dismissed.
As far as I am aware this recent case is unpublished but, as always, I am happy to provide a copy of the reasons to anyone who contacts me to request one.

More on the New Rules of Court and Document Disclosure: The Proportionality Factor


As recently discussed, a developing area of law relates to the extent of parties document production obligations under the new Rules of Court.   The starting propisition is that parties need to disclose a narrower class of documents then was previously required.  A Court can, on application, order further disclosure more in line with the “Peruvian Guano” test that was in force under the former rules.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, making such an order.
In today’s case (Whitcombe v. Avec Insurance Managers Inc.) the Plaintiff was employed as an Insurance Underwriter with the Defendant.  The Plaintiff was let go and sued for wrongful dismissal.  The Defendant counterclaimed alleging they lawfully terminated the Plaintiff’s employment and further making allegations of misfeasance by the Plaintiff.
In the course of the lawsuit the parties were dis-satisfied with each others lists of documents.  They each applied for further disclosure.  Master Caldwell granted the orders sought finding that the concept of ‘proportionality‘ calls for greater disclosure in cases of “considerable importance“.  In granting the applications Master Caldwell provided the following reasons:

[10]         In short, both parties make serious allegations of actual misfeasance and in particular allegations which may well have a significant impact on the other’s reputation in the insurance industry and on the parties’ respective abilities to continue in business or to be employed in a professional capacity.  This is therefore a matter of considerable importance and significance to the parties regardless of the quantum of immediate monetary damage.

[11]         I find this to be important to my consideration of proportionality as directed in Rule 1-3(2) when interpreting and applying Rule 7-1.  In my view, where, as here, the issues go beyond negligence and involve opposing allegations of misfeasance, proportionality must be interpreted to allow the parties a wider, more Peruvian Guano type disclosure in order to defend and protect their respective professional reputations and abilities to carry on in the business community.

[12]         Here one or both sides have levelled allegations involving malice, bad faith, arbitrariness, lack of integrity/fidelity/loyalty and incompetence at the other.

[13]         In addressing Rule 7-1 in the case of Biehl v. Strang, 2010 BCSC 1391, Mr. Justice Punnett said at paragraph 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.

[14]         I am satisfied that in these circumstances the disclosure sought by both parties in their applications is appropriate in that it seeks evidence or documents that can or may well assist in proving or disproving a material fact.

Interestingly the Court implied that Peruvian Guano like disclosure likely will not be made in motor vehicle collision claims noting that “This is not a simple motor vehicle type case, arising in common context and involving straight forward negligence issues and quantification of physical injury compensation.”

Scope of Discovery Under the New Rules of Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of both discovery of documents and examinations for discovery under the new Rules of Court.
In today’s case (More Marine Ltd. v. Shearwater Marine Ltd) the Plaintiff companies sued the Defendant alleging the breach of marine insurance policies.  The Plaintiff was self represented.  He examined an insurance adjuster that worked for the Defendant.  At discovery the Defendant raised numerous objections including an objection to questions addressing “general practices in the insurance industry“.  A motion was brought seeking guidance addressing whether these questions were permissible.
Mr. Justice Smith held that this line of questioning was appropriate and ordered that a further discovery take place.  In doing so the Court provided perhaps the most extensive judicial feedback to date about the changes with respect to discovery obligations under the New Rules of Court.  Mr. Justice Smith gave the following useful reasons:

[3]             The scope of proper questioning on an examination for discovery is set out in Rule 7-2 (18) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]:

Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

(b)        is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

[4]             The new Rules came into effect on July 1, 2010, but the language in rule 7-2 (18) is identical to the former rule 27 (22).  As Griffin J. said in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556 [Kendall] at para. 7 “the scope of examination for discovery has remained unchanged and is very broad.”  In Cominco Ltd. v. Westinghouse Can Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco], an early and leading case under the former rule, the Court of Appeal said at 151 that “rigid limitations rigidly applied can destroy the right to a proper examination for discovery.”  The court in Cominco also adopted the following statement from Hopper v. Dunsmuir No. 2 (1903), 10 B.C.R. 23 (C.A.) at 29:

It is also obvious that useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose, and it is needless to labour the proposition that in many cases much preliminary skirmishing is necessary to make possible a successful assault upon the citadel, especially where the adversary is the chief repository of the information required.

[5]             In Day v. Hume, 2009 BCSC 587 this court said at para. 20:

The principles emerging from the authorities are clear. An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[6]               While Rule 7-2 (18) is the same as its predecessor, the new Rules create a distinction that did not previously exist between oral examination for discovery and discovery of documents.  The former rule 26 (1) required a party to list all documents “relating to every matter in question in the action.”  Although disclosure in those terms may still be ordered by the court under Rule 7-1 (14), the initial disclosure obligation is set out more narrowly in Rule 7-1(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.

[7]             Under the former rules, the duty to disclose documents and the duty to answer questions on oral examination were therefore controlled by the same test for relevance.  Under the newRules, different tests apply, with the duty to answer questions on discovery being apparently broader than the duty to disclose documents.

[8]             Although that may appear to be an anomaly, there are at least two good reasons for the difference.  One reason is that 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.

[9]             The second reason relates to the introduction of proportionality as a governing concept in the new Rules.  Rule 1-3 (2) states:

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[10]         The  former rule governing discovery of documents was interpreted according to the long-established test in Compagnie Financière du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63 (C.A.):

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party … either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party … either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…

[11]         The new Rules recognize that application of a 19th century test to the vast quantity of paper and electronic documents produced and stored by 21st century technology had made document discovery an unduly onerous and costly task in many cases.  Some reasonable limitations had become necessary and Rule 7-1 (1) is intended to provide them.

[12]         The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.

[13]          As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:

A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.

Production of Documents, Forced Authorizations and the New Rules of Court


As previously discussed, the BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.
It has been a matter of much judicial debate whether the BC Supreme Court could order a Plaintiff to sign an authorization to consent to the release of Third Party Records with Mr. Justice Hinkson recently finding that the Court did not have this power under the Former Rules.
The first case I’m aware of dealing with issue under the New Rules of Court was released today by the BCSC , New Westminster Registry.   Keeping the uncertainty on-going, Mr. Justice Williams found that the Rules do authorize a Court to force a party to sign authorizations for the release of Third Party Records
In today’s case (Nikolic v. Olsen) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a motion to compel the Plaintiff to sign various authorizations.  The Plaintiff opposed arguing that the Court lacked the authority to make such an order.  Mr. Justice Williams disagreed.  The Court provided a lengthy review of the relevant authorities and ultimately provided the following reasons addressing this issue:
[11] There are conflicting judicial authorities respecting the issue raised in this application. The line of jurisprudence which holds that the court cannot make an order requiring a litigant to authorize third party production is, in my view, troubling. For the reasons that follow, I conclude that this Court can make an order requiring a litigant to authorize a third party, whether within or outside this province, to produce records relating to him or her to another litigant. The jurisdiction to do so is based on the Rules of Court

[93]         In British Columbia, relevant non-privileged documents are compellable in a civil action. Full and complete disclosure between or among litigants prior to trial is essential to the truth-seeking function of the litigation process and proper administration of justice.

[94]         This Court has the authority under the former Rules to compel production and to specify the mechanics of its production orders. Rule 26(1.1) permits the court to order a litigant to list documents in his or her power, which may include those held by foreign non-parties. Rule 26(10) empowers the court to order a litigant to produce a document for inspection and copying in the manner it thinks just. Furthermore, R. 1(12) grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively, a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

[95]         In my view, the following excerpt from para. 110 of Hood J.’s reasons in Lewis is apt:

There is also no doubt that the Court has substantive jurisdiction or power pertaining to the discovery and inspection of documents under Rule 26, particularly the compelling or ordering of production of documents. … In my opinion, the manner in which production is achieved is for the Court. The Court’s substantive jurisdiction or power to compel the production of documents includes the jurisdiction or power to create the mechanisms or the means by which production is made.

[96]         As expressed in the jurisprudence, there are, no doubt, potentially unwieldy implications of a court order compelling authorization of third party production. Given these concerns, such orders should not be granted lightly. In this respect, L. Smith J. in McKay v. Passmore, 2005 BCSC 570, [2005] B.C.J. No. 1232 (QL), offers worthwhile guidance. That was a personal injury case arising from a motor vehicle collision. An application was brought for an order that the plaintiff execute an authorization allowing the defendants to obtain records held by the Manitoba Workers Compensation Board. Her Ladyship held, at para. 36, that while the court has jurisdiction to grant such an application, there was insufficient basis on the evidence to do so. She concluded, at para. 40, that the circumstances of the case before her did not warrant the order sought in light of the R. 26(11) criteria provided by the Court of Appeal in Dufault, which she outlined at para. 38:

1.         The applicant must satisfy the court that the application is not in the nature of a “fishing expedition.”

2.         He or she must show that a person who is not a party to the action has a document or documents in his or her possession that contains information which may relate to a matter in issue.

3.         If the applicant satisfies those criteria, the court should make the order unless there is a compelling reason not to make it (i.e. because a document is privileged or because grounds exist for refusing the application in the interests of persons not parties to the action who might be affected adversely by an order for production and the adverse affect would outweigh the probative value of the document.)

[97]         Obviously these criteria, among other relevant factors, ought to be considered by a court considering an application for an order compelling a litigant to authorize production of documents held by a third party whether located within or outside British Columbia.

[98]         For two examples as to how the McKay/Dufault criteria may apply, see Distinctive Photowork Co. v. Prudential Assurance Co. of England Property and Casualty (Canada) (1994), 98 B.C.L.R. (2d) 316, [1994] B.C.J. No. 3231 (QL) (S.C. Chambers); and Tetz v. Niering, [1996] B.C.J. No. 2019 (QL), 1996 CarswellBC 1887 (S.C. Chambers).

[99]         These cases, although they raise slightly different issues, do not detract from, but rather inform, the basic proposition that where a litigant is under an obligation to make disclosure of documents, then that obligation must be honoured. Where such documents are in the hands of third parties, the usual format will entail the litigant voluntarily agreeing to provide a document authorizing the record holder to release the material, and that will resolve the matter. However, in other cases, where consent is refused, litigants are entitled to seek relief and the court has jurisdiction to enforce the disclosure obligation, specifically by making an order whereby the party whose records are being sought will “consent” to their release. While the wording is unfortunate and has engendered a regrettable state of controversy, the underlying concept is, in my view, straightforward.

[100]     The Olsons have a legitimate interest in obtaining the requested records and I am satisfied that their application is not in the nature of a fishing expedition. I also find that the third parties named by the defendants in their application possess the requested records which relate to a matter or matters in this case. By way of obiter dicta, I note that the common law test for relevance under the former Rules is broader than what seems to be provided by the wording of the current Rules. There are, furthermore, no compelling reasons why the order sought should not be made.

[101]     Accordingly, I order the respondent/plaintiff, Mr. Nikolic, to provide signed authorizations allowing the applicants/defendants, Josiah Olson and Joel Olson, to obtain from the third parties named the records listed in clauses (c), (d), (e) and (f) of the proposed order reproduced at para. 3 of these reasons.

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.

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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.

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