Tag: Rule 7-1(15)

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.

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.

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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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