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.”