Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust was discussed in Mac v Mak 2016 BCSC 1140:

[122]     If the presumption of resulting trust arises, it may be rebutted by evidence of the transferor’s intention at the time of transfer to grant beneficial ownership to the recipient of the gratuitous transfer.  However, if the court cannot conclude the transferor’s actual intent was to create joint tenancy on the evidence before it, this presumption will “tip the scales” in favour of the presumption of resulting trust: Schouten Estate at para. 2.  If the evidence is insufficient to establish actual intent, the trial judge may rely on the presumption of resulting trust: see Fuller v. Harper, 2010 BCCA 421 at para. 42:

[42]      Even though the presumption was engaged, the trial judge was obliged to examine the totality of the evidence, both direct and circumstantial, for the purpose of determining, if possible, Mr. Fuller’s actual intention at the time he executed the 2002 transfer. The trial judge could only rely on the presumption of resulting trust if the evidence was insufficient to establish Mr. Fuller’s actual intent at the time of the transfer: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795.

[123]     The types of evidence that may be reviewed by the court to determine the transfer’s intention were canvassed in Pecore.  Those include:

  • evidence subsequent to the transfer;
  • documentary evidence relating to the asset;
  • control and use of the property;
  • any other legal instruments; and
  • tax treatment.

See also Schouten Estate para. 5.

[124]     The most persuasive evidence is contemporaneous with the transfer.  Evidence of transactions or statements following the transfer may be taken into account if they explain the intention of the time of the transfer: Harshenin at paras. 45 to 46.  I refer to the following statements of the court in Harshenin:

[44]      The court must weigh all of the relevant evidence, both direct and circumstantial, in an attempt to ascertain on a balance of probabilities the transferor’s actual intention. The assessment may include any reasonable inferences that are sought to be drawn from the evidence, including the “inherent probability or improbability of competing explanations as to the transferor’s intent”: Fuller v. Harper, 2010 BCCA 421 at para. 49. In other words, the court may consider if the transferor had any rational purpose for the transfer, other than as a gift.

[45]      The traditional rule was that evidence adduced to show the evident intention of the transferor “ought to be contemporaneous or nearly so to the transaction”: Pecore at para. 56. However, this rigid rule has lost much of its force, and the Supreme Court of Canada concluded at para. 59 of Pecore:

[59] Similarly, I am of the view that the evidence of intention that arises subsequent to a transfer should not automatically be excluded if it does not comply with the Shephard v. Cartright rule. Such evidence, however, must be relevant to the intention of the transferor at the time of the transfer: Taylor v. Wallbridge (1879), 2 S.C.R. 616. The trial judge must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention.

[46]      The court therefore must approach any evidence of intention that arises subsequent to the transaction at issue with considerable caution and carefully assess the weight it ought to be accorded.

Consequently, evidence contemporaneous to the transfer relevant to the intention of the transferor, if assessed reliable, may be accepted to determine the transferor’s actual intention.

Abuse of Process in BC Estate Litigation

Special Costs Not to Include Pre Litigation Conduct

Many estate litigation claims and counterclaims contain far too much emotional distortion so as to become frivolous, vexatious, unnecessary and otherwise an abuse of process that upon application, may lead to those portions of the claim found to be such to be stricken or dismissed entirely.

In Wotherspoon v Steele 2016 BCSC 818, the plaintiffs believed that all matters between themselves and their defendant brother had been resolved at mediation.

The defendant subsequently  balked on carrying through with the settlement and filed a specious counterclaim that the court struck completely on the basis that it was without legal foundation and an abuse of process.

28      The test for striking a pleading under R. 9-5(1)(b), on the basis that it is unnecessary, scandalous, frivolous or vexatious, was recently summarized in Willow v. Chong, 2013 BCSC 1083 (B.C. S.C.), where Madam Justice Fisher said:

[20] Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff’s cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court’s time and public resources: Citizens for Foreign Aid Reform Inc. v Canadian Jewish Congress, [1999] BCJ No. 2160 (SC); Skender v Farley, 2007 BCCA 629 …

29      The abuse of process standard under R. 9-5(1)(d) allows the court to prevent a claim from proceeding where to do so would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (S.C.C.) at paras. 35-37.

Mutual Wills Create Constructive Trusts

Mutual Wills Create Constructive Trusts

Mutual wills as opposed to mirror wills, are not very common, but when they exist and  breached, that breach creates a trust that can be used to trace the assets into the hands of third parties.

Mutual wills are not a good idea for estate planning purposes and should be avoided except in unique circumstances.

In order for the breach of trust to occur, there must firstly be a contract between the parties not to change their wills and to provide for the other as per the terms of the mutual wills.

The mutual wills  are usually and should be accompanied by a written contract where  the parties essentially contract with the other not to ever change the terms of the mutual wills that they are signing.

The overwhelming number of parties who do will providing for each other do NOT do mutual wills but instead do mirror wills.

What may occur after the death of the first party to the contract,  the survivor as time goes on may  change his or her will to benefit other parties that the estate of the first to die.

If the mutual will is properly executed and the breach of trust is proven to have occurred, the  courts may award a constructive trust over the assets that should have formed part of the estate, and order that they are held in trust for the beneficiaries of the estate of first to diet

The authorities have consistently supported the proposition that a person cannot avoid a mutual will agreement by making dispositions of a testamentary nature.

Most authorities go further and support the proposition that a person cannot make any disposition intended to defeat the agreement, whether testamentary or not.

Barns v Barns [2003] HCA 9, at paras. 163-4;  Flocas v Carlson [2015] VSC 221, at para. 192; Healey v Brown, [2002] EWHC 1405 (Ch), at paras. 13-14; Russo & Ors v Russo & Anor [2009] VSC 491, at para. 32; Youdan, T. G. “The Mutual Wills Doctrine” (1979) 29 U.T.L.J. 390, at 410-414; Oosterhoff, supra, at 140-142, 152-3; Croucher, supra, at 405

In the Australian case of Bigg v Queensland Trustees Ltd, [1990] 2 Qd R 11 as well as a number of Canadian cases that were decided before it,  state that where a person has acted to his or her detriment in reliance on an agreement to make irrevocable mutual wills, the court will enforce the agreement against the first to die in the same way as the traditional doctrine enforces the agreement against the survivor.

In Bigg v Queensland, the plaintiff, Mr. Bigg, and his wife, Mrs. Bigg, executed irrevocable mutual wills, which left their estates to each other, and on the death of the survivor, all of the assets divided equally between their four children (each had two from a previous marriage).

Mrs. Bigg died first, after having secretly made several new wills, which essentially left Mr. Bigg with just a life estate. Not knowing that Mrs. Bigg had revoked the mutual will, and still believing that he would be the sole beneficiary of her estate, Mr. Bigg transferred some of his investments into Mrs. Bigg’s name (for tax reasons).

After Mrs. Bigg’s death, Mr. Bigg sued the estate, claiming that the executor held all of the estate assets in trust for Mr. Bigg, and damages for breach of contract in the alternative.

In his judgment, McPherson J. (Supreme Court of Brisbane) questioned the reasoning in Stone v. Hoskins, and ultimately held that equity could not allow Mrs. Bigg to secretly change her will, while permitting Mr. Bigg to continue acting to his prejudice on the assumption that their agreement was still in place. On that basis, the court declared that the defendant executor held Mrs. Bigg’s net estate in trust for Mr. Bigg.

Interpretation of Court Orders

Interpretation of Court Orders

Interpretation of Court Orders occasionally arises in estate litigation where poorly drafted previous orders may require subsequent interpretation. Basically it is the same basic law as interpreting a contract.

In Athwal v. Black Top Cabs Ltd., 2012 BCCA 107 (B.C. C.A.) [ the Court of Appeal set out the following principles of contractual interpretation

[42] The contractual intent of parties to a written contract is objectively determined by construing the plain and ordinary meaning of the words of the contract in the context of the contract as a whole and the surrounding circumstances (or factual matrix) that existed at the time the contract was made, unless to do so would result in an absurdity. Where the language of a contract is not ambiguous (that is, when viewed objectively it raises only one reasonable interpretation), the words of the written contract are presumed to reflect the parties’ intention. An interpretation that renders one or more of the contract’s provisions ineffective will be rejected.

[43] Extrinsic evidence to explain the meaning of an unambiguous contractual provision is not admissible. Evidence of a party’s subjective intention in executing the contract, or of their understanding of the meaning of the words used in the contract, is not admissible to vary, modify, add to or contradict the express words of the written contract. This is particularly so where a contract contains an “entire agreement” clause.

When interpreting a consent order, a court should try and make sense of and give effect to each of the provisions of the agreement using general contractual interpretation principles: Pacific Destination Properties Inc. v. Granville West Capital Corp., 2009 BCSC 982, at para. 59

A court must assume that the parties intended to stipulate for what was fair and reasonable, having regard to their mutual interests and to the main objects of the contract: in Arrow Transfer Co. Ltd. v. Fleetwood Logging Co. Ltd., 1961 Carswell  BC 253, 30 D.L.R. (2d) 631, at p. 6

In Mercantile Bank of Canada v. Sigurdson, [1978] 3 W.W.R. 523  the court quoted the following from Corbin on Contracts (1964), vol. 3, p. 210, para. 552, in its explanation of the rule against absurdity as it applies to the construction of contracts:

It is quite possible for two parties to make a valid contract that seems unfair or unreasonable or even absurd to other people. If, however, the words of agreement can be interpreted so that the contract will be fair and reasonable, the court will prefer that interpretation (emphasis added).

A party cannot hide behind a restrictive and literal interpretation to circumvent a order and make a mockery out of the administration of justice: S.B.G. v. A.D.I., 2013 BCSC 1540, at para. 11

 

 

Independent Legal Advice and Undue Influence

Independent Legal Advice and Undue Influence

Under normal circumstances independent legal advice, if properly given should be sufficient to rebut any presumption of undue influence, but that was not the case in Cowper-Smith v Morgan 2016 BCCA 200 where the Court of Appeal upheld the trial judge in finding inter alia , that the independent legal advice provided was inadequate to rebut the presumption of undue influence.

The case should stand as a wake-up call to any practitioners dispensing independent legal advice that it must be thorough and relevant to the assessment of the question or issue before them, and to take the time and charge accordingly.

Failing to do so may expose professional liability by disappointed beneficiaries.

The Appeal Court stated as follows re the law of Independent Legal Advice:

51      The following considerations have also been identified as relevant to the assessment of the legal advice provided to the donor (Fowler Estate v. Barnes (1996), 142 Nfld. & P.E.I.R. 223 (Nfld. T.D.), Green J., adopted in Coish v. Walsh, 2001 NFCA 41 (Nfld. C.A.) at para. 23):

  1. Whether the party benefiting from the transaction is also present at the time the advice is given and/or at the time the documents are executed;
  2. Whether, though technically acting for the grantor, the lawyer was engaged by and took instructions from the person alleged to be exercising the influence;
  3. In a situation where the proposed transaction involves the transfer of all or substantially all of a person’s assets, whether the lawyer was aware of that fact and discussed the financial implications with the grantor;
  4. Whether the lawyer enquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place; and
  5. Whether the solicitor discussed other options whereby she could achieve her objective with less risk to her.

[The “Coish” factors; citations omitted.]

52      The respondents also rely on jurisprudence that identifies two branches for assessing the adequacy of the independent legal advice given where an allegation of undue influence is raised: (i) advice as to understanding and voluntariness (attendance on execution); and (ii) advice as to the merits of a transaction (the wisdom of entering into the transaction). The first branch of the test requires that the independent advisor is satisfied the donor understands the transaction and enters into it freely and voluntarily. The second branch of the test requires something more than the independent advisor being satisfied that the donor understands the effect of the transaction and wishes to make the gift; it also requires that the independent advisor is satisfied that “the gift is one that is right and proper in all the circumstances of the case, and if he cannot so satisfy himself he should advise his client not to proceed.” See Cope v. Hill, 2005 ABQB 625 (Alta. Q.B.), aff’d 2007 ABCA 32 (Alta. C.A.) at paras. 210-212, citing Gold v. Rosenberg, [1997] 3 S.C.R. 767 (S.C.C.), Corbeil v. Bebris (1993), 141 A.R. 215 (Alta. C.A.), and Halsbury’s Laws of England, vol 18, 4th ed. at 157, para. 343.

53      Assessing the adequacy of the legal advice given is a fact-specific inquiry. It does not reduce to any precise test. In some circumstances, it may require advice on only the nature and consequences of the transaction. However, where concerns or allegations of undue influence arise, generally there will be a need to give “informed advice” on the merits of the transaction. See Cope at paras. 213-215, citing Brosseau v. Brosseau, 1989 ABCA 241 (Alta. C.A.) at paras. 22-23, Coomber v. Coomber, [1911] 1 Ch. [723] and Wright v. Carter, [1903] 1 Ch. 27 (Eng. C.A.) at 57-58.

Did the judge err in finding the presumption of undue influence and the presumption of resulting trust had not been rebutted?

54      It is common ground that findings with respect to undue influence and the intention of a party to gratuitously transfer property to another are subject to a deferential standard of review. See Boda Estate v. Boda, 2014 BCCA 354 (B.C. C.A.) at para. 72. An appellate court may not interfere with the findings and inferences of fact by a trial judge absent palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.) at para. 10). Palpable error is one that is readily or plainly seen (Housen at para. 5); overriding error is one that must have or may have altered the result (see Van Mol (Guardian ad litem of) v. Ashmore, 1999 BCCA 6 (B.C. C.A.) at paras. 11-12).

55      The application of a legal standard to findings or inferences of fact raises a question of mixed fact and law. Where an alleged error of mixed fact and law can be attributed to the application of the wrong legal standard, element of the legal test, or error in principle, the error may be characterized as an error of law and is subject to the standard of correctness. However, if the legal principle is not readily extricable from the findings or inferences of fact, then the judge’s conclusions should not be overturned absent palpable and overriding error (Housen at paras. 26-36).

56      All three standards of review are engaged in this appeal. The appellant contends the judge erred in law by adopting a flawed approach in her assessment of the evidence of Ms. Iverson and Mr. Easdon, in order to determine whether the presumption of undue influence was rebutted. The appellant further alleges that in applying the legal test for rebutting the presumption of undue influence, the judge made a palpable and overriding factual error based on an erroneous inference that Elizabeth did not intend to execute the June 22, 2001 documents because she did not understand the nature and consequences of those documents. This error, the appellant submits, was material to her conclusion that the presumption of undue influence was not rebutted.

Hearsay Evidence – The Principled Approach

Hearsay Evidence - The Principled Approach

The Courts have generally in recent years allowed the introduction of hearsay evidence stating that it should be done so under a principled approach. It is a fact that most estate disputes when litigated often refer to statements from the grave and what was stated by the deceased prior to death and other types of hearsay that is not usually admissible into evidence.

Mac v Mak 2016 BCSC 1140 quoted the following excerpt of law that summarizes hearsay evidence in estate litigation:

Justice Dardi considered the principled approach to the hearsay exception in Harshenin v. Khadikin, 2015 BCSC 1213.  Hearsay evidence is presumably inadmissible when relied upon for the truth of its contents.  However, if the statement is not proffered for its truth or is proffered pursuant to a well-established exception, such as for the deceased person’s state of mind, it is admissible: Harshenin at para. 30, citing R. v. P(R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.).

[32]        However, the evidence must carry indicia of trustworthiness: R. v. Panghali, 2010 BCSC 1114 at para. 21.

[33]        Justice Dardi noted in Harshenin that statements attributed to the deceased may require application of the “principled approach” to hearsay.  She referenced the four decisions of the Supreme Court of Canada that should be followed regarding the principled approach, which are R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Starr, 2000 SCC 40; and R. v. Khelawon, 2006 SCC 57: Harshenin at paras. 32 – 33.  The admissibility of hearsay under the principled approach is summarized in Khelawon at para. 2:

… When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails.

[34]        The onus is on the party tendering the hearsay evidence to establish the necessity and reliability on a balance of probabilities. The court in this case must assess both the threshold reliability of the statement at issue and the statement’s ultimate reliability, having regard to the entirety of the evidence: Khelawon at paras. 2-3.

[35]        Of the twin requirements, namely necessity and reliability, necessity will be met if the maker of the statement is deceased: Harshenin at para. 34.

[36]        To establish reliability, the court must examine the circumstances surrounding the making of the statement.  Justice Dardi described this inquiry as follows:

[35]      … A circumstantial guarantee of trustworthiness is established if the statement was made in circumstances which “substantially negate” the possibility that the declarant was untruthful or mistaken: Smith at 933.

[36]      As a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was made by the Deceased before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 at para. 99. In essence, this assessment turns on the credibility of the various witnesses: Halfpenny v. Holien (1997), 37 B.C.L.R. (3d) 186 (S.C.).

Accordingly, in the case at bar, in addition to finding on a balance of probabilities that the statement was made, the Court must find the twin requirements of reliability and necessity have been met.

[37]        Because Sau Har Mak is deceased, there is clearly the requirement of necessity.  In respect of reliability, for the reasons that follow I find the evidence of Sau Har Mak’s meetings with her family, executing the mortgage documents, and arranging the Mahon properly to be held jointly with her daughters is reliable.

[38]        When the reliability of evidence is in question, the court must look to documents that can either corroborate or refute evidence given by witnesses: Cerenzie v. Duff, 2014 BCSC 1345 at paras. 28 – 31; Gutierrez Estate v. Gutierrez, 2015 BCSC 185 at paras. 24, 51, 55, 87 to 88.

Hostile Adverse Witnesses

Hostile Adverse Witnesses

Jimmy Page of Led Zeppelin fame was called as a hostile adverse witness by the opposing counsel in the opening alleged plagiarism of “Stairway to Heaven” trial.

Rule 12-5 (19) describes an adverse witness aka hostile witness as a “party who is adverse in interest”. ie  Jimmy Page was a defendant but was called as a witness by the plaintiff’s lawyer who is suing him.

There is a general rule of evidence that a lawyer cannot attempt to impeach the credibility of his or her own witness in direct examination. You are not allowed to cross examine your own witness.

An exception on occasion arises where your witness makes testifies contrary to a previous statement or testimony, the party may direct the witnesse’s attention to the prior statement. The lawyer may seek an order that the witness is adverse aka hostile and with leave of the court, be allowed to cross examine that witness, particularly about the inconsistent testimony.

Rule 12-5 (21) states that 7 days notice before the date on which the attendance of the intended party is required,  of the intention to call the opposing party as an adverse witness ,must be given along with conduct money to attend.

Rule 12-5(22) allows no notice to be given of the intention to call a witness and seek to have them declared adverse in interest if the person is in attendance at the trial. Very often once the notice is given the opposing counsel as a matte of professional courtesy will undertake to call the party as a witness thus allowing cross examination of the witness in the usual fashion.

Rule 12-5 ( 26) provides that the party calling the witness as adverse is entitled to cross examine the witness on one or more issues.

Canada Inc. v Strother 2002 BCSC 1179 held that the obvious purpose of Rules 12-5 (19)-(22) is only to permit a party to call an adverse party witness to prove a fact or facts that could not otherwise be satisfactorily proven.

The subrules were not intended to give a party two ” kicks at the can” of cross examinations . Nor should the rule be used where an assurance has been given that the adverse party witness will be called to testify as part of the adverse party’s case.

Expert Witnesses

Expert witnesses

Once an expert becomes a witness, the expert is then presented to the court as truthful, reliable, knowledgeable and qualified.

Rule 11-2(1) makes it clear that an expert has a duty to assist the court and is not to be an advocate for any party.

The expert must certify that he or she was aware of that duty and has prepared the expert opinion and will testify in accordance with that duty.  Rule 11-2( 2)

In Vancouver Community College v Phillips , Barratt ( 1987) 20 BCLR (2d) 289 held that if the expert testifies as a witness, he or she may be required to produce all documents in their possession that are relevant to their opinion or their credibility.

However, if the expert does not testify and remains an advisor only, then privilege is maintained over the documents in their possession.

Witness Memory Difficulties and Expert Evidence

Witness Memory Difficulties and Expert Evidence

Witnesses in general on occasion have memory difficulties but where the memory is so lacking as to be unreliable, expert evidence may be admissable to show that a witness suffers from a mental disability which affects his or her ability to testify reliably.

The admissible evidence is not limited to the fact of the diagnosis, but extends to the facts and circumstances on which the diagnosis is based and the extent to which the credibility of the witness is affected .

Medical evidence will not be admissable however if the purpose is to test the credibility of the witness.

In Woolley v. College of Physicians and Surgeons of British Columbia, [1996] 6 W.W.R. 716, 19 B.C.L.R. (3d) 122 (S.C.), Justice Hall considered an appeal relating in part to the production of records. He found that the records sought related predominantly to credibility and character and, as such, did not need to be disclosed.

In R. v. Kliman (1996), 71 B.C.C.A. 241, 107 C.C.C. (3d) 549, in which the court found the trial judge had denied the appellant sufficient access to the records of the psychiatrist who had determined that the complainant had “a personality disorder-borderline” and “took liberties with facts and had an inability to distinguish what was factual from what was not” (para. 10).

R v Kliman followed  Toohey v. Metropolitan Police Commissioner, [1965] 1 All E.R. 506 at 512 (H.L.), in which Lord Pearce stated:
…
Human evidence shares the frailties of those who give it. It is subject to many cross-currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and commonsense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of fifty yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than twenty yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeing what he thought he saw. So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.
…

Document Production Litigation

Document Production Litigation

Document production in litigation in BC is now under the new rules in effect since 2010 to initially only producing documents necessary to prove a material fact.

The new rule for production of documents was discussed in Biehl v Strang 2010 BCSC 1391.

Rule 7-1(1) states:
(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.

The assumption appears to be that in many, if not most cases, such production will be sufficient. This change in scope is consistent with Rule 1-3(2) which provides:

Proportionality
(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.

[15] Rule 7-1 (14) does provide for wider disclosure upon application to the court including documents “relating to any or all matters in question in the action”.

The previous Rule 26(1) was broadly interpreted in accordance with the test described in Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.), in which the Court of Appeal stated at 62-63:

I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and the practice with regard to insurance cases shews, that the Court never thought that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.
The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down. 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 requiring the affidavit 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 requiring the affidavit 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.”

In other words, the requirement that the disclosure relate to a material fact limits the breadth of what is relevant.

[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.