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Disclosure of Documents

Disclosure of documents 2Under Rule 7 of the Supreme Court Rules, each party to litigation must list all their documents that could, if available be used by any party on record at trial to prove or disprove a material fact, and to list the documents  provide it to  all parties on record.

Disagreements arise from time to time where one adversarial opponent demands documents that the other side declines to produce, for a number of reasons,  and a chambers application can be made to seek an order compelling the production of same.

That is what occurred in Jermana v Kananga 2014 BCSC 1558 where  Master Taylor ordered the plaintiff to produce various visa statements under the provisions of Rule 7 ( 14)

The said case follows the reasoning in Global Pacific Concepts Inc  v Owners of Strata  Plan NW 141, 2011 BCSC 1752:

[7] Rule 7-1(1) provides that, unless the court otherwise orders, each party of record must prepare a list of documents that lists all documents that could, if available, be used by any party of record at trial to prove or disprove a material fact. Rule 7-1(11) provides that if a party who has received a list of documents believes that the list should include documents or classes of documents that relate to any or all matters in question in the action, then that party may, by written demand, request a further amended list of documents and an application may then be brought for further disclosure as provided in Rule 7-1(14). That rule says that on an application under subrule (13) or otherwise, the court may order a party to amend a list of documents to list additional documents that are or have been in the parry’s possession, power, or control relating to any or all matters in question in the action.

[8] These provisions of Rule 7-1 have been interpreted recently in Biehl v. Strang, 2010 BCSC 1391. In that case, the court considered the scope of

Rule 7-1(1) and, in particular, the meaning of “use by a party of record to prove or disprove a material fact”. In consideration of what is a material fact within the meaning of Rule 7-1(1), the court, at paragraph 16, noted that:

[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…. 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. [Emphasis in Biehl.]

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

The court acknowledged at paragraph 15 that Rule 7-1(14) provides for wider disclosure when an application is made to the court. In that case, documents “relating to any or all matters in question in the action” may be ordered to be produced.

[9] That wording is much closer to the test traditionally known, prior to the new Rule 7-1(1), as the Peruvian Guano test of relevancy, which is cited in Biehl at paragraph 12 to be documents which may, not 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. The question is whether a document can properly be said to contain information which may enable the party requiring the document either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, or if it may have either of those two consequences. Therefore, it is acknowledged that the initial disclosure under Rule 7-1(1) relates to a materiality requirement, but that a party can apply to the court, as the defendant did here, for broader disclosure pursuant to Rule 7-1(14).

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