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Admissibility of Non Disclosed Documents

Admissibility of Non Disclosed Documents

Tran v Kim le Holdings Ltd 2011 BCSC 1463 dealt with the circumstances where the court will exercise its discretion to admitted into evidence documents that were not listed on a parties list of documents. During that trial a party had attempted to cross examine an opposing party with the document that had not been listed on the examiners list of documents.

Rule 7‑1(21) pertains and  reads as follows:

“Unless the court otherwise orders, if a party fails to make discovery of or produce for inspection or copying a document as required by this rule, the party may not put the document in evidence in the proceeding or use it for the purpose of examination or cross-examination.”

[18] Even if the document has not been listed, as it ought to have been, it is still necessary for me to exercise my discretion. That discretion is governed by three Court of Appeal cases:  Stone v. Ellerman, decided June 24, 2009; Dykeman v. Porohowski, 2010 BCCA 36, decided January 26, 2010; and Cahoon v. Brideaux, 2010 BCCA 228, decided May 11, 2010.

[19] Both Cahoon and Dykeman refer to Stone. Cahoon does not, however, refer to Dykeman, even though both Cahoon and Dykeman are cases involving documents generated by the party who was to be cross-examined on them. What is clear, however, from these cases is that my discretion has to be exercised on the basis of the following principles:

(a) whether there is prejudice to the party being cross-examined ‑‑ in this case, of course, it is a witness who is being cross-examined, but the relevant prejudice is to the defendants;

(b) whether a reasonable explanation of the party’s failure to disclose has been provided;

(c) whether excluding the document would prevent the determination of the issue on its merits; and

(d)whether, in the circumstances of the case, the ends of justice require the documents to be admitted.

In this case, the court weighed the competing interests and decided to allow the document.

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