Rule 7-1(21) of the Supreme Court Rules states that unless the court orders otherwise, 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.
In Tran v Kim Le Holdings Ltd 2011 BCSC 1463 at para. 19 the court stated that even if a document has not been listed, the court may exercise discretion to admit a document in evidence based upon the exercise of the following principles:
1) whether there is prejudice to the party that is being cross examined ;
2) whether a reasonable explanation for the party’s failure to disclose has been provided;
3) and whether excluding the document would prevent determination on the merits.
Privileged documents must still be disclosed in the lists of documents.
In Edwards v Ganzer 2012 BCSC 138 the principles of document production were summarized:
1) the initial production obligation of Rule 7-1 is limited to what is required to prove or disprove a material fact;
2) Rule 7-1(10) allows the opposing party to issue a written demand requiring the listing party to amend the list of documents and produce documents that should have been disclosed ;
3) Rule 7-1(11) allows the opposing party to issue a written demand requiring the sling party to amend the list and produce documents which ought to be disclosed under a test “close to” that known as the Guano test (1882) 11 QBD 55 at 63
4) the distinction between the two types of disclosure provided for in Rule 7-1 is stated as :
“the question is whether a document can properly be said to contain information which may enable the party requiring a 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 disclose under Rule 7-1(1) relates to a materiality requirement , but that the party can apply to the court , as the defendant did here , for broader disclosure pursuant to Rule 7-1 (14)
5) Both the demand by the requesting party and the response of the opposing party should set out in writing addressing the terms and criteria used under Rule 7-1. Whether the demand and response provide sufficient particularity is a mater of the court’s discretion;
6) If an application is brought under Rule 7-1(13) for the listing or production of documents , the court may either order compliance with the demand, excuse full compliance , or order partial compliance Rule 7-1 ( 14)
7) The objectives of the Supreme Court Rules including proportionality , may be taken into account by the court when exercising its discretion under Rule 7-(14) The proportionality rule can be applied to either expand or restrict the required production of documents ( Whitcombe v Avec Insurance Managers Inc 2011 BCSC 204)
Rules 7-1(10) and (11) as discussed in Imperial Parking Canada Corp. v Anderson 2014 BCSC 989 provide for the second tier of the new document discovery process.they allow a party to demand the listing and production of additional documents beyond what has already been disclosed, but there is a major difference between the two subsections, namely :
-a demand under Rule 7-1(10) is for additional documents that should have been disclosed under Rule (1) -documents that are probative evidence of a material fact or any other document to which the party intends to refer to at trial, whereas the additional documents that may be demanded under Rule 7-1(11) are for such other documents within the listing party’s “possession, power or control” and which relate to any or all matters in questions in the action
Rule 7-1(11) requires that a written demand for additional documents or classes of documents under the broader definition of relevancy identify them with “reasonable specificity” or the application will fail Lit v Hare 2012 BCSC 191 at para. 68.
These same principles also govern applications pursuant to Rule 7-1(18) for production of documents from non parties as explained in Kaladjian v Jose 2012 BCSC 357