Grandmaison v Berkenbos 2018 BCSC 1329 reviewed the law relating to when a court will order an affidavit to verify the legal test for the court to order an affidavit verifying the production of a list of documents.
The trial lasted 165 days, and involved 31 interlocutory court applications.
The Supreme Court decision was review of the Masters order that ordered production of the affidavit verifying the list of documents.
The court upheld the Masters decision on the basis that the master had reason that the appellant’s attitude to production brought reasonable cause to suspect that relevant documents may be hidden.
The test was set out in Centura Building Systems v Blackcomb Mountain development Ltd 2007 BCSC 939 at para. 38”:
“ The court has the discretion, under rule 26 (3) to order such an affidavit were document production has been clearly in adequate, or where a party has displayed a dilatory or casual attitude to document production. However, an affidavit will not be ordered were there has been a genuine dispute about what is producible. Where case involves a large number of documents. Some flexibility may be required.”
The term clearly inadequate was described in Copithorne v Benoit 2010 BCSC 130 at para. 11:
Rule 26(3) of the Rules of Court provides that a court may order that a party provide an affidavit verifying a list of documents. A useful authority on this issue is the decision Foundation Company of Canada LTD v Burnaby (1978) BCJ 557 at paragraph 7
“When some documents which are significant to the defense her claim of one party have, for whatever reason, been omitted for many list delivered under rule 26
(1) in the absence of any adequate explanation or reason for such a mission, an order directing the delinquent party to deliver an affidavit verifying the list of discovered documents ought, in my view, to be made.
The term ”dilatory or casual attitude” has been described as an attitude that gives the other parties reasonable cause to suspect that either deliberately or by willful indifference, relevant documents may be hidden from them. Synergy management Group Ltd v Walker Systems Corp. ( 1992) BCJ2109 at paragraph 15.
The court concluded that the court may order a party of record to serve an affidavit verifying a list of documents and circumstances, including:
1. when document production has been clearly inadequate meaning documents that are significant to the defense her claim of one party have been omitted for many list delivered under the rule, and there is no adequate explanation or reason for the omission; or
2. When a party has displayed a dilatory or casual attitude to document production, giving the other party reasonable cause to suspect that either deliberately or by willful indifference, relevant documents may be hidden from them
In addition, an affidavit will not be ordered where there is a genuine dispute as to what is producible.
The court concluded that suspicions by themselves are sufficient for an order pursuant to rule 7-1(8) the suspicions in that case were supported by conduct that gave the other party reasonable cause to suspect that relevant documents may be hidden from them.
Gardner v Viridis Energy Inc 2012 BCSC 1816 frame the legal test as follows. At paragraph 52:
“ Rule 7-1(8) permits a court to order that a party provide an affidavit verifying its list of documents when the absence of any adequate explanation, relevant documents have been omitted from the list of documents. Such an order may also be made were party has shown a dilatory and casual attitude to production of documents, leading to an inference that either deliberately or by willful indifference, relevant documents may be hidden”
