Production of Documents: Court Ordered Affidavit to Verify

Production of Documents: Court Ordered Affidavit to Verify | Disinherited

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”

Cross Examination On An Affidavit

Cross Examination On An Affidavit | Disinherited Vancouver Estate Litigator

In HMB Holdings Ltd v Replay Resorts Inc 2018 BCCA 263 the BC Court of Appeal reviewed the law relating to cross examination on an affidavit.

The authority to order cross examination on an affidavit is found in Rule 22-1( 4)(a) of the Supreme Court Civil Rules. It is a discretionary jurisdiction to which difference is owed.

The appeal court will not interfere with the decision to grant or refuse cross examination, unless the chambers judge has committed an error in principle in resolving the application.

The applicable principles to be applied when reviewing a chambers judgment by the Court of Appeal for refusing cross examination on an affidavit were discussed in Balla v Fitch research Corp. 2000 BCCA 448 which followed the decision of the BC Court of Appeal in Brown v. Garrison 63 WWR248 at paragraph 250:

“clearly, and it is being long so held, the judge has a discretion which he or she must exercise on proper principles as to whether or not cross examination should be directed on the application of a party. There is no question that in the normal course where the affidavit on which the cross examine is sought includes facts that are an issue, the deponent will be so ordered to attend if it application therefor is sought. But the circumstances may be such that the judge may properly exercise his or her discretion to refuse such an application, and in this case, I am of the opinion such circumstances existed. This court has great reluctance to interfere with the exercise of a judge’s discretion unless it is clear that that discretion has been wrongly exercised in that no sufficient weight has been given to relevant considerations or that on other grounds a miscarriage of justice resulted”

At paragraph 251, the court continued:

“if facts need to be determined the trial of an issue is an appropriate or even regular method for such determination, but if there is little or no dispute as to facts it is obviously quite proper for the judge to exercise his or her discretion to deal with the problem summarily. Here, although the facts were not admitted, they were not attacked so that, in substance, the learned judge had only to determine a question of law, or at the most a question of mixed fact and law.

The appeal court reversed the decision in Rheault v Rheault (1988) 2 BCLR (2d) 138 when it concluded that the chambers judge had erred in exercising his discretion as the facts deposed to in the affidavits were challenged and an issue, and the chambers judge had overlooked the real issue sought to be established by the cross examination.

In HMB Holdings the appeal court concluded that the chambers judge applied too strict a test to determine whether factual assertions were challenged, and in issue, holding that if the chambers judge’s conclusion were to be sustained, the respondents would be insulated from having their evidence tested on an application which was directed to the dismissal of the plaintiff’s case.

Accordingly, the court ordered cross examination of the affidavit in question.