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”

Document Disclosure and Production

Document Disclosure and Production | Disinherited Vancouver Litigation

McLeod v Balakrishnan 2018 BCSC 908 reviews the law relating to document disclosure and production  in litigation.

The case dealt with two applications, namely that the defendant provide a comprehensive list of documents, as well as an order that she produce documents requested of her at her examination for discovery. The action involved a claim under the former wills variation act, and the estate was valued in excess of $19 million.

The plaintiff was the deceased’s son , who claims he was not adequately provided by the deceased.

The deceased set up to trusts that were valued in excess of $135 million that were not included in the valuation of the estate.

The principles considered on applications for document disclosure were summarized in Marsh Canada Limited v BFL Canada Insurance Services, Inc. 2014 BC SC 1171, beginning at paragraph 65:

“The rules provided two-tier process for document disclosure:

  1. Disclosure under rule 7-1(11)-(14) requires all documents that are or have been in the party’s possession or control, and that could, if available, be used by any party of record at trial to prove or disprove the material fact.
  1. Disclosure under 7-1 (11)-(14) requires documents that relate to any or all matters in question in the action. Thus, any document that is identified as relating to a matter in question in the action, which normally would be evidence upon an issue, but also which contains information which may, not which must, either directly or indirectly, enable the party, either to advance his own case, or to damage the case of his adversary. Kaladjian v Jose 2012 BCSC 357 at paras.44-45.
  1. By applying the proportionality principle embodied in rule1-3(2) an attempt is made to balance the burden of producing the documents in terms of time, cost and effort against the materiality and probative value. Proportionality does not only relate to monetary quantification, but also relates to the importance of the issue in question – Isman v City of New Westminster 2011 BCSC 125 at para. 14.

 

The following principles also apply:

  1. Full and complete disclosure between or among litigants prior to trial is essential to the truth seeking function of the litigation process and the proper administration of justice Nikolic v Olson 2011 BCSC 1066 at para. 14;
  2. It is the pleadings that determine relevance- Burgess v Buell Distribution Corportion 2012 BCSC 1494 at paras. 16-17;
  3. The interests of justice may require production of relevant documents, notwithstanding the high interest of a party and keeping it confidential- A.M. v Ryan (1997) 1 SCR 157 at para. 37;
  4. A party asserting that a document is privilege bears the onus of establishing the privilege- Hamalainen v Sippola (1991) 62 BCLR (2d) 254 CA at para. 19;
  5. The removal of the ” train of inquiry” test of relevance will generally require a party to provide some evidence to support an application for additional documents where demand is made under rule7-1(11) or Rule 7-1 (18);

 

The principles that apply in respect of the balance between disclosure and confidentiality were summarized in Altec Design Group Ltd v Motion Works Inc (1992) BCJ 2451 ( SC):

  1. The necessity for complete disclosure litigation cases supersedes the fact that a party may lose a competitive advantage when disclosure is made Forestral Automation Ltd v RMS Industrial Controls Inc (1977) 4 BCLR 219;
  2. In maintaining a balance between disclosure and confidentiality, the governing principle is to lean in favor of openness and disclosure- Deveron-Hercules Inc v. gill 21 CPC ( 2d) 455;
  3. The party viewing the confidential material shall give an undertaking to the court and the opposite party, the terms of which may vary from case to case- GEAC Canada Ltd v Prologic Computer Corp. 24 CPC (3d) 566;
  4. The party who is documents are being disclosed to be examined by an expert is entitled to have a representative present during the examination;
  5. An order preventing counsel from showing relevant documents to his client should only be granted in exceptional circumstances;
  6. The onus is on the party requesting the restriction to establish a legitimate reason for that restriction;
  7. Matters that do not require technical expertise, the parties may be required to produce the documents to a third party for the examination report to the court;
  8. In instances in which the probative value of the documents is not sufficiently great to outweigh the real and very considerable adverse effect of disclosing the trade secret, disclosure ought not to be ordered- Webster v Mastercraft Development Corp. (1991) 55 BCLR (2d) 121

Generally speaking, the court ordered production of several of the financial and estate documents to be produced, while also denying many other requests on the basis that they were unduly intrusive or not relevant.