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Two Tier Disclosure and Documentary Relevancy

What are the document disclosure requirements for third parties? Is the two tier system established by Rule 7-1(1) and 7-1(11) applicable to third parties?

In a well-cited 2012 decision, Master Davies discussed the test for documentary relevance (Kaladijan v Jose 2012 BCSC 357).  Prior to the enactment of the Supreme Court Civil Rules in 2009, the test for documentary relevancy came from an 1882 case known colloquially as Peruvian GuanoPeruvian Guano set a fairly broad standard for document disclosure, requiring disclosure of documents that “may fairly lead to a line of inquiry which may ‘either directly or indirectly enable the party…to advance his own case or damage the case of his adversary.”

As Master Davies notes in Kaladijan, Rule 7-1(1) changed the test for documentary relevance.  Rather than requiring parties to list at first brush any document that might lead the other party down a chain of inquiry, Rule 7-1(1) only requires parties to list documents that could be used at trial to prove or disprove a material fact, and documents that the disclosing party intends to rely on at trial.  Rules 7-1(10) through 7-1(14) have a broader requirement, requiring parties to list documents to the Peruvian Guano standard once the other party has made a request for those documents.

At issue in Kaladijan was whether Rule 7-1(18), which governs documents disclosure by third parties, requires those third parties to disclose only those documents that could be used at trial to prove or disprove a material fact until broader disclosure is requested, or whether it requires those third parties to conform at first instance to the broader disclosure standard set out in Rule 7-1(11) and (12).

Master Davies found that third parties – like a party to the action – are subject at first instance only to the narrower standard of disclosure:

42      I say that the test of documentary relevance is changed “at first instance” because Rule 7-1 also provides processes by which broader disclosure can be demanded of a party under Rules 7-1(11) through (14) under which the court can decide whether, and if so, to what extent, broader disclosure should be made.

43      In Crowe, Master Bouck discussed those processes in the context of the stated objectives of the present Rules. At para. 23 she stated:

[23] All of these Rules are to be interpreted in accordance with the objective of the SCCR:

1-3(1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

44      In specific reference to Rules 7-1(11) and (12), Master Bouck then went on to say at paras. 27 to 29:

[27] … Those Rules contemplate a broader scope of document disclosure than what is required under Rule 7-1(1)(a). Indeed, the two tier process of disclosure (if that label is apt), reflects the SSCR’s objective of proportionality. In order to meet that objective, the party at the first instance must put some thought into what documents falls within the definition of Rule 7-1(1)(a)(i) but is not obliged to make an exhaustive list of documents which in turn assists in the “train of inquiry” promoted in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at pp. 62-63(Q.A.).

[28] Only after a demand is made under Rule 7-1(11) for documents that relate to any or all matters in question in the action and the demand for productions is resisted can a court order production under Rule 7-1(14). It should be noted that in this case, the demand (and indeed order sought) is for production of additional documents, not simply a listing of such documents: see Rules 7-1(1) (d), (e) and (f).

[29] The court retains the discretion under Rule 7-1(14) to order that the party not produce the requested list or documents. Again, the court must look to the objectives of the SCCR in exercising this discretion.

45      I agree with those observations which are, in my view, equally applicable to the interpretation and application of Rule 7-1(18).

46     The introduction of the concept of proportionality into the present Rules together with the need for a party to satisfy the court that additional document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform the interpretation of Rule 7-1(18). It also satisfies me that cases decided under the former Rule 26(11) are of limited assistance in interpreting and applying Rule 7-1(18) in motor vehicle cases.