Failure to Comply is Fatal: Recent BC Supreme Court Decision on Document Production

When it comes to demanding documents in a civil lawsuit, failure to comply with the rules is fatal. Document production in BC Supreme Court is governed by Supreme Court Civil Rule 7-1(10), 7-1(11), and 7-1(12) and by Supreme Court Family Rule 9-1(7), 9-1(8) and 9-1(9). In order to demand documents, you are firstly required to send a letter indicating which documents you are seeking and the grounds of relevance on which they are sought. The party receiving the demand has three options. Within 35 days, they must either list the newly requested documents on their list of documents, indicate why the requested documents are unavailable, or indicate why they are not relevant. Relevance is defined by the pleadings.

It is only after these steps are taken that a party may head to court on an application to force their production and the courts are not inclined to readily forgive a failure to comply with the rules. In Lit v. Hare, 2012 BCSC 1918, Mr. Justice Fitch emphasized the importance of complying with the rules:

“[65] Compliance with R. 9–1(7) and (8) of the SCFR (and its equivalent in the SCCR, R. 7–1(10) and (11)) is not optional and failure to observe its requirements will not readily be forgiven. I do not read Przybysz as suggesting otherwise, nor do I think that it particularly assists the applicant in this case. In fact, the case sounds a clear cautionary note about the failure to observe the requirements of this Rule. “

Recently, Madam Justice Baker overturned a master’s order for production of documents where the party requesting the documents failed to indicate the grounds of relevance on which the documents are sought. In laymen’s terms, you must indicate WHY the documents are being sought with reference to the Notice of Civil Claim or Notice of Family Claim and the corresponding responses.

In Red Avacado Sales Inc. v. Yao, 2019 BCSC 996, Madam Justice Baker commented on the deficient request and the mandatory nature of compliance with the rule:

[14] The defendant requested further documents from RES and Mr. Kalafchi, pursuant to Rule 7-1(11) of the BC Supreme Court Civil Rules, B.C. Reg. 56/2019. Rule 7-1(11) requires parties seeking further documents to indicate the reason why requested documents should be disclosed. The reason given by the defendant for the request for credit and debit card statements was that it was unusual for a small company to have such a large volume of credit options available, and that the defendant was entitled to see who actually made the purchases claimed. Other than making the bald statement that the other requested documents are relevant, no actual reason for the relevancy of the other documents sought was provided by the defendant.

[15] The purpose of Rule 7-1(11) is explained in Przybysz v. Crowe, 2011 BCSC 731, and the mandatory nature of the Rule is confirmed in Lindgren (Guardian ad litem of) v. Parks Canada Agency,2017 BCSC 721. In my view, the defendant did not satisfy the burden upon her to identify a reason for the disclosure of the bulk of the requested documents. Only with respect to the credit and debit card statements did the defendant articulate any reason for their production.

Additionally, Madam Justice Baker emphasized that the grounds of relevance must be obvious from the pleadings as filed and counsel is not permitted to “fill in the blanks” at a hearing:

[29] Similarly, there is no allegation putting into issue the use of the funds allegedly loaned by the defendant. The allegation is simply that the loans were made.

[30] While counsel are required to explain how documents are relevant, and such explanations often involve more detail that the pleadings themselves, the court must always be able to link the explanations to the pleaded allegations. It is not correct for a court to accept submissions of counsel which effectively create whole new unpleaded allegations.

[31] In Hawkeye Power Corporation v. Sigma Engineering Ltd., 2012 BCCA 414, the Court of Appeal found that the trial court had committed a procedural error in deciding a case on an issue that was not pleaded or argued. In the case before me, the Master allowed the defendant to rely on unpleaded allegations to support a document production order which could not stand with reference to the pleadings alone. I find this was an error of the Master for the reasons articulated in Hawkeye Power Corporation. A party is entitled to know the case to be met and the theory of liability as articulated in pleadings. The fact that RES and Mr. Kalafchi were before the Master when the new allegations were argued for the first time is not sufficient to overcome the pleadings deficiency