Court Compels Production of Documents From Out of Jurisdiction
Whether the British Columbia Supreme Court has the power to order a litigant to authorize a third party in another jurisdiction to produce their records to another litigant has been a recent debate in our courts.
The issue was addressed in NIKOLIC V. OLSON, 2011 BCSC 125.
This was an application related to a personal injury action where the plaintiff claimed non-pecuniary damages and wage loss. The plaintiff lived in Saskatchewan but the accident occurred in British Columbia. The defendant was not satisfied with the document discovery that had been received, so he brought an application to compel the plaintiff to consent to production of his records held by a number of persons and agencies located in Saskatchewan including a number of doctors and an insurance agency.
Mr. Justice Williams concluded that the Supreme Court can make an order requiring a litigant to authorize a third party, whether within or outside this province, to produce records relating to him or her to another litigant. The jurisdiction to do so is based on the RULES OF COURT. As such, the order was made.
The first point in the reasons for judgment was that it did not matter if the third party record holder was out of the jurisdiction. If the Court were to grant the application, it would be exercising its jurisdiction over the plaintiff himself, not over the foreign non-party record-holders (which it does NOT have). Regardless of the location of the records, the plaintiff still has an obligation to disclose them. The Court emphasized the importance of full and honest disclosure, and noted that this important component of the civil process could be hindered if parties were allowed to hide relevant documents outside the jurisdiction.
Discussion then turned to the RULES OF COURT. While this case was decided under the old SUPREME COURT RULES, Williams J. noted that equivalent provisions in the current SUPREME COURT CIVIL RULES provide further context and future guidance. Rule 26(1) of the former RULES specifies that a party is required, on demand, to deliver a list of documents that “are or have been in the party’s possession or control relating to every matter in question in the action”. Rule 7-1(1) of the current RULES does away with the need for a demand but limits the scope of discovery to documents that “are or have been in the party’s possession or control and that could, if available, be used … to prove or disprove a material fact”.
The Court referred to the case of PEEL FINANCIAL HOLDINGS LTD. V. WESTERN DELTA LANDS, 2003 BCCA 180, which in the past had formed the basis for the proposition that the Court had no power to compel a party to give consent to anything. Justice Williams distinguished this case because it did not relate to discovery. The RULES OF COURT pertaining to discovery leave little, if any, room for considerations of consent. It is a foundational principle that the litigating parties are lawfully obligated to effect full and complete disclosure and the court has the discretion to make orders directing a substantive process to occur.
In concluding, Justice Williams made it clear:
This Court has the authority under the former RULES to compel production and to specify the mechanics of its production orders. Rule 26(1.1) permits the court to order a litigant to list documents in his or her power, which may include those held by foreign non-parties. Rule 26(10) empowers the court to order a litigant to produce a document for inspection and copying in the manner it thinks just. Furthermore, R. 1(12) grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively, a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.
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