June 6, 2014

Kevin Gourlay

Reasons for judgment yesterday from Mr. Justice Kent in Imperial Parking Canada Corporation, v. Anderson, 2014 BCSC 989, giving judicial force to the article he wrote on document production prior to his appointment: Kent “Discovery of Documents Under Supreme Court Civil Rule 7-1: Technical and Evidentiary Conundrums”, 70 Advocate 703, (2012).

Justice Kent’s reasons highlight the new two-tiered system for document production and the heightened responsibility on counsel to exercise their professional responsibilities in producing documents:

[26]         Competent and ethical counsel can reasonably disagree in any given case on the materiality of certain facts or the relevance of documents related to such facts.  Indeed, Rule 7-1 expressly contemplates such disputes being brought for and resolved by the court.  But proper and professional conduct does not permit deliberate non-disclosure of documents which are required to be disclosed, nor knowing disregard of the Rules based on cynical assumptions respecting strategy or cost.  The discovery of documents under the new rule demands good judgment and utmost integrity, perhaps even more so than in the past.

 After initial disclosure has been made, the opposing party can make demands to trigger the second tier of disclosure.  However, there must be reasonable specificity in the demand:

[34]         Rule 7-1(11) requires that any written demand for additional documents or classes of documents must identify same “with reasonable specificity”.  Where the demand is overly broad and vague, the “lack of specificity which characterizes [the] application is fatal to its success”:  Lit v. Hare, 2012 BCSC 1918 at para. 68.  In that case, the court noted at para. 68:

“It is difficult for the court to adjudicate on a document production application where what is sought are “all documents not yet produced” in broadly defined categories.”

Lastly, the plaintiff controls the litigation and there is nothing improper with a plaintiff narrowing the scope of its pleadings to limit its document production obligations:

[47]         The plaintiff replies that it is not seeking compensatory damages for its own actual losses but only disgorgement.  The plaintiff has deliberately narrowed its pleadings to expressly remove claims for compensatory damages in tort based on the plaintiff’s own loss thereby rendering the latter subject irrelevant.  It argues “a litigant is dominus litus and free to withdraw any particular relief sought” thereby eliminating the necessity for document discovery related to the relief in question, citing Fortunato v. The Toronto Sun (2001), 55 O.R. (3d) 371 (S.C.J.).

[49]         The plaintiff is frank in acknowledging it has expressly amended its pleadings to avoid production of its new confidential information.  It says, in effect, “these defendants have already stolen our old/former confidential information, and we are simply not prepared to produce any new confidential information developed since their departure even though it means forgoing any remedy for compensatory damages”.

[50]         Again, I find myself in agreement with the plaintiff’s argument.  Because the relief sought is limited to disgorgement of monies received and not compensatory damages in tort, the extent of loss or damage actually sustained by the plaintiff as a result of the defendants’ allegedly illegal conduct has become irrelevant.  To the extent it might affect any award of punitive damages, it is still open to the defendants to argue the plaintiff’s failure to adduce evidence in that regard means any such award should be negated or made in only a modest amount.





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