Case Summary by John W. Bilawich
Re: Rules 7-1(1) and Rule 1-3(2) – discovery  of documents
Biehl v Strang – 2010 BCSC 1391 per Mr. Justice Punnett
Action on claims for breach of contract, unjust enrichment and quantum meruit and included allegation of an agreement partly oral and partly by conduct.  Agreement disputed by defendants.  Plaintiff’s evidence concerning events relating to the alleged agreement are crucial to the case.  Issue raised about the reliability of the plaintiff’s memory.  Events occurred during a 2001 – 2005, the latter portion of which plaintiff used heroin, cocaine, crack cocaine, methadone, speed, alcohol, and certain prescription drugs. Defendants allege the plaintiff’s drug use may have impaired his memory, allegations supported by a preliminary report from an addiction expert that the drugs involved could cause memory impairment. Expert needed general drug use information and prescription history of plaintiff.  Defendants also seek production of diary extracts which plaintiff’s counsel had refused to produce.  Diary may include some record of the plaintiff’s drug usage.  Application for production of these documents under Rule 7-1(1).  Defendants argued that the plaintiff’s memory was a material fact.  He may have suffered memory loss and be incapable of giving reliable evidence, hence the interests of justice require such evidence be available to them.  Alternative application for plaintiff to submit for further examination for discovery and produce all denoted documentation.  Plaintiff objected that the prescriptions and drug extracts from the diary could not be used to prove a material fact, as the information sought goes solely to credibility, so production is not required.
Justice Punnett discusses:
(a) the differences between the scope of the old discovery rule and the scope of document production under the new rule 7-1(1)
(b) what is a material fact; and
(c) whether the reliability of the plaintiff’s memory is a material fact.
Re: Differences new rule to old
After quoting Rule 7-1(1) and old Rule 26(1) and quoting from the Peruvian Guano test:
[12]        Rule 26(1) was broadly interpreted in accordance with the test described in Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.), in which the Court of Appeal stated at 62-63:
I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and the practice with regard to insurance cases shews, that the Court never thought that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.
The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down.  It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.  I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences …
[Emphasis in original]
[13]        In British Columbia, unless restricted by court order, the obligation was to produce at an early stage in the proceeding an often substantial number of documents — many of which were subsequently determined to be irrelevant to the issues in dispute.
[14]        The new rule replaces that requirement. Now the initial production obligation is limited to what is required to prove or disprove a material fact rather than what relates to every matter in question. The assumption appears to be that in many, if not most cases, such production will be sufficient. This change in scope is consistent with Rule 1-3(2) which provides:
(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.
[15]        Rule 7-1 (14) does provide for wider disclosure upon application to the court including documents “relating to any or all matters in question in the action”.
Re:  What is a material fact
What is a Material Fact?
[16]        In Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada, 2009) at para. 2.50, relevance is distinguished from materiality:
§2.50   A distinction has also been drawn between relevance and materiality.  Evidence is material in this sense if it is offered to prove or disprove a fact in issue.  For example, evidence offered by a plaintiff in a conversion action to prove a loss of profit is not material since loss of profits cannot be recovered in such an action, and evidence that an accused charged with forcible entry is the owner of the land is immaterial since the offence can be committed by an owner.  This evidence may very well be immaterial, but it is also simply irrelevant.  This excluded evidence is no more required to make out the case than is evidence that the accused owns three other properties or owns a black dog for that matter.  There is no probative connection between the fact to be proved and the facts in issue as determined by the substantive law.  Little is added to the analysis by adding a concept of materiality, as different results do not depend on the distinction.  The concept of materiality, however, requires the court to focus on the material issues in dispute in order to determine if the proffered evidence advances the party’s case. [Footnotes omitted.  Emphasis added.]
In other words, the requirement that the disclosure relate to a material fact limits the breadth of what is relevant.
[17]        The authors of The Law of Evidence in Canada define relevance at para 2.35:
§2.35   A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s A Digest of the Law of Evidence, where it is defined to mean:
… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.
Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:
For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other.  One fact is not relevant to another if it does not have real probative value with respect to the latter.
[18]        In January 2009, Rule 14.01(1)(a) of the Nova Scotia Civil Procedure Rules changed document production in Nova Scotia by requiring a judge to determine relevancy “by assessing whether a judge presiding at the trial or hearing of the proceeding would find the document … relevant or irrelevant”.
[19]        The Nova Scotia Supreme Court in considering the new rule in Halifax Dartmouth Bridge Commission v. Walter Construction Corporation, 2009 NSSC 403, 286 N.S.R. (2d) 179 at para. 18, stated:
[18]      … As to what is meant by relevancy, in Sydney Steel v. Mannesmann Pipe (1985), 69 N.S.R. (2d) 389 (S.C.T.D.), Hallett, J. (as he then was) stated, at paras. 14-18:
[17] In the Law of Evidence in Civil Cases by Sopinka and Lederman, at p. 14 the authors also make reference to the quotation from Stephen's Digest as to the meaning of relevance and make the following statement that is applicable and worthy of consideration when assessing the relevancy of the documents that are before me on this application:
"The facts in issue are those facts which the plaintiff must establish in order to succeed together with any fact that the defendant must prove in order to make out his defence. It is seldom possible to prove a case or establish a defence solely by direct evidence as to the facts in issue and, therefore, the law admits evidence of facts, which, although not themselves in issue, are relevant in the sense that they prove or render probable the past, present or future existence (or non-existence) of any fact in issue.
"The facts in issue are controlled by the date of the commencement of the action. All facts essential to the accrual of a cause of action must have occurred prior to commencement of the action but evidence may be tendered as to facts occurring after the commencement of the action if they merely tend to prove or disprove the existence of the facts in issue. On the other hand any fact giving rise to a defence need not have occurred before the commencement of the action. An admission after the issue of the writ by one of the parties is admissible and conduct which is tantamount to an admission is equally admissible.
"The state of mind of a party may be proved as a fact in issue or as tending to prove or disprove a fact in issue. Thus the knowledge of a party may be directly in issue or relate to a matter directly in issue." [emphasis by Hallett J.]
Re:  Whether the reliability of the plaintiff’s memory is a material fact
Is the Reliability of the Plaintiff’s Memory a Material Fact?
[20]        The defendants submit that the plaintiff’s ability to remember is a material fact given the contractual claim is substantially based on oral terms which by their nature rely on the memory of the parties. The defendants refer to Toohey v. Metropolitan Police Commissioner, [1965] 1 All E.R. 506 at 512 (H.L.), in which Lord Pearce stated:
Human evidence shares the frailties of those who give it. It is subject to many cross-currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and commonsense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of fifty yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than twenty yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeing what he thought he saw. So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.
[21]        In Woolley v. College of Physicians and Surgeons of British Columbia, [1996] 6 W.W.R. 716, 19 B.C.L.R. (3d) 122 (S.C.), Justice Hall considered an appeal relating in part to the production of records. He found that the records sought related predominantly to credibility and character and, as such, did not need to be disclosed. He then addressed at para. 20 “[a] possible narrow exception … in cases such as” Toohey. After referring to the quotation from Toohey above, he stated at para. 21:
It seems to me that if evidence of that sort were found to exist in the course of review of documents by a court or tribunal, its existence ought properly to be disclosed to counsel to enable the matter to be developed so that a just result can be reached by the trier of fact …
[22]        Toohey was followed in R. v. Kliman (1996), 71 B.C.C.A. 241, 107 C.C.C. (3d) 549, in which the court found the trial judge had denied the appellant sufficient access to the records of the psychiatrist who had determined that the complainant had “a personality disorder-borderline” and “took liberties with facts and had an inability to distinguish what was factual from what was not” (para. 10).
[23]        The court at para. 63 stated:
[63]      Expert evidence is admissible to show that a witness suffers from a mental disability which affects his or her ability to testify reliably. The admissible evidence is not limited to the fact of the diagnosis, but extends to the facts and circumstances on which the diagnosis is based and the extent to which the credibility of the witness is affected …
[24]        The plaintiff has referred to Sandhu (Guardian ad litem of) v. Philipow (1996), 24 B.C.L.R. (3d) 78, 49 C.P.C. (3d) 317 (S.C.), in which the plaintiffs sought abstracts of the defendants’ driving records for the purpose of determining whether the defendants had been convicted of any offences arising out of the accidents in question or any other offences. The application was denied because whether the defendants had been convicted was a collateral issue going only to credibility. The plaintiff also refers to Stathis v. Jones, Gable & Co., [1982] B.C.J. No. 1337 (S.C.) for the same principle: discovery on the issue of credibility is not permitted. There is no dispute with the principles set out by these cases, but they do not assist the plaintiff as the medical issue in this case relates to the reliability of his memory which is not a collateral issue here.
[25]        The defendants argue that the reliability of the plaintiff’s evidence, given the potential memory loss from drug use, is at issue in this case. The plaintiff asserts that reliability includes credibility and a line cannot be drawn between reliability and credibility. Therefore the information relates only to credibility and as such is a non-material collateral fact.
[26]        “Reliable” is defined in the Concise Oxford English Dictionary, 11th ed.,as the “able to be relied on.” Credibility relates to whether or not the court accepts or believes the evidence. In assessing credibility, the court may consider how reliable the evidence is.
[27]        In my view, the error in the plaintiff's position is conflating reliability and credibility when the former is but part of the latter. The ability of the plaintiff to remember is, in my opinion, relevant to proof of a material fact, namely the existence of a contract based on oral terms.
[28]        Frequently courts take into account factual considerations, such as the ability of a witness to see or hear what occurred, in determining whether evidence is reliable and should be accepted. Surely, if an individual has suffered damage to his cognitive or memory functions, that is equally a relevant fact.
[29]        I am satisfied that, if otherwise admissible, the requested production is relevant and could prove or disprove a material fact. Rule 7-1 does not restrict production to documents that in themselves prove a material fact. It includes evidence that can assist in proving or disproving a material fact.
He granted the defendants application.