Case Summary by John W. Bilawich
 
Re: Rule 7-1 (18) - (Family Rule 9-1 (15)) – Production of Documents in Hands of Third Party
Case: N.B. v. S.B.– 2010 BCSC 1487 per Master Bouck
 
 
Family Rule 9-1 (15) mirrors old Rule 26(11) but requirement to produce is modified by the requirement to show that the documents sought relate to a material fact – Court will not speculate about what possibly relevant information may be in a third party’s file – first decision to reference to Biehl v. Strang,2010 BCSC 1391
 
Family case.  Application for production of records in hands of third parties, including ICBC, Royal Bank of Canada and a mortgage broker.  Master Bouck says language in new Rule 9-1(15) [Civil Rules equivalent = Rule 7-1(18)] mirrors language in old Rule 26(11) and refers to Dufault v. Stevens [1978] B.C.J. No, 1219 for principles to be applied to these applications.
 
Production of documents under Family Rules is no longer governed by Peruvian Guano test, rather documents to be produced are those that could, if available, be used by any party at trial to prove or disprove a material fact.  Refers to Biehl v. Strang 2010 BCSC 1391 re requirement that disclosure relate to a material fact limits the breadth of what is relevant, and for principle that discovery on the issue of credibility is not permitted ... credibility is not a material fact.  The question the court must ask is whether the documents sought relate to a material fact.
 
Issues are defined in the pleadings.  Entitlement to spousal support and validity of the separation agreement are issues issue.  The claimant’s ability to earn income is a material fact re spousal support.  The claimant’s reporting of income to a third party does not go to a material fact ... it only relates to the claimant’s truthfulness and credibility, so it is not the subject of discovery, so Royal Bank of Canada and mortgage broker documents applications were dismissed.
 
Production of ICBC file was objected to based on litigation privilege.  It was not applicable here because it can only raised by the party in possession of the documents.  Claimant cannot know what ICBC has in its file or depose whether or not certain documents were created for the dominant purpose of litigation.  ICBC did not resist production of its entire file.  Assertion of litigation privilege does not prevent disclosure. 
 
However, Respondent must still demonstrate documents sought relate to a material fact.  Respondent had been provided copies of ICBC cheques for advances on wage loss claim, and Insurance Claim application form. Claimant was willing to provide respondent with all documentation provided to ICBC with respect to his wage loss claim.  Respondent did not identify what other specific documents might assist in proving or disproving the claimant’s capacity to earn income.  The court should not be left to speculate on what other possibly relevant information might be contained in the file.  Respondent was embarking on a fishing expedition in her pursuit of the entire file.  Application for ICBC file dismissed.

Re medical records, no basis demonstrated by pleadings or evidence to require production of records prior to January 1, 2009.