5.1: Purpose of this Part (Disclosure of Information)
5.11: Order for record to be produced
5.2: When something is relevant and material
5.30: Undertakings

Case Summary

The Plaintiff commenced an Action against the Defendant insurer for refusing to pay long term disability benefits. The Defendant appealed the Decision of a Chambers Judge that required the Defendant to produce a document sought in Questioning by the Plaintiff. The document was an index to reference materials that was given by the Defendant insurer to its adjusters for use as an aid in disposing of claims. The Majority of the Court of Appeal held that the Chambers Judge erred in ordering the Defendant to produce the document without having first made a determination that it was relevant and material under Rule 5.2(1). The Court ordered that the Plaintiff arrange for a Special Chambers hearing and that the Defendant provide both the Plaintiff and the Court with a copy of the index, so the relevance and materiality of the document could be determined.

O’Ferrall J.A., in dissent, noted that, without producing the index, it was impossible for the Chambers Judge to determine its relevance or materiality; therefore, the index needed to be produced if only to determine the issue of relevance. O’Ferrall J.A. stated that, while the Court must ultimately be satisfied that the document was relevant and material on an Application for a document to be produced, Rule 5.11(2)(a) is clear that the Court may inspect the record in order to make such a determination. Additionally, if there was no claim of privilege, the Chambers Judge was fully entitled to direct that the document be produced so that the party seeking the document might be able to make submissions on relevance and materiality. Rule 5.1(2) authorized the Court to give directions or make any Order required to achieve the purposes of Part 5, which were to obtain evidence, encourage disclosure of records, facilitate the evaluation of the parties’ positions, resolve issues in dispute and discourage conduct which delayed proceedings or increases costs. O’Ferrall J.A. noted that the Defendant failed to respond to the Undertaking to produce the index “within a reasonable period of time” pursuant to Rule 5.30. Based on this, O’Ferrall J.A. concluded that the Appeal should be dismissed and that the Plaintiff should be awarded solicitor-client Costs from the date the Defendant first refused to answer the Undertaking, despite being ordered to do so.

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