The Defendants in this Action brought applications for Summary Judgment. At issue was whether certain identified documents and evidence from other proceedings could be relied upon by the parties in the Summary Judgment Applications. The other proceedings involved an investigation and report regarding certain aspects of the business and financial affairs of two businesses affiliated with the Defendants.

Gill J. analyzed the evidentiary issue in two parts:

1.         Pursuant to Rule 5.2, were the documents and evidence relevant and material to the Summary Judgment Applications?

2.         Was it necessary for reasons of fairness and justice that the documents and evidence be available for the parties?

The principles for relevance and materiality under Rule 5.2 remain those that were applicable under former Rule 265:

-          The parties’ pleadings are the basis for determining relevance and materiality;

-          Discovery of records is now confined to eliciting facts of primary relevance (facts directly in issue), or of secondary relevance (facts from which the existence of the primary facts may be directly inferred);

-          Records must be material, in that they must be reasonably expected to significantly help determine one or more of the issues raised in the pleadings;

-          Relevance is determined by the pleadings, while materiality is more a matter of proof; and

-          At an interlocutory stage of proceedings, it is sufficient if counsel can disclose a rational strategy in which the disputed documents play a material part.

Considering these principles, Gill J. held that documents and evidence in question were relevant and material to the issues raised in the pleadings and in the Summary Judgment Applications. Gill J. held that the documents and evidence were so clearly relevant and material that it may be impossible to have a proper adjudication without them, and thus they were necessary to achieve fairness and justice. As such, the documents and evidence from the other proceedings were permitted to be relied upon by the parties.