The Plaintiff commenced an Action against the Defendant following a motor vehicle collision. Among other things, the Defendant defended on the basis that the Plaintiff failed to mitigate his damages by failing to return to work in a timely and reasonable fashion. The Defendant applied under Rule 5.13 for an Order that the Plaintiff’s employers provide the Plaintiff’s employment records.

Master Mason considered Rule 5.13 which defines a number of pre-conditions that must be met for the Court to order a non-party to produce a record. First, Master Mason noted that there is no issue raised by the Plaintiff as to the records being in the control of his employers. Next, the Court considered the relevance and materiality of the records sought by the Defendant. The Court stated that Rule 5.2 defines relevance and materiality for the purpose of disclosure, and that this determination must be in the context of the particular facts and Pleadings in issue. The Court considered the current Rule 5.13(1)(b), its predecessor Rule 209 and prior leading authorities, and held that the Rule continues to recognize that relevance and materiality need not be guaranteed in order for the Court to direct non-parties to produce records. The party seeking the Order only needs to show that the Record in question may relate to a matter in issue. In this case, while there was no serious dispute about the relevance and materiality of the typical contents of some of the Records that would exist on the employers’ files, some of the Defendant’s requests were overly broad and required further submissions to determine relevance and materiality.

The Court also considered and rejected the Plaintiff’s argument that the non-party records should first go to the Plaintiff to be assessed for relevance, materiality and privilege. The Court observed that, pursuant to Rule 5.6 and case law, as long as the Plaintiff has not been and is not in control of the records, he was not required to disclose them. The Plaintiff was seeking to control the disclosure and production of records that he maintained were not in his control. It is the Court’s function to determine relevance, materiality and privilege under Rule 5.13.

The Plaintiff further opposed this Application on the basis that the records could contain privileged information. Master Mason noted that the Court should consider the Plaintiff’s objections based on privilege under Rule 5.13, and it was sometimes necessary to review the disputed documents in order to resolve this question. However, the person objecting has to provide “some cogent basis for expecting that privileged records may exist, and the basis of the claim to privilege”. In this case, the Plaintiff’s submissions did not do so in a sufficiently clear fashion, and further submissions were necessary to demonstrate the basis of the privilege claimed. Master Mason directed that the parties return at a later date to make further submissions on the remaining issues.