The Applicant applied to compel the Respondent to answer certain questions and Undertakings which the Respondent objected to during Questioning (the “Questioning”). The Court reviewed how relevance and materiality are determined and noted that per Rule 5.1(1), the information disclosure Rules are intended to encourage early disclosure of facts and records so that both the parties and the Court have the evidence needed to expeditiously resolve the dispute. Further, the Court set out that litigants are required to answer questions that are both relevant and material, for which no valid objection has been raised per Rule 5.25(1) and (4).

The Court reviewed Rule 5.2 and set out the following with respect to relevance and materiality: (1) relevance is primarily determined by the Pleadings; (2) the Pleadings determine the issues, and relevance must be determined in relation to the issues; (3) Courts must look at the Pleadings when determining whether a particular piece of information is relevant; (4) materiality is determined by whether the information in question can significantly help to prove a fact in issue, either directly or indirectly; there is no fixed standard of what is “material”, so an element of judgment is required to determine whether a particular piece of information is material;  and (5) the less amenable a fact is to direct proof, the wider the circle of materiality.

The Court additionally noted that the Court of Appeal had found that the three-part analytic scheme proffered by the Respondent as not being helpful. It delineated: primary evidence (facts directly in issue) and secondary evidence (facts from which the existence of primary evidence may be inferred) as being compelled to be disclosed and tertiary evidence (facts that may lead to secondary evidence) as not being compelled to be disclosed. The Court noted that tertiary evidence does not by itself, render the fact immaterial and irrelevant under Rule 5.25.

The Court further noted that the disclosure Rules are intended to prevent abusive, vexatious, overly burdensome, and/or disproportionately expensive disclosures and limit the ability of a party to engage in an overly long discovery process that delays the resolution of the underlying dispute pursuant to Rule 5.3(1). The Court additionally noted that disclosure is not required “just because some remote and unlikely line of analysis can be advanced” and lines of discovery that are unrealistic, speculative, or without an air of reality” can be rejected. The Court specified that a party seeking to compel disclosure must show some reason why the fact at issue could reasonably be expected to help determine one or more issues.

The Court additionally specified: that at the production stage of litigation, the Court should not measure the parties’ proposed line of argument “too finely”; the Rules are intended to prevent abusive and/or excessive discovery processes and not to cut off legitimate lines of inquiry; and the party seeking disclosure does not need to prove conclusively that the information will be of any assistance to them.

The Court reviewed the Undertakings and objections from the Questioning and made individual determinations, with respect to each.