master robertson

1.2: Purpose and intention of these rules
5.2: When something is relevant and material
5.33: Confidentiality and use of information
5.5: When affidavit of records must be served
5.6: Form and contents of affidavit of records
13.25: Use of filed affidavits

Case Summary

The Plaintiffs in an oppression action sought directions as to what was relevant and material for the purposes of record production and answering Undertakings. The Plaintiff sought production of various corporate records which the Defendant claimed were confidential business records. Only the Corporate Defendant had produced and served an Affidavit of Records. Master Robertson held that this did not satisfy Rule 5.5 which requires each party to provide their own Affidavit of Records. Further, Rule 5.6 provides that each party must disclose which records were previously under their control.

With regard to whether a question, record or information is relevant and material under Rule 5.2, Master Robertson stated the starting point is to look at the Pleadings considered in their entirety. The allegation must not only be raised in the Pleadings but also supported by some evidence that demonstrates some underlying factual foundation on which the allegation is based. The Defendant asserted that, because the Plaintiffs filed no evidence in support of this Application, they could not meet their evidentiary burden. Master Robertson held, however, that Rule 13.25 provides that any Affidavit may be used on an Application and that the transcript of a cross-examination on it may also be used. It was therefore proper for the Plaintiff to rely on the Defendant’s Affidavit filed in support of its Summary Judgment Application for the purposes of the Application. It would be inconstant with Rule 1.2(1)(b) for an Applicant to have to file an Affidavit if the evidence is already before the Court.

With respect to the Defendant’s assertion that the records which the Plaintiff sought were confidential business documents, Master Robertson held that claims to confidentiality are irrelevant to considering whether records or information are relevant and material for the purposes of Rule 5.2. Relevance and materiality involve concerns as to probative value, not confidentiality. In any event, confidentiality is not lost by production because of the operation of Rule 5.33 which states that records revealed in litigation are to be kept in confidence. The individual Defendants were each ordered to produce their own Affidavit of Records and the records sought by the Plaintiff were ordered to be produced.

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