5.13: Obtaining records from others

Case Summary

In an Action relating to the division of matrimonial property, and following an Application for the Third Party corporations to produce certain records, the Plaintiff sought a determination of the amount to be paid to the third party corporations (which her husband previously had an interest in) pursuant to Rule 5.13. The Order to produce records did not speak to recovery of expenses incurred in producing the documents. One of the Third Parties, (“Ryan’s”) had invoiced the Plaintiff for the costs incurred in assembling and producing the records. The other Third Party corporations, (collectively “Janela Corporations”), consented to produce their records but advised the Plaintiff that they required payment of $28,600.00 in order to do so.

The Plaintiff argued that the Janela Corporations’ cost claim was unreasonable. In response, the Janela Corporations provided Affidavit evidence that they had incurred $18,883.28 in responding to the Consent Order and much of that amount was incurred in opposing the Plaintiff’s Application for the production of the records. The Court noted that Rule 5.13(2) was applicable, but that there was no established test to determine how much must be paid to a third party that is required to produce relevant and material records. Justice Burrows held that the purpose of Rule 5.13(2) is to compensate non-parties for reasonable expenses relating to the production of records, not the cost of opposing the Application for production of records. Justice Burrows interpreted the Consent Order as intending that neither the Plaintiff nor the Janela Corporations were required to pay Costs, and held that the cost of obtaining legal advice and opposing the Plaintiff’s Application was not compensable.

Burrows J. held that the Costs payable by the Plaintiff to the Janela Corporations was $500. In doing so, His Lordship emphasized that a significant portion of the Costs claimed by the Janela Corporations was not recoverable, that its initial claim for $28,600 was “obviously inflated”, and that the Court did not have a reliable estimate of the Costs actually incurred. The Court held that Ryan’s was not entitled to payment pursuant to Rule 5.13(2).

View CanLII Details