In a defamation Action, the Plaintiff sought disclosure of various emails between high level officials at the CBC.

Justice Tilleman reviewed recent appellate authorities as to when a document is producible under Rule 5.2. Justice Tilleman noted that relevance is primarily determined by the Pleadings, whereas materiality relates to whether the information can directly or indirectly help to prove a fact in issue. The first step is to review the Pleadings and assess whether a record is relevant, and then assess its materiality.

Tilleman J. went on to note that material records are records that would significantly help the examining party prove their case. His Lordship went on to quote Kaddoura v Hanson, 2015 ABCA 154 (CanLII) noting that when trying to establish that a record would “significantly help”, the Applicant need not demonstrate conclusively that the evidence would be of assistance; rather, they only need to show a “plausible line of argument”. A “remote and unlikely line of analysis” will not require production of a relevant record.

Justice Tilleman also noted that an initial motion Court need not determine at the production stage if a record would ultimately be admissible at Trial. The emails were ordered to be produced.