The Appellants, the Office of the Child and Youth Advocate (“OCYA”) and Ms. Pelton (the current Child and Youth Advocate), appealed a Decision by a Chambers Judge to compel the production of records from OCYA and to compel Ms. Pelton to attend for Questioning.

The Court of Appeal found that the Chambers Judge erred by ordering document production and Questioning of Ms. Pelton without the requirements of Rules 5.13 or 5.17 being satisfied.

The Court of Appeal noted that an Applicant under Rule 5.13 must demonstrate that the requested records exist, are under the control of the non-party, are relevant and material, and cannot be obtained from a party. Here, the Respondents failed to establish that all the requested records exist, nor did they establish that either of the Appellants had control over any of the records sought. Additionally, rather than requesting records from the non-party Appellants, the Respondents could have obtained the records they requested from the Defendant. The Defendant would be required to disclose the records or identify “the time when, and the manner in which, those records ceased to be under” their control and specify the “present location of the records, if known” under Rules 5.6(1)(b) and 5.6(2)(d).

The Court of Appeal further determined that the Respondents failed to meet the two-part test under Rule 5.17(1)(d), which governs the ability to compel Questioning of a party’s former employee. Although the Respondents established that Ms. Pelton was a former employee of the Defendant, the biography relied upon by the Respondents did not support an inference that Ms. Pelton had, or appeared to have, relevant and material information acquired due to her employment with the Defendant.

Based on the above, the Appeal was allowed.