In the context of litigation related to allegations of abuse during childhood foster care, the Plaintiff applied for the production of certain records. Under Rule 5.11, which permits the Court to order the production of relevant and material records where such records have been omitted from an Affidavit of Records, the Plaintiff sought: (1) the names and last-known contact information of other children who were placed in the same foster home; and (2) the complete, unredacted childcare file relating to a child who had made similar allegations.

The Court considered the framework for the disclosure of records under both the Rules and the Child, Youth and Family Enhancement Act, RSA 2000, c C-12 (the “CYFEA”). The Court stated that disclosure in this context was governed by the CYFEA, but its analysis was also informed by the Rules.

Under section 126.11(8)(c) of the CYFEA, the Court must consider the rights of the Parties to a fair hearing in making a determination on disclosure. The Court considered Rule 5.33, which requires that records disclosed in litigation be treated as confidential and used only in the Action in which they are produced. The Court weighed this requirement against the potential harm to the dignity and rights to privacy of the persons affected by the potential disclosure. The Court held that the Plaintiff’s right to a fair hearing was an important consideration to be taken into account.

The Court also considered whether the records sought were relevant, material, and likely to advance the Plaintiff’s position as set out under Rule 5.2, and which is an overlapping consideration under the CYFEA.

The Court stated that relevance is primarily determined by the issues raised in the Pleadings, while materiality relates to whether the information sought can help, directly or indirectly, to prove a fact in issue in the dispute. The Court held that the Plaintiff had not demonstrated that the records sought were relevant and material. Rather, the records sought would simply assist the Plaintiff in contacting the other children, which might possibly result in relevant and material information later being obtained.

The Court ultimately dismissed the Plaintiff’s Application with respect to the majority of records sought, but held that a number of the records sought should be provided to the Court for further review as set out under the CYFEA.