5.2: When something is relevant and material
6.8: Questioning witness before hearing

Case Summary

The Plaintiff contracted Woodparke Homes Ltd. (“Woodparke”) to build a custom home. While the Plaintiff’s home was completed in 2014, the Plaintiff alleged that significant defects rendered the house uninhabitable. The Plaintiff applied to compel Woodparke and its principal, Mr. McAvoy, to produce various financial documents. The Defendants cross-applied to compel the Plaintiff to produce documents provided to the Plaintiff by third parties to whom the Plaintiff had issued Appointments for Examination under Rule 6.8, and documents relating to a third party with which the Plaintiff had settled.

Hollins J. set out the legal test for a document to be producible under Rule 5.2(1). A record will be relevant and material, and thus producible, if it can reasonably be expected to significantly help determine issues raised in the pleadings or ascertain evidence to do so. The Court stated that relevance is primarily determined by the pleadings while materiality is a measure of the likelihood that a record will help to resolve the case or lead directly to other evidence that will do so.

Justice Hollins then considered the records that the Plaintiff requested. The Plaintiff alleged that Mr. McAvoy misapplied or misappropriated money between the Plaintiff’s home and Mr. McAvoy’s home, which Mr. McAvoy was constructing at the same time. Thus, the Court determined that records relating to the construction of the Plaintiff’s home and certain records relating to Mr. McAvoy’s home were producible. However, Justice Hollins held that general financial information of Woodparke need not be disclosed.

The Plaintiff had also requested broad information relating to Woodparke’s employees. Justice Hollins determined that this information should be produced for employees who were paid based on the number of hours they worked on the Plaintiff’s home between 2010 and 2014. The Court held that the relevance of employee information for salaried employees would have to be proved in Questioning. The Court also reduced the timeframe for the Plaintiff’s request for records to the period between 2010 and 2014.

The Court denied the Defendants’ Rule 6.8 request to compel the Plaintiff to produce documents relating to third parties. Justice Hollins stated that it was unclear what non-party documents the Defendants were seeking. In addition, the Court stated that it was unclear how documents relating to the Plaintiff settling with third parties would assist Woodparke in preparing for Trial.

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