BAGLEY v ROGERS

The Court considered an Application for production of the personnel file and disciplinary records (the "Requested Records") of the Defendant police officer (the "Officer").

The Defendants argued that the Requested Records were similar fact evidence and thus not producible. Justice Feasby rejected that argument, noting that, whether a record is similar fact evidence is a question of admissibility for Trial and has no bearing on whether the record is producible. The Court referred to Rule 5.6 for the requirement that records relevant and material to the Action be disclosed. Reviewing the applicable case law, Justice Feasby explained that a record that is producible under Rule 5.6 can also be inadmissible as similar fact evidence. The Court pointed to Rule 5.2(2) as confirmation that production of a record is not an agreement or acknowledgement that the record is admissible.

The Court declined to order production of the Requested Records on the grounds that the Defendants' counsel had not yet had an opportunity to review them. Justice Feasby concluded that counsel must determine if records are relevant and material before the Court will consider whether to order production. The Court ordered that counsel for the Defendants should review the Requested Records within 30 days to ascertain their relevance and materiality and produce the Requested Records forthwith, if they were relevant and material.