The dispute arose in the context of ongoing litigation involving business and personal conflicts, multiple lawsuits, and an unsuccessful criminal prosecution against the Applicant. The Applicant sought to have certain portions of the transcript from his own Questioning, along with related documents referenced by the Respondent, struck from the record, arguing they had not been previously disclosed in the Respondent’s Affidavit of Records (“AOR”). In support of this request, the Applicant relied on Rule 5.16, which prohibits the late disclosure of relevant and material records not initially included in an AOR, and referred to Justice Mah’s prior Decision that interpreted and applied this Rule in the proceedings. The Respondent contended that Justice Mah’s case management order (the “Order”), which directed all Parties to submit further and better AORs, effectively permitted the inclusion of the disputed documents.

Justice Mah explained that the case management process aimed to finalize pleadings and evidentiary records for the upcoming Summary Dismissal Applications. The Order required all Parties to disclose records from multiple civil and criminal matters through updated AORs, to address previous deficiencies in disclosure. Justice Mah confirmed that the Order relieved the Parties of their obligations under Rules 5.32 and 5.33, which restrict the use of civil disclosure, to ensure fairness and prevent procedural surprises. Justice Mah noted that both the factual context and intent of the Parties supported the inclusion of additional documents from other matters, as they were deemed relevant to resolving the dispute.

Additionally, Justice Mah highlighted that the Applicant sought contradictory forms of relief in the same Notice of Application, namely, both an expansion and a reduction of the AOR, even though some of the documents he objected to had been requested in the Notice of Application.

Justice Mah emphasized that the prior ruling cited by the Applicant, which had interpreted Rule 5.16, was based on different facts and circumstances, particularly the absence of the Order at that time. It was noted that, had the Order been in effect, the previously excluded records might have been allowed. Justice Mah stated that since the Order required all Parties to submit new AORs, Rule 5.16 could not be invoked until the new AORs were provided, as no unfairness would arise unless a party later attempted to rely on a record not disclosed in the updated AOR.

As a result, Justice Mah denied the Applicant’s request to strike the documents and Questioning from the record.