5.13: Obtaining records from others
5.2: When something is relevant and material

Case Summary

The Appellant brought a defamation claim against the Respondent arising out of an alleged incident between the Parties. Because the Appellant was a Student-at-law at the time of the alleged incident, the matter was investigated by the Law Society and a report was prepared. Here, the Appellant appealed a Case Management Judge’s Order for the production of excerpts of the Law Society report in the defamation Action.

The Application for production of the Law Society report was brought under Rule 5.13, which addresses third-party production. The Court may order a third party to produce a record if the record is under control of that person, there is a reason to believe that the record is relevant and material, and the person who has control of the record might be required to produce it at Trial. The test for relevance and materiality is governed by Rule 5.2, both in general and under Rule 5.13.

The Appellant argued that the Case Management Judge applied the wrong legal test by considering whether the Law Society report was “potentially relevant” rather than simply “relevant and material”. The Appellant also raised concerns with respect to prejudice, privacy interests, and inefficiencies being introduced into the litigation.

The Court found it clear that the Case Management Judge was alive to the proper requirements regarding relevance, materiality, and privilege. The Court did not agree that the use of the words “potentially relevant” meant that the wrong legal test was applied. The Court found no error in the Case Management Judge’s Decision given the content of the Law Society report and the scope of the Pleadings in the defamation Action.

Based on that analysis, the Court dismissed the Appeal.

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