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Is It Relevant and Material?
It has long been a principle of our justice system that each party to a court action is entitled to know the other party's case before trial in order that all of the facts necessary for the Judge to make a decision may be in front of the court.
In civil litigation, that principle is reflected in the Rules of Court which require the production of documents and the examination for discovery of the adverse party. In Alberta before November 1, 1999, the Rules of Court stated that a party was required to discover all documents "relating to all matters or questions in the cause".
This had been interpreted to mean that anything "touching upon" an issue could be discovered. As a consequence, defendants grasping for any sort of defence and eager to postpone the day of judgment would go on "fishing expeditions" to try to find some matters or some facts which would adversely affect the other party. This has resulted in long and expensive examinations for discovery, as well as extensive motions before the court for the production of more and more documents.
Over the last few years, some judges have been reluctant to order the discovery of documents which contained confidential information unless it was shown that such documents were relevant and material to the matters in issue, not just "touching" upon the issue. This was especially so in the case of personal medical records, but was also found in commercial litigation.
For example, in a recent decision the court refused to order that Alberta Treasury Branches produce some of its records to Pocklington Financial Corporation, because the judge was not satisfied that the requested records were relevant and material to the issues in question.
Effective November 1, 1999, the Rules of Court have been changed and now provide that the only records which need to be produced by a party are those which are "relevant and material" to the matters in issue.
The Rules have also been amended to provide that an Affidavit of Records must be produced to the other party within 90 days after the filing of the Statement of Defence. An order of the court must be obtained to produce the Affidavit of Records after the 90-day period, and the Rules provide that the late party will be penalized costs payable forthwith to the other party.
Hopefully the new Rules will have their desired effect of reducing the time and expense of pretrial proceedings and bringing disputes to faster resolution or trial.