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DISCOVERY - Production and inspection of documents - Pretrial procedures

Monday, April 06, 2020 @ 9:44 AM  


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Appeal by the plaintiff from an order granting the respondents’ motion and requiring her to produce her detailed financial and banking records. The order was issued five days before the scheduled commencement of a three-week civil jury trial for assessment of damages for personal injuries suffered in a motor vehicle accident. The respondents did not seek leave to bring the motion for production. Upon hearing the motion for production, the trial judge adjourned the trial. The trial judge treated the lack of request for leave as an oversight by counsel and the competing cross-motion for production brought by the appellant as consent to proceed and then proceeded to hear and decide the motions.

HELD: Appeal allowed. The respondents’ motion for production was dismissed. The order for production appealed from was not properly made. There was no request under Rule 48.06(b) for leave of the court, and leave was not judicially granted. A process error occurred because the leave requirement was passed over and was not evaluated and determined upon consideration of applicable criteria for leave where an action was set down for trial. The purpose of the requirement was not taken into account by the motion judge. Considering the information sought, previous productions, previous knowledge and opportunity to obtain the kind of information now sought, and the timing of the motion in very close proximity to the set trial date, leave should not be granted. The respondents did not satisfy the test for leave of demonstrating that there had been a substantial or unexpected change of circumstances since the matter was listed for trial such that it would be manifestly unjust to prevent resumption of interlocutory proceedings.

Fraser v. Runighan, [2020] P.E.I.J. No. 6, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., February 14, 2020. Digest No. TLD-April62020001