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CIVIL PROCEDURE - Discovery - Scope - Production by non-parties

Tuesday, June 01, 2021 @ 6:12 AM  


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Appeal by the defendants from a case management order for production of documents in the possession of the RCMP. In 2014, police executed a search warrant during a criminal investigation into the Caspian defendants in respect of their involvement in a police headquarters construction project. In 2019, the Crown determined it would not authorize criminal charges related to the investigation. In 2020, the plaintiff commenced litigation alleging large-scale fraud in respect of the construction project. The plaintiffs obtained a production order for 46 boxes of documents and data obtained from mirroring hard drives and servers seized by the RCMP during the search. The defendants took the position that s. 490(15) of the Criminal Code precluded production, as the RCMP was no longer lawfully in possession of the documents, as the detention period had expired. The case management judge ordered production. The judge found that s. 490(12) contemplated the plaintiff’s assertion of a legal interest in the documents by way of s. 490(15). The defendants appealed and sought an order for the return of the documents.

HELD: Appeal dismissed. There was no authority for the defendants’ position that Rule 30.10 imported a requirement of lawful possession by the non-party in control of the documents sought for production in a civil matter. In any event, the RCMP was required to continue its possession of the documents under ss. 489.1 and 490 of the Code post-expiration of the detention period until a valid court order for their disposition. At the time of the plaintiff’s application for production, there was no court order in effect requiring or authorizing the release of the documents by the RCMP. The defendants’ statement of intent before the case management judge to bring an application for return did not constitute a formal application for their return under s. 490(7). It followed that the ongoing possession of the documents by the RCMP was authorized by law and therefore was not unlawful. No error occurred in granting production or in assessing relevancy in the context of efficiency, proportionality and the timelines within complex litigation.

Winnipeg (City) v. Caspian Projects Inc., [2021] M.J. No. 88, Manitoba Court of Appeal, F.M. Steel, H.C. Beard and D.M. Cameron JJ.A., April 7, 2021. Digest No. TLD-May312021004