For the litigant seeking production, in addition to having to decide whether the cost of seeking production is worth the risk, a further potential difficulty posed by the shift in onus is that the party may not even be aware of the existence of the documents or classes of documents, let alone being in a position to identify them with reasonable specificity. Let us consider two litigation fact scenarios:
- Estate case – undue influence / testamentary capacity – Liability
- Breach of confidence
Scenario 1: Estate case – undue influence / testamentary capacity – Liability
Consider an estate case involving allegations of undue influence and lack of testamentary capacity. Anyone who had significant exposure to the deceased during the relevant time period may be an important witness at trial. The identities of those witnesses may be found on many documents other than the obvious, including family letters, emails, party invitations, paper or electronic diaries, or a hundred other kinds of documents.
Under current Rule 26, counsel for the executor acting in accordance with their duty will have explored with the client the existence of such documents and caused them to be produced if they contained the names or other information leading to the identification of such witnesses. Under new Rule 7-1 there will be no such assurance, since defense counsel’s job will, in my view, be limited to questioning the client on the existence of documents which “could be used at trial to prove or disprove a material fact”, excluding documents which may lead to a “train of enquiry”.
Scenario 2: Breach of confidence
This scenario is a variation on the facts in Lac Minerals v International Corona Resources Ltd.  2 S.C.R. 574. Company A approaches company B with confidential information on a mining property, with a view to striking a collaborative business agreement. No deal is struck, and B uses the confidential information for its own benefit.
In this case, the relevant facts will include details of the “pitch” made by A; the nature and extent of information provided to B; any conditions on the use of the information applied by A when making its pitch; and the circumstances under which B received the information.
After receiving the information, B met with a number of prospective geological engineering firms to act as B’s consultant. During these meetings, B advised the firms of the approach by A.
In this author’s view, under current Rule 26, B would be required to produce:
- faxes or emails sent to the prospective consultants inviting them to meet.
- interoffice memos among B’s representatives referencing these meetings.
Under new rule 7-1(1) (Step 1), production of these documents would not likely be required as they could not by themselves “be used by any party of record at trial to prove or disprove a material fact”. It is not the documents, but the meetings to which they refer, which provide evidence which at trial may be used “to prove a material fact”. However, their production could lead A’s counsel to question or subpoena the consultants’ representatives whose evidence as to what was told to them by B could be critical in proving A’s case.
Without production under Rule 7-1(1), A’s counsel would not likely have any idea of the existence of these documents and, accordingly, would not have a documentary basis upon which to ask questions relating to the meetings which occurred. Given the limits placed by the new rules on the amount of time that may be taken for examinations for discovery, that constraint, working with the document discovery constraints, may eliminate discovery of relevant evidence. Accordingly, the opportunity of the party receiving production under subrule 7-1(11) to “require” production of a supplemental list will be of little value, as it won’t be in a position to issue any “demand that identifies the additional documents or classes of documents with reasonable specificity and that indicates the reason why such additional documents or classes of documents should be disclosed”.