Citation: L.M. Harding Medical Supplies Ltd. v. Patriquen, 2005 NSCA 48
Date: 20050330
Docket: CA 231987
Registry: Halifax
Between:
L. M. Harding Medical Supplies Limited and
Christopher W. McCormick
Appellants
v.
Michael Ronald Patriquen
Respondent
Judge(s): MacDonald, C.J.N.S.; Freeman and Bateman, JJ.A.
Appeal Heard: March 15, 2005, in Halifax, Nova Scotia
Held: Appeal allowed with costs on the appeal to the appellant, plus disbursements, per reasons for judgment of MacDonald, C.J.N.S.; Freeman and Bateman, JJ.A.
Counsel: Patricia Mitchell, for the appellants
Mark S. Raftus, for the respondent
Reasons for judgment:
[1] This interlocutory appeal involves a chambers judge’s refusal to direct the respondent-plaintiff to produce certain documents in his control. At the conclusion of the hearing, we granted leave to appeal, allowed the appeal, and directed production of the subject documents, with reasons to follow. Here are those reasons.
BACKGROUND
[2] In the main action, the respondent sued the appellants for injuries he sustained in a motor vehicle collision involving the appellants. The claim appears to be a significant one with the respondent asserting that the accident has caused him pain so severe that conventional treatment has been unhelpful. He therefore turned to marijuana for relief. In fact, since the accident he has been authorized by Health Canada to grow and use marijuana for this limited purpose. He has included the cost of growing this drug in his special damage claim. This led to the document issue facing the chambers judge.
[3] Specifically, both before and briefly after the accident (but prior to his Health Canada authorization), the respondent was the subject of an R.C.M.P. investigation relative to his alleged production and use of marijuana. This resulted in him being charged with possessing and conspiring to possess marijuana for the purpose of trafficking.
[4] The Crown, as part of its disclosure obligations in the criminal proceeding, provided the respondent with seven boxes of documents representing the fruits of their investigation. These documents included results of the R.C.M.P.’s surveillance of the respondent’s alleged “operation.”
[5] In the case before us, appellants’ counsel demanded production of this material pursuant to Civil Procedure Rules 18.11 and 20.01. The respondent, while initially agreeing, ultimately refused to produce the material. Although the appellant was prepared to underwrite the cost of reproducing the material, the respondent objected to disclosure, in part because it would take a substantial amount of counsel’s time to review and, if necessary, edit the material prior to releasing it to the appellants. This prompted the appellant to make the subject chambers application.
THE CHAMBERS JUDGE’S DECISION
[6] The application was made to Nova Scotia Supreme Court Justice Gerald R. P. Moir. The chambers judge found that “there would be a semblance of relevancy to at least some of the documents in the seven boxes of Crown disclosure.” He identified three areas where the documentation might provide insight; namely, the respondent’s cost of growing the product; secondly, his pre-accident use of the drug compared to his post-accident use; and, lastly, his post-accident physical capabilities. However, the chambers judge remained concerned about the sheer volume of this documentation and that respondent’s counsel would have to vet it all before determining what would be released. He therefore sought a more efficient solution.
[7] In the end, the chambers judge concluded that the appellants should look elsewhere for some of this information before taxing respondent’s counsel with this editing task. Specifically, he identified the respondent’s lengthy preliminary inquiry record as a potential public source for much of this same information. Only then would he consider directing the respondent to produce the relevant documents. The chambers judge expressed it this way:
... An order for production which would, in effect, require Mr. Patriquen to consent to the Crown disclosing to him a second time would put him, through his counsel, under a tremendous burden and obligation to go through numerous documents with a fuzzy notion as to what might or might not be relevant or at least an undefined and unfocused question as to what might be relevant or what might not be relevant. ... and I think it's a huge undertaking to put on his table and one that I would be disinclined to do if there's a way of making this more focused and less onerous, and there is. The Defendant needs, in my opinion, to advance its investigation further before asking that the Plaintiff undergo this kind of onerous task. The Defendant has at its disposal the public record of the preliminary hearing to which the Crown disclosures relate. It can read not only what was recorded through the Crown disclosures, it can read through the evidence of police officers and so on and garner from them relevant evidence that might be duplicative of what's in the boxes, but would also be – would also provide further information on what's to be found in the boxes. The Defendant, in my view, should before asking the Court to put the Plaintiff under the kind of onerous obligation that this would involve review the preliminary discovery transcript, study it, study the preliminary transcript exhibits, and present through that effort a more focused representation as to what may be relevant in the Crown disclosure. ...
[8] The chambers judge then dismissed the application without prejudice to the appellants’ right to re-apply once the alternative suggestions were followed.
ANALYSIS
[9] Interlocutory orders of this nature should only be overturned if the chambers judge applied wrong principles of law or a patent injustice would result. See Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143 at p. 145.
[10] Respectfully, I believe the chambers judge erred by not ordering the requested production. In reaching this conclusion, I fully appreciate his attempt to have the process more efficient and less costly for the respondent. Yet, respectfully, forcing the appellants to review the preliminary inquiry record does nothing to advance this goal. Regardless of what alternate searches the appellants may make, the inevitable conclusion is that this Crown disclosure package would still have to be reviewed and, possibly, edited by respondent’s counsel. In other words the Crown disclosure package is the product of the entire police investigation. The documents produced at the preliminary inquiry would be a mere subset of this. There may be highly relevant documents to the civil actions contained in the disclosure package that were not produced at the preliminary inquiry. The only way to find out what the disclosure package contains is to review it.
[11] In civil cases our courts have endorsed a broad and liberal approach to disclosure. Directing the appellant to search elsewhere for documents that are already in the respondent’s control is, at least in the circumstances of this case, contrary to this legal principle. Furthermore, to deny the appellants access to this relevant information, or even to force the appellants to review a lengthy preliminary inquiry record before granting such production, represents a patent injustice in these circumstances.
[12] In his decision, the chambers judge was prepared to reconsider this request after the appellants “advanced its investigation further.” Since I have concluded that this “investigation” was unnecessary, I would order production of the subject documentation by directing the respondent to file a supplementary list of documents in form 20.01A within six months, or such other process as the parties may agree upon.
DISPOSITION
[13] I would grant leave to appeal, allow the appeal and order production of the subject documentation in the manner described above. I would further order costs on the appeal to the appellant in the amount of $1,000.00 plus reasonable disbursements to be taxed or agreed upon.
MacDonald, C.J.N.S.
Concurred in:
Freeman, J.A.
Bateman, J.A.