Back To Law Matters | Summer 2015

Practice Pointers

Fishing Expeditions and Other Flights of Fancy: Document Production Overhaul in Alberta

With two recent Court of Appeal decisions on the topic, the law on document production in Alberta appears to be evolving. Lawyers should take heed and ensure that their strategy evolves alongside it. 

The document disclosure and production process can be a long, arduous part of any litigation. While previous rules in Alberta allowed discovery of anything “touching the matters” in issue1, the current Alberta Rules of Court provide that litigants must disclose all documents that are “relevant and material” – arguably, a more narrow test:2

5.2 (1) For the purposes of this Part, a question, record or information is relevant and material only if the answer to the question, or the record or information, could reasonably be expected 

  1. to significantly help determine one or more of the issues raised in the pleadings, or
  2. to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings. 

Relevance is determined with reference to the pleadings, whereas materiality is primarily a question of proof. Facts in issue that are not able to be proven directly will result in an expanded circle of materiality.3   

The purpose of limiting discovery to those records that are relevant and material is to prevent abuse of process, excessive demands, and unreasonable litigation costs.4 However, litigation counsel routinely experience (and perhaps, expect) delay, frustration and long and drawn out disputes associated with the document disclosure and production process. 

The Alberta Court of Appeal addressed these issues in its decision in Kaddoura v Hanson (“Kaddoura”), released on May 6, 2015. In this case, straw buyers in a mortgage fraud litigation brought a third party claim against the real estate lawyers involved, alleging that they knew, or ought to have known, that the underlying real estate transactions were not legitimate. They sought production of client files in the lawyers’ office relating to similar transactions, hoping to find circumstantial evidence to support their claim.5 The court upheld the Master’s order directing disclosure of the client files but not their production. In doing so, the unanimous court effectively did away with several common arguments regularly advanced under the Rules of Court by parties wanting to avoid complete disclosure, including the following:  

  1. The “Fishing Expedition” Argument: The right to disclosure of records does not depend on the other litigant proving that those records exist. The onus is on each party to review its own records and disclose those that are relevant and material. According to the Court of Appeal, “[w]hen it comes to record disclosure, if there are fish, the respondents do not have to go fishing for them.”6
  2. The “Secondary or Tertiary Evidence” Argument: While always problematic due to the difficulty of defining what should be characterized as “secondary” or “tertiary” evidence, the Court of Appeal has now rejected this argument outright. The categorization of evidence as secondary or tertiary is of little value as these records may nevertheless help determine the issues, especially where facts may be proven using inferences and circumstantial evidence.7
  3. The “They Already Know the Answer” Argument: One of the purposes of discovery is to narrow and define the issues between the parties.8 The argument that the other litigant “already knows the answer” overlooks the legitimate role of questioning in getting the other party to admit the facts.9
  4. The “Other Methods” Argument: According to the Court of Appeal, the discovery process set out in the rules is intended to be efficient, structured and comprehensive. The fact that there are other possible avenues for the litigant to obtain the information does not relieve the obligation of the other party to produce it. In Kaddoura, the Court of Appeal rejected the argument that some of the information sought may have been on file at the Land Titles office and therefore should not have to be disclosed.10

With these common arguments now bound to fail, counsel should re-visit Rule 5.2 itself  and the intention behind it. Thankfully, document production is not without limits. As stated by the Alberta Court of Appeal in Dow Chemical Canada ULC v Nova Chemical Corporation (“Dow”), the production of records is not required “just because some remote and unlikely line of analysis can be advanced… [Judges are] fully entitled to reject lines of pretrial discovery that are unrealistic, speculative, or without an air of reality…or where the expense involved is disproportionate to the likely benefits that will result.”11  By getting rid of old fallback arguments and clarifying the law on document production in Alberta, the decisions in Dow and Kaddoura may help curtail delay tactics and advance the expeditious resolution of disputes.

With thanks to Catherine Hamill of Osler LLP for her able assistance.

  1. Dow Chemical Canada ULC v Nova Chemicals Corporations, 2014 ABCA 244, at para 19 [Dow].
  2. Alta Reg 124/2010, r 5.2, 5.6(1)(b) and 5.25(1)(a) [Rules of Court].
  3. Weatherill (Estate of) v Weatherill, 2003 ABQB 69, at paras 16-17.
  4. Ibid at paras 11 and 14. 
  5. Kaddoura v Hanson, 2015 ABCA 154 at para 5 [Kaddoura].
  6. Ibid at para 17. 
  7. Ibid at para 15.
  8. Rules of Court, supra note 2, r 5.1(1)(b). 
  9. Ibid at para 16. 
  10. Ibid at para 18. 
  11. Dow, supra note 1 at paras 19 and 21.