Case Report – BCCA rejects request to postpone production to aid a test of credibility

On November 19th, the British Columbia Court of Appeal dismissed a defendant’s motion to postpone the production of a non-privileged video surveillance tape so it could better test the plaintiff’s credibility in oral discovery.

The dispute was about the discretion to order relief from production that is granted expressly by Rule 26(1.2) of the British Columbia Supreme Court Rules. The essence of the Court of Appeal’s decision is captured in the following excerpt:

In my view, it is the extensive scope of this common law disclosure rule that created the need for reasonable limitations.  Stated in another way, it is the “slavish” application of R. 26(1) which informs the scope of R. 26 (1.2). 

The appellants seek to distinguish these decisions under R. 26(1.2) on the basis that they do not involve a key issue of credibility. They submit that, in this case, an order postponing the production of the surveillance videotapes would give them the opportunity to test the willingness of the respondent to lie about her claim.  They argue that, in the absence of such an order, the respondent might tailor her evidence to fit the scenario depicted in the videotape. 

With respect, I do not accept this argument as representing a valid purpose for an application of R. 26(1.2).  In this case, there has been no factual determination regarding the respondent’s truthfulness, or lack thereof.  This is the appellants’ theory of liability, and it is for them to establish in the course of the trial.  Nor am I persuaded that the Rules of Court were intended to be used in a manner that would displace a right of a party granted under them, in favour of creating an opportunity for an adverse party to advance their theory of a fact in issue.

This excerpt followed a detailed lead-in on how Rule 26(1.2) has been applied to protect privacy (by allowing for the redaction of non-relevant and sensitive information) and to encourage proportionality in production. The only other jurisdiction with a comparable provision is the Federal Court (see section 230 of the Federal Court Rules).

Stephen v. McGillivray, 2008 BCCA 472.

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