NSCA issues principled judgement on relevance standard for production and proportionality

On February 28th, the Nova Scotia Court of Appeal held that a motor vehicle accident plaintiff was not entitled to production of her insurer’s policy documents merely because she had alleged bad faith. It held that these documents might be relevant, but the plaintiff failed to meet an evidentiary burden to establish relevance. Justice Farrar explained:

Although the pleadings are a factor to be taken into consideration in determining whether documents are relevant, they are not the only factor.  If that were the case, adroit counsel could draft pleadings in such a manner to allow a party to embark on a fishing expedition.  This is precisely what the Rules were intended to avoid when they were amended to move from the “semblance of relevance” test to relevancy.  The motions judge’s decision, in my view, reverts to the “semblance of relevance” test.  Allegations, no matter how specifically worded or drafted, which have no basis in the facts or the evidence without more, cannot be the basis for a production application.  This is particularly true here, where there was a dearth of evidence before the motions judge.

Intact Insurance Company v. Malloy, 2020 NSCA 18 (CanLII).