Carfra Lawton LLP | Victoria BC

Prior Action Documents to be Disclosed

In Easton v Chen, 2015 BCSC 2288, the defendant sought production of documents from four prior actions in which the plaintiff had claimed damages from motor vehicle accidents.  The defendant had received copies of such documents from ICBC, and provided copies to the plaintiff demanding that he incorporate them into an amended list of documents. The plaintiff refused.

The defendant argued that the implied undertaking of confidentiality did not apply to any document that could prove or disprove a material fact and therefore were to be produced under the Supreme Court Civil Rules. The plaintiff took the position that the defendant’s demand for production “could only be seen as a fishing expedition in an attempt to impeach the plaintiff’s credibility.”

Master Muir found that an implied undertaking of confidentiality attaches only to documents “produced by the plaintiff under the compulsion of the litigation” but not to documents submitted to or prepared by ICBC in prior actions.  The Master was also satisfied that the prior documents, discovery transcripts and expert reports from the prior actions could be used to prove or disprove material facts and were to be produced.

This decision confirms that documents from a prior civil action must be produced if they might prove or disprove a material fact in a current action.

Case law summary by: Trevor Morley