Applicable Test for Non-Party Production Orders

Applicable Test for Non-Party Production Orders

August 9, 2017

Rule 30.10(1) of the Prince Edward Island Rules of Civil Procedure allows for production of documents in the possession, power or control of non-parties where the document is not privileged and a) the document is relevant to a material issue in the action and b) it would be unfair to require the moving party to proceed to trial without the documents.   The rule had never been considered by PEI courts in a written decision until the recent case of McCabe v Wawanesa Mutual Insurance Company1 [McCabe].


McCabe was injured in a motor vehicle accident, requiring her to remain in a community care facility for over two years.  The provincial government covered the expense of her stay as social assistance. McCabe alleged that the costs paid by the government were recoverable by her as Section B expenses.  As evidence of quantum, McCabe provided a letter from the facility generally stating the monthly cost. She alleged that since the cost calculated over the length of her stay exceeded Section B limits no further details or documentation were required.

Wawanesa sought production of the social assistance file from the government on the basis that it was apt to contain details of the specific expenses incurred. The material issues raised included whether the specific expenses qualified as Section B expenses. The production order was granted by the motions judge and McCabe appealed on the basis that he had failed to properly apply the relevance branch of the test. The non-party did not take a position on the motion or on appeal.

The Decision

The Court of Appeal determined that while the motions judge did fail to properly consider the relevance branch of the test, the details and breakdown of expenses were relevant to Section B claims and it would be unfair for Wawanesa to proceed to trial without the documents.

The court was careful to draw a distinction between the relevance test that applies to parties and the higher test that applies to non-parties under Rule 30.10(1). The possibility of relevance is not sufficient. The documents must be relevant, not to any matter in issue (as for parties), but to a material issue in the action (McCabe at para 21).  It will not be enough for parties seeking production of documents from a non-party to show that the documents may open additional lines of inquiry. The onus is to demonstrate that the documents are relevant to a material issue as determined by the governing substantive and procedural law and the pleadings. In McCabe, the documents were relevant to the material issue of determining whether each expense qualified as a Section B expense.

At the unfairness step of the inquiry the court adopted the factors applied in Ontario (Attorney General) v Stavro2, which include:  whether production at discovery as opposed to trial is necessary to avoid unfairness; the importance of the documents in the litigation; the relationship of the non-party to the parties and the litigation; the non-party’s ability to produce the documents; the availability of information from alternative sources; and whether the moving party already possesses adequate information, and if not, whether this is the fault of the defendant.

The court recognized that the non-party was the only party with possession of the documents and did not object to their production.  The court also found the documents were important to the matter at hand and both parties would be going to trial blind if the documents were not produced beforehand. In addition to being unfair to Wawanesa, this would be an inefficient use of the court’s time.

Lessons for Insurers

It is not sufficient for an insured claiming Section B benefits to provide evidence that the aggregate amount of a claim exceeds Section B limits. The details of the individual expenses remain material to the action and the insurer should be afforded an opportunity to evaluate every specific expense incurred for compliance with the terms of Section B.


1   2017 PECA 12
2   [1995] O.J. No. 3136 (ONCA)

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