Facts: These were motions for the provincial police and Crown to produce documents related to a fatal vessel collision and in the alternative, for the provincial police to produce an officer to be examined for discovery. The collision occurred in August 2019 when a speedboat, owned by one of the plaintiffs and operated by the other, struck a pontoon boat owned by one of the defendants and operated by the other. Civil actions were instituted in the provincial Court and both the plaintiffs an defendants commenced proceedings in the Federal Court to constitute a limitation fund, to suspend all civil claims resulting from the collision and a obtain a declaration of entitlement to limit liability under the Marine Liability Act. Both operators of the speedboat and pontoon boat were charged separately by the provincial crown with criminal regulatory offences under the Small Vessel Regulations and the Collision Regulations after investigation by the provincial police. In October 2020 all claims against the limitation fund were determined and pleadings closed. The defendants then brought this motion for disclosure of the documents/production of an officer. At the time of the motion one of the two criminal trials had concluded with the second set to end in July 2021. The sole issue was whether the provincial police and federal Crown had to produce their documents prior to the conclusion of the second criminal trial.
Decision: motions dismissed.
Held: The Court has jurisdiction under Rule 233(1) to order production of documents from third parties where those documents are relevant and compellable at trial. The provincial police and crown documents are relevant and the motion meets the formal requirements for the rule. However, the Rule is discretionary and does automatically entitle a production order. Jurisprudence provides a list of non-exhaustive factors to consider in granting a production order including availability of the documents from other sources, necessity, prematurity, fairness and public interest. These motions were heard shortly after the close of pleadings and before examination for discovery of the parties, and the Court acknowledged the documents sought from the provincial crown would be on public record after the end of the second criminal trial which was set to conclude six months from the date of the present motion. Those factors alone are enough to “militate strongly” against the production order. The Court went on to consider the argument that refusing the production order would be unfair as counsel for the operators of the speedboat and pontoon in the criminal trials had been issued the disclosure sought but counsel in the civil actions had not. As those parties were represented by different counsel in the civil and criminal actions, the Court held the criminal disclosure could not be used for furthering the civil case and found that the parties were therefore all on the same footing with respect to disclosure. The Court went further to consider the public’s interest in disclosure prior to conclusion of the criminal trials, holding it was not satisfied the public interest concerns would be adequately safeguarded by strict confidentiality provisions if disclosure was ordered in light of intense media interest in this matter. Finally, the Court held that a member of the provincial police or provincial crown cannot be compelled to produce an officer for discovery under Rule 238 as the provincial police and provincial crown were not named parties in the civil actions and therefore immune from discovery as a third parties under provincial and federal statute.