Date: 20060615
Docket: T-666-00
Citation: 2006 FC 771
Vancouver, British Columbia, June 15, 2006
Present: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
JOHN CAMERON VAN EGMOND
and AAFKE ADRIANA VAN EGMOND
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] By motion filed on March 3, 2003, the Plaintiffs seek an Order directing the Defendant to produce a further Affidavit of Documents; or, alternatively, directing the Province of British Columbia and Land and Water British Columbia Inc. to disclose all relevant documents in their possession.
[2] The motion was taken under reserve by Prothonotary John A. Hargrave following a hearing on November 9, 2004. The Chief Justice by Order dated March 23, 2006 directed that the Plaintiffs' motion be reheard. These are the Reasons and Order dismissing the motion following the re-hearing held on June 15, 2006.
[3] On April 21, 1970 the Government of the Province of British Columbia (British Columbia) and Government of Canada (Canada) entered into an agreement for the purpose of establishing a national park on the west coast of Vancouver Island. The agreement between the two governed, among other things, the acquisition of private land for incorporation into the park. British Columbia and Canada jointly established the boundaries of the new park. The task of British Columbia was then to acquire parcels of private land within the proposed park, and to accomplish that, decide on the acquisition programme, review appraisals and negotiate with owners.
[4] In the present action, the Plaintiffs, who were land owners within the proposed park, sued Canada for damages arising out of tactics alleged to have been used by Canada and its agents in order to discourage the Plaintiffs from using, developing and enjoying their property, the result of which the Plaintiffs say was a forced court-ordered sale at less than fair market value.
[5] The Plaintiffs, by the present motion, seek production of certain documents referred to in Schedule 4 of the Affidavit of Documents served by Canada. The schedule reads as follows:
The following are all of the relevant documents, or bundles of relevant documents, that I believe are in the possession, power or control of a person who is not a party to the action:
Documents in the files of Brent Henderson of B.C. Lands, 2975 Jutland Road, Victoria; of the Cowichan Valley Regional District; the Environments Appeal Board; and the Ditidaht First Nation. Some of these documents may be privileged and exempt from disclosure.
[6] The Plaintiffs' motion is focused on production of the documents in the possession of British Columbia, a non-party to the proceeding. Canada says that it has listed all relevant documents in its power, possession or control. The Plaintiffs do not dispute that Canada has complied with its obligations under Rule 223. Consequently, there is no basis for compelling Canada to produce a further and better affidavit of documents.
[7] British Columbia does not deny that it has documents relating to the property at issue in the action, and indeed, some are said to have been produced in British Columbia Supreme Court litigation involving other parties. British Columbia resists production beyond those already produced voluntarily and pursuant to access to information legislation.
[8] The Plaintiffs now request Court-ordered production on the basis either that British Columbia acted as Canada's agent, and thus Canada must itself produce those documents, or alternatively, on the basis of Rule 233, governing production of documents by someone who is not a party.
[9] British Columbia submits that there is no agency relationship between Canada and British Columbia; and this Court does not have the jurisdiction to require British Columbia, which is not a party, to produce documents, for at common law, the Crown is immune from production, and there is no legislation to authorize such production. Moreover, production under Rule 233 is properly limited to relevant documents, the production of which could be compelled at trial. According to British Columbia, Rule 233 does not create an obligation that someone who is not a party provide all relevant documents as if the process were a discovery of documents.
[10] For the reasons that follow, I need not deal with the significant agency or constitutional issues raised by the parties. Rule 233 provides for examination of non-parties as follows:
| 233. (1) On motion, the Court may order the production of any document that is in the possession of a person who is not a party to the action, if the document is relevant and its production could be compelled at trial.
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233. (1) La Cour peut, sur requête, ordonner qu'un document en la possession d'une personne qui n'est pas une partie à l'action soit produit s'il est pertinent et si sa production pourrait être exigée lors de l'instruction.
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[11] In order to obtain relief under Rule 233, the Plaintiffs were required to establish, as a pre-condition to production, that the documents in the possession of British Columbia are relevant to the issues in the action.
[12] The Plaintiffs submit that the documents in British Columbia's possession are prima facie relevant since they are characterized as such by Canada in their affidavit of documents. I disagree. Canada appears to be simply identifying a B.C. Lands file as a potential source of relevant documents. In fact, the Plaintiffs concede that there is no evidence that Canada is privy to the documents in the B.C. Lands file. Consequently, it was incumbent on the Plaintiffs to establish, with some degree of specificity, the nature of documents sought to be produced, as well as their relevance to the issues in the proceeding. They have failed to do so
[13] On consent of the parties, the motion is dismissed, without prejudice to the Plaintiffs right to seek to compel production of further documents during examinations for discovery.
ORDER
THIS COURT ORDERSthat:
1. The motion is dismissed.
2. Costs of the motion, hereby fixed in the amount of $1,000.00, shall be paid by the Plaintiffs to the Defendant, in the cause.
3. Costs of the motion in the amount of $1,000.00, inclusive of disbursements, shall be paid by the Plaintiffs to Her Majesty the Queen in Right of the Province of British Columbia.
4. The parties shall complete the first round of examinations for discovery no later than September 30, 2006.
5. The Plaintiffs shall submit a joint schedule for the hearing of motions arising from the first round of examinations for discovery, or provide a deadline by which a requisition for pre-trial conference will be filed, no later than October 16, 2006. The parties are at liberty to requisition a case management conference at any time, provided that the request is made in writing and includes: (1) an agenda for the conference; (2) a summary of the positions of the parties with respect to the agenda items; (3) draft wording for the directions or orders required from the Court; (4) the estimated duration of the conference; and (5) dates of mutual availability of counsel for the parties.
"Roger R. Lafrenière"
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