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Civil Litigation Dicta - Discovery - Documentary - Third Parties. Bayliss v. Burnham [third party: R30.10]
In Bayliss v. Burnham (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal from "an order for production of documents by a non-party pursuant to Rule 30.10" in estate litigation:[3] ... Although GRE is a non-party to the litigation, in the Moving Parties’ submission, production of its financial records was necessary because the GRE shares were the estate’s largest asset and disclosure was required to enable accurate dependency claims. Further, the complexity of the estate’s assets and their value would assist in determining the validity of the deceased’s last will, a question that is scheduled to go to trial in September 2024.
[4] GRE opposed the motion for production, arguing that disclosure of its financial information would be detrimental and prejudicial to GRE and that this information has never been publicly disclosed.
[5] The motions judge, who was case managing the matter, granted the order requested by the Moving Parties. She ordered GRE to produce financial statements and any other documents reasonably required by valuators to prepare a valuation of the deceased’s 12.5% interest in GRE. Working with the parties, she also established a Confidentiality Protocol to ensure that the documents produced would remain confidential.
[6] Counsel for the appellant raised several arguments in her written submissions and during oral argument. It is unnecessary to outline each submission in detail. Suffice to say, the crux of GRE’s appeal is that the motions judge misapplied the test under r. 30.10 at both the relevance and fairness stages.[4]
[7] The motions judge’s discretionary decision is entitled to deference, and we see no basis to interfere with it. The motions judge found that the documents sought were relevant to a material issue in the action and that it would be unfair to require the Moving Parties to proceed to trial without them. In reaching this decision, the motions judge considered the factors relevant to determining a production motion set out in Ontario (Attorney General) v. Stavro (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39, at pp. 48-49.
[8] The motions judge began her analysis by recognizing that the standard for relevance of documents is elevated when they are in the hands of a non-party. At the first stage of her analysis, the motions judge concluded that “[t]he GRE shares are an asset of the Estate and must be valued like any other asset” as the value of the shares would go to “the very heart” of the triable question of whether the deceased’s last will makes testamentary sense.
[9] At the second stage of her analysis, the motions judge determined that disclosure was required for fairness to the Moving Parties. She reasoned that: the trial would inevitably be adjourned if the documents were produced at trial; the information sought could be obtained from no other source; and GRE had a connection to the litigation as the deceased had been referred to as the “face” of the company.
[10] In sum, the motions judge found that the Moving Parties had met their burden under r. 30.10. Respectfully, GRE’s submissions on this appeal are attempts to reargue the issues that were comprehensively dealt with by the motions judge in her reasons. Concerns about business interests, privacy, and safety could be, and in our view were, addressed through the Confidentiality Protocol.
....
[12] We also disagree with the appellant’s submission that the motions judge’s order is overbroad because it permits a valuator to determine which documents will be required to complete the valuation. On a r. 30.10 motion the motions judge has discretion to tailor the order as necessary. This is especially so given the motions judge was also case managing this litigation and was in a superior position than this court to determine what was required to ensure fairness to the parties: see Stavro, at p. 47. We see no error in her decision to allow a valuator to determine which specific additional documents may be necessary to complete their task. The motions judge specifically ordered that the valuator must act “reasonably” and we do not interpret her order as permitting a “fishing expedition”. If there are issues with the reasonableness of the valuator’s requests, we are confident that the parties will return to the motions judge in her capacity as the case management judge to make submissions as to whether her order is being complied with.
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