Rule 15.06 – Disclosure in an application
The applicants filed a Notice of Application, alleging infringement of their copyright and moral rights in drawings of the schooner Bluenose during a refit of the Bluenose II. They sought an order directing the respondents to provide a listing and description for documents over which the respondents claimed privilege. Held, motion granted and direction provided. Rules 15.01, 15.02 and 15.02(2)(b) apply to parties to an application in court. Although Rule 15.06 (disclosure in the case of an application) is less detailed than Rule 15.03 (disclosure in the case of an action), it is likely that the drafters of the Rules did not intend any significant distinction to be drawn therefrom. Therefore, pursuant to Rule 15.06, the respondents have a presumptive mandatory obligation to provide 'a list by which the documents can be identified and put in order.' Each document claimed as privileged must be accompanied by a meaningful description, sufficient to allow a court to make a prima facie decision as to whether it is likely a claim of privilege exists. This would include the date, sender, recipient, general subject matter (without breaching privilege), type of privilege claimed and the basis for that claim. If the respondents wish to restrict the information to be provided, they should make a motion for directions.