Jul 27, 2016

AREAS OF LAW: Chambers; Production of documents; Undertaking to advise

Alexander v. Sun Life Assurance Company of Canada, 2016 ABCA 2 (CanLII)

A chambers judge may not order the production of a document, the relevance and materiality of which she has not determined.~

BACKGROUND: The Respondent, Caroline Alexander, sued the Appellant, Sun Life Assurance Company of Canada, in the underlying action for long-term disability benefits. She also sought aggravated and punitive damages on the ground that the Appellant failed to consider or assess her claim in good faith. In the course of that litigation, an officer of the Appellant swore during questioning to the existence of an online databank of reference material that is made available to the Appellant’s case managers to assist them in assessing long-term disability claims. In March 2014 the Respondent’s counsel asked if there was an index for this material. The Appellant’s representative said she did not know, and so Respondent’s counsel sought the Appellant’s undertaking to find out, and to produce the index if it existed. When there was no response to the undertaking to advise, the Respondent applied for an order compelling an answer to the question. The application was disposed of by way of a consent order dated November 2, 2014, in which the court ordered that the Appellant answer the undertaking. On December 23, 2014 the Appellant informed the Respondent that it refused to answer the undertaking. At this point the Respondent sought an order declaring the Appellant in civil contempt and an order striking out the statement of defence and entering judgment in favour of the Respondent. In the alternative, the Respondent sought further and better compliance with the November 2014 order. In chambers, the Respondent’s counsel indicated that the contempt application was not being pursued, but that he wanted the undertaking question dealt with. The chambers judge ordered the Appellant to produce the document, without making any determination that it was relevant and material under the Rules of Court. She expressly stated that she would not do so because it would require her to become “way more involved in this than I intend to this morning in morning chambers”. The Appellant appealed this order.

APPELLATE DECISION: The appeal was allowed. The majority held that the chambers judge erred in ordering a party to produce a document the relevance and materiality of which she had not determined. This was an issue that must be resolved in special chambers. Counsel for the Appellant would provide Respondent’s counsel and the court with a copy of the index, so that they could review it when preparing for the special chambers hearing and so that Respondent’s counsel could prepare argument with respect to the relevance and materiality of the document.

Mr. Justice O’Ferrall dissented. He expressed concern that the appeal was even heard, noting that there was no suggestion that the index was privileged or confidential or that its disclosure would adversely affect the Appellant’s legitimate business interests. Rather, this was a case of inordinate delay in responding to a reasonable request for production, followed by a consent order requiring production, followed by a refusal to answer the undertaking. In O’Ferrall JA’s view the majority mischaracterized what the chambers judge did. If she did not engage in any assessment of the relevance and materiality of the index, that question may have been settled by the terms of the prior consent order, under which the Appellant was ordered to provide answers to the undertakings. In any event, however, the parties made arguments before the chambers judge with respect to why the index was or was not relevant. Without seeing the index, it was impossible for the chambers judge to determine its relevance or materiality, so she ordered it produced. Rule 5.1(2) authorizes the court to give directions or make any order required to achieve the purposes of Part 5 of the Rules, which deal with disclosure of information. The ordering of production of the index was clearly within the chambers judge’s discretion. Mr. Justice O’Ferrall would have dismissed the appeal and awarded solicitor-client costs from the date the Appellant first refused to answer the undertaking after being ordered to do so.