May 22, 2009

NS Civ Pro: Production of Documents, Issue Estoppel and A Note of Caution

Filed under: 1 — ruleswatch @ 12:07 pm

CIBC Wood Gundy Financial Services v. Blackman 2007 NSCA 98

A now well-aged decision of the Nova Scotia Court of Appeal dealing with the production of documents, addresses interesting questions not only of the application of res judicata and issue estoppel but broader questions concerning the mechanics of making production available. Blackman was a stockbroker whose employment was terminated by the Defendant was su9ing for wrongful dismissal. Blackman had been employed by one broker and then shifted to another, Merrill Lynch, which was then acquired by a CIBC company under CIBC Wood Gundy.

Blackman maintained that terms of the inter-company agreement of purchase and sale could contain evidence relevant to implied terms in his own contract of employment with CIBC Wood Gundy and, thence, relevant to his own law suit. He sought access to the contract documents for the purchase. Blackman had originally been turned down once for production before MacAdam J in the Supreme Court.

Armed with some new documents, Blackman apparently applied again. On this occasion, before Coady J. He was successful in obtaining an order for production. The terms were somewhat unusual. (But more of this in a moment).

Res Judicata and Issue Estoppel on Documentary Production

CIBC Wood Gundy appealed, arguing that the Order was res judicata or estopped and arguing, anyway, that Blackman had not established the relevance of the documents under the applicable “semblance of relevancy” test. Res Judicata and Issue Estoppel on Documentary Production The court made it clear that pre-trial production obligations are not static. Cromwell J, writing for the Court held, “12. CIBC’s submissions on res judicata and issue estoppel are not compatible with the provisions of Rule 20.10. That rule gives the Court a discretion to revoke or vary any previous order made under Rule 20. This power recognizes that the scope of relevant material may change in light of how the litigation evolves and as new material comes to the attention of the parties. Coady, J. had a discretion under the Rule to vary the earlier order if persuaded it was appropriate and just to do so in all of the circumstances.”

Semblance of Relevancy

The Appeal Court illustrated how building the evidentiary foundation for the application could alter its outcome The Court concluded that additional evidence tendered before Coady J founded a semblance of relevancy test.“. …this new document strengthens the argument that there is a semblance of relevance to the terms of the “deal” as compared to how that argument appeared on the material that was before MacAdam, J.”

Mechanisms for disclosure of disputed documents

Content of the purchase and sale contracts clearly included sensitive material. The Court took special efforts to consider how documentary production should occur and to sound a note of caution in this case:

“1. The procedure adopted by the judge for production: 21 The judge ordered that the agreement of purchase and sale be produced to the plaintiff’s counsel, Mr. Slone, for his review alone and further, that he not release information which in his view is relevant to the plaintiff’s claim to the plaintiff without first seeking directions from the court. Mr. Slone is content with this unusual arrangement which was first suggested by the judge.

22 During oral argument of the appeal, CIBC for the first time expressed opposition to this arrangement, submitting that any review of the agreement should be done by the Court, not by Mr. Slone.”

23 This aspect of the judge’s order gives me some concern. However, I would not interfere with it, mainly because this issue was not raised as a ground of appeal or addressed in the factums filed. I would make it clear, however, that nothing in my reasons should be understood as addressing the merits or otherwise of this method of production.”


1 Comment »

  1. Stunning, very fantastic theme. I will blog about it too.

    Comment by fernwrers — December 11, 2009 @ 10:18 pm

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