2011 NBCA 27, 2011 NBCA 27

COURT OF APPEAL OF NEW BRUNSWICK 118-10-CA KAREN BENNETT APPELLANT KAREN BENNETT APPELANTE - and - - et - STATE FARM FIRE AND CASUALTY COMPANY RESPONDENT STATE FARM FIRE AND CASUALTY COMPANY INTIMÉE Bennett v. State Farm Fire and Casualty Company, 2011 NBCA 27 Bennett c.

State Farm Fire and Casualty Company, 2011 NBCA 27 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes The Honourable Justice Quigg CORAM : L’honorable juge en chef Drapeau L’honorable juge Deschênes L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: September 9, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 9 septembre 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: February 23, 2011 Appel entendu : Le 23 février 2011 Judgment rendered: March 31, 2011 Jugement rendu : Le 31 mars 2011

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Deschênes The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Deschênes L’honorable juge Quigg Counsel at hearing: For the appellant: George A. McAllister For the respondent: Richard B. Costello, Q.C. and Leanne M. Murray Avocats à l’audience : Pour l’appelante : George A. McAllister Pour l’intimée : Richard B. Costello, c.r., et Leanne M.

Murray THE COURT The production order directed at the RCMP or its delegate, purportedly under Rule 31.11 (“Documents in the Possession of a Person Not a Party”), cannot stand. The appeal is allowed and the order is set aside, with costs throughout, which are set at $3,500. LA COUR L’ordonnance de production, qui est supposée avoir été rendue en vertu de la règle 31.11 (« Documents en [la] possession d’un tiers ») et qui vise la GRC ou son délégué ne peut être confirmée. L’appel est accueilli et l’ordonnance est annulée. Les dépens sont accordés pour toutes les instances et fixés à 3 500 $.

The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] Under Rule 31.11 of the Rules of Court , a judge may order the production for inspection of a document in the possession or control of a non-party to an ongoing action. The threshold requirements for an application under Rule 31.11 may be broken down as follows: (1) a document; (2) that is not privileged; (3) is in the possession or control of a non-party; (4) who is a “person”.

Such an order may not issue unless the judge is satisfied that the document under consideration: (1) relates to a material issue in the action; and (2) it would be inequitable to allow the applicant to proceed to trial without its discovery. Correlatively, the judge may inspect the document to resolve any doubt in his or her mind regarding either of those conditions or to settle disputes over claims of privilege.

[ 2 ] The present appeal determines whether, in the circumstances adumbrated below, Rule 31.11 permits an order: (1) authorizing and directing the RCMP or “their delegate” to locate within a defined timeframe all records, including “personal information” as defined in s. 3 of the Privacy Act , R.S.C. 1985, c. P-21, in the custody or control of the RCMP with respect to investigations pertaining to two instances of suspected criminal activity by unidentified persons in relation to an individual’s home; and (2) providing for production, after the RCMP or “their delegate” have edited from those records certain information. The information in question is information whose disclosure could: (

a) harm an ongoing statutory investigation, an ongoing internal RCMP investigation, “international relations, national defence or security” or “federal-provincial relations”; and (

b) reveal the identity of a confidential human source (or compromise his or her safety or security), sensitive police investigative techniques, privileged solicitor-client communications; or information protected from disclosure by the Youth Criminal Justice Act , S.C. 2002, c. 1. Here are, in abridged form, the pertinent circumstances. [ 3 ] A house is ravaged by fire, which may have been deliberately set. While the owner is not a target, the RCMP launches an investigation that, ultimately, will conclude without criminal charges against anyone.

When the owner seeks indemnity under her home insurance policy, she is rebuffed, the insurer invoking, not arson or any other crime, but a policy exclusion which is triggered when the house is vacant for more than 30 consecutive days (the “vacancy exclusion”). [ 4 ] After the close of pleadings in the owner’s action for recovery under the policy, the insurer seeks an order under Rule 31.11 compelling the RCMP to produce, inter alia , two of its investigation files, the first relative to the suspected arson and the other pertaining to an earlier break & enter into the house.

The RCMP consents subject to important conditions, none favouring the insured, and actually “requests” the judge allow the insurer’s motion. [ 5 ] For her part, the insured objects, arguing, inter alia : (1) the judiciary’s imprimatur is being sought for a “fishing expedition”; (2) there is no admissible evidence identifying what documents are collected in the targeted files, and perforce, establishing that any relate to the one and only material issue, the applicability of the vacancy exclusion; (3) there is no evidential basis for the conclusion that it would be inequitable to force the insurer to trial without discovery of those file documents; and (4) some of those documents might well be subject to a privilege claimable by her.

Nonetheless, the judge allows the motion, apparently inferring that the files in question relate to the applicability of the vacancy exclusion, and that their discovery is “crucial” to the defence. [ 6 ] As will be seen, I am of the view the impugned order is not authorized by Rule 31.11. In the result, I would allow the appeal and set the contested order aside, with costs. II.

Context [ 7 ] In its Notice of Motion, the respondent, State Farm Insurance Company, sought the following relief pursuant to Rule 31.11: 1. […] 2. the Royal Canadian Mounted Police (“RCMP”) produce for inspection any information or records including but not limited to statements, interviews, notes, reports, photographs or other information in its possession or control relating to two investigations regarding the Plaintiff’s home including a break and enter, in which the RCMP opened a file on May 10, 2008 (referenced by RCMP file number 2008-512-981), and a fire, which occurred on June 19, 2008 (referenced by RCMP file number 2008-698-620); 3. the information and records referred to in paragraph 2 above be made available for copying with the reasonable costs of one copy of all such materials to be payable by [State Farm] and such copies shall be for the use of [State Farm] in the within action [...] (Emphasis added) [ 8 ] That relief was sought upon the following grounds: 1. [Karen Bennett] has brought the within action as a result of a June 19, 2008 fire loss at her home located at 321 Highway #8, Nashwaak Village, New Brunswick; 2. [State Farm] has defended the action on the basis that, inter alia , the fire loss is excluded under the terms of the insurance policy due to vacancy of [Ms.

Bennett’s] home for more than 30 consecutive days;

3. On May 10, 2008 the RCMP opened a file on a break and enter that [Ms. Bennett] reported at her home which was subsequently investigated by the RCMP (District #2)(referenced by RCMP file number 2008-512-981) (the “Break and Enter Investigation”). The RCMP file in relation to the Break and Enter Investigation likely contains documents, including but not limited to statements, interviews, notes, reports, photographs or other information relevant to a material issue between the parties in this action, namely whether [Ms.

Bennett’s] home had been vacant for more than 30 consecutive days at the time of the fire loss; 4. Immediately after the fire on June 19, 2008, the RCMP (District #2) conducted an investigation into the fire at [Ms. Bennett’s] home (referenced by RCMP file number 2008-698-620) (the “Fire Investigation”). The RCMP file in relation to the Fire Investigation likely contains documents, including but not limited to a statement by [Ms. Bennett] along with statements, interviews, notes, reports, photographs or other information relevant to a material issue between the parties in this action, namely whether [Ms.

Bennett’s] home had been vacant for more than 30 consecutive days at the time of the fire loss; 5. The materials referred to in paragraphs 3 and 4 above will likely be available at trial by issuing a Summons to Witness for each of the investigating officers, Ben Bertrand and Will Stapleton, both Constables with the RCMP, and another officer, Don Stenger, a Sergeant with the RCMP (District #2); 6. The RCMP has in its control or possession certain documents and information which are relevant to a material issue between the parties, namely whether [Ms.

Bennett’s] home had been vacant for more than 30 consecutive days at the time of the fire loss; 7. The RCMP is willing to disclose and produce copies of all records, including personal information as defined in

section 3 of the Privacy Act , R.S.C. 1985, c. P-21, in its custody or control with respect to the Break and Enter Investigation (file #2008-512-981) from May 10, 2008 and the Fire Investigation (file #2008-698-620) from June 19, 2008 on certain terms and conditions which are outlined in the draft Consent Order attached hereto as

Schedule “A” 8. [Ms. Bennett] is unwilling to enter into the Consent Order attached as

Schedule “A” hereto; and 9. [State Farm] states that it would be inequitable to proceed to trial without discovery of the requested documents and information in the possession or control of the RCMP as they are relevant to matters in issue between the parties. [ 9 ] None of the named RCMP officers provided affidavit evidence, let alone a sworn inventory of the contents of the two numbered files referenced in the Notice of Motion or a sworn statement of the facts that might reasonably give rise to the inference that a document in those files relates to the sole material issue raised, the applicability of the vacancy exclusion.

Moreover, no one provided a sworn statement of the facts that might reasonably prompt the inference that it would be inequitable to allow State Farm to undergo trial without discovery of any such document. [ 10 ] The evidence in support of the motion consisted of the RCMP’s consent (subject to terms laid out in a draft order prepared at its instance by counsel for the Attorney General of Canada) and affidavits by State Farm representatives. Those affidavits did no more than indicate the RCMP had investigated the fire and the break & enter at Ms.

Bennett’s house more than 30 days before its damage by flames, and that there were two numbered RCMP files pertaining to those investigations. [ 11 ] After acknowledging the RCMP’s consent and “request” that the motion be allowed, and hearing Ms. Bennett as well as State Farm, the motion judge rendered the following decision: THE COURT: I’m allowing the motion . I do not agree, obviously, with Mr. McAllister. I don’t agree with your hierarchy argument. I do not agree that there is a danger of these documents invading the privacy of your client. I do agree with Ms.

Murray that these documents do relate to a material issue. They relate to the issue that is the heart of the matter which is the occupancy of the building , and one event happened on May the 10 th , 2008 and the second event happened on June the 19 th , 2008, a little bit more than a month apart. What … The occupancy of the building on both of those dates is crucial to the defendant, crucial. So I find that those files will relate to the material issue, and that preventing the defendant from having the contents of those files would make it inequitable for them to have to proceed to trial without them.

So I am ordering that, and I guess I’m ordering that the RCMP

provide those files. And you’re going to give me an order, aren’t you, Ms. Murray? That’s already been agreed to with the RCMP? Ms. MURRAY: Yes, it has, and I’ll prepare it in the proper format. [Emphasis added.] [ 12 ] Subsequently, the motion judge signed the following order: WHEREAS the Defendant applied for an Order pursuant to Rule 31.11 of the New Brunswick Rules of Court seeking production of relevant documents in the possession of a non-party, the Royal Canadian Mounted Police (the “RCMP”); AND UPON the consent of Mark S.

Freeman, counsel for the Attorney General of Canada, on behalf of the non-party, the Royal Canadian Mounted Police (the “RCMP”), to the relief sought on the motion subject to the terms of a draft Consent Order attached as

Schedule “A” to the Notice of Motion dated July 29, 2010; IT IS HEREBY ORDERED THAT: 1. The RCMP or their delegate be authorized and directed to, within 30 days of receipt of this Order, locate all records, including personal information as defined in

section 3 of the Privacy Act , R.S.C. 1985, c. P-21, in the custody or control of the RCMP with respect to two investigations: an alleged break and enter file (2008-512-981) from May 10, 2008, and a fire investigation file (2008-698-620) from June 19, 2008 (the “Records”). 2. The RCMP or their delegate examine the Records to determine whether any of them, if disclosed:

a) Could harm an ongoing statutory investigation or ongoing internal RCMP investigation;

b) Reveal the identity of a confidential human source or compromise the safety or security of the source;

c) Reveal sensitive police investigative techniques;

d) Reveal privileged solicitor-client communications;

e) If disclosed, could harm international relations, national defence or security or federal-provincial relations; or

f) Reveal information protected from disclosure by the Youth Criminal Justice Act . 3. The RCMP or their delegate cover those portions of the Records described in paragraph 2 before the Records are copied (the “Edited Records”). 4. The RCMP, or their delegate, provide a copy of the Edited Records to Counsel for the Defendant; 5. Counsel for the Defendant shall pay photocopying and courier costs incurred by the RCMP or their delegate in the retrieval, production, inspection and delivery of the Edited Records if so requested by the RCMP.

6. The production of the Edited Records shall be subject to the following conditions:

a) The Edited Records or any part thereof or the information contained therein shall only be used for purposes of this proceeding;

b) The Edited Records or any part thereof or the information contained therein shall not be reproduced, disseminated, published, or made public in any manner whatsoever, except as required by the Rules of Court , or for any use authorized by the Court;

c) The Edited Records or any part thereof or the information contained therein shall be treated as confidential by the parties, their counsel, and any and all employees, associates, servants or agents of those persons. 7. Any disclosure, reproduction, dissemination, or publishing of the Edited Records or any part thereof or the information contained therein, contrary to the terms of this order may be subject to the sanctions provided by the Rules of Court . 8.

The Records are not to be disclosed by the RCMP to counsel for the Defendant until the expiry of the appeal period prescribed by Rule 62.03(2) of the Rules of Court for interlocutory orders or decision. 9. There will be no costs on the motion.

As mentioned, that order was drafted by counsel for the Attorney General of Canada at the instance of the RCMP, except for paragraphs 8 and 9, which were added by counsel for State Farm. [ 13 ] It bears emphasizing that, in these proceedings, the Court is not asked to pass judgment upon the role played by the RCMP and counsel for the Attorney General of Canada in the application under Rule 31.11 .

Nor is the Court called upon to determine whether their involvement is faithful to the spirit, if not the letter, of the Privacy Act , including its stated purpose ( s. 2 ) and its prohibition, except in defined circumstances, against disclosure of an individual’s personal information without his or her consent. I am alive to s. 8(2)( c ), which allows disclosure for the purpose of complying with “an order made by a court […] to compel the production of information”. Even if I could be persuaded that an order under Rule 31.11 qualifies as an order compelling “the production of information” for s. 8(2)(

c) purposes, I could not avoid wondering whether Parliament ever intended that provision to capture a situation like the present one. Here, the material issue in the action is the applicability of a vacancy exclusion under a homeowner’s insurance policy, and the RCMP not only consent to the issuance of an order for production of, inter alia , “personal information”, but counsel for the Attorney General of Canada goes on to “request” the court allow the insurer’s motion. After all, even David battled only one Goliath.

I should also note that the reasons underlying both the consent and the “request” remain unexplained. Be that as it may, I refrain from expressing any views on the issues just raised and, in any event, would not come to any conclusion without a full debate on point. III. Analysis and Decision [ 14 ] In her Notice of Appeal, Ms. Bennett contends the impugned order is the by-product of error in the

interpretation and application of Rule 31.11. According to her, this is manifest from: (1) the order’s overreach; (2) the lack of evidence showing the relevance of any document in the numbered RCMP files to the only material issue, the applicability of the vacancy exclusion; (3) the absence of any evidence establishing it would be inequitable to require State Farm to proceed to trial without discovery of any such document; (4) the “prematurity” of the order, having regard to the fact that Ms.

Bennett’s oral discovery has not yet taken place; (5) the order’s lack of “proportionality”, given the stakes in the litigation and the other discovery tools at State Farm’s disposal; and (6) the motion judge’s failure “to apply or to give due consideration to the principle of public interest immunity and/or privilege”. [ 15 ] At the outset of the hearing on appeal, the Court questioned whether the RCMP is a “person” for the purposes of Rule 31.11 and queried the parties on the advisability of an adjournment for the preparation and submission of related written arguments.

After both sides indicated a willingness to deal with the issue on the spot, Ms. Bennett moved to amend her Notice of Appeal to formally object to the RCMP’s status as a “person” under Rule 31.11 . The Court allowed the motion and heard submissions on point.

[16] It appears well established the RCMP is not a “person” for the purposes of the British Columbia proceduralrule relating to orders for the production of a document in the possession or control of a non-party. Dixon v. Deacon Morgan McEwenEasson, (BC SC), [1989] B.C.J. No. 1471 (S.C.) (QL) is the leading case on point. In his thorough reasons forjudgment, Bouck J. makes the following observations: Rule 26 (11) speaks of documents in the possession or control of a “person.” Is the R.C.M.P. a person within the meaning of the rule?The word “person” is not defined in the Supreme Court Rules. It is defined in the

Interpretation Act, R.S.B.C., 1979 c. 206, s. 29 asfollows: “person” includes a corporation, partnership or party, and the personal or other legal representative of a person to whom the context canapply according to law. By reason of the

interpretation provisions of the

Interpretation Act, that definition applies to the word “person” in the Supreme CourtRules. From the material provided to me, the R.C.M.P. is not a “corporation, partnership, or party.” A corporation is defined in section29 of the

Interpretation Act as follows: “corporation” means an incorporated association, company, society, municipality or other incorporated body where and howeverincorporated, and includes a corporation sole other than Her Majesty or the Lieutenant Governor. That definition does not make the R.C.M.P. force a “person” within the context of Rule 26 (11) since the “force” is not an incorporatedassociation, company, society, etc. The word “party” is not interpreted in the

Interpretation Act. However, it is not a word which fits this situation. Rule 26 (11) gives aparty to an action the right to inspect documents which are in the possession of a person who is not a party to the proceedings. If theR.C.M.P. could be defined as a party to this action under the definition of “person” in the

Interpretation Act, then the Rule would notapply to it. Nor does the R.C.M.P. appear to be any type of legal entity which one might include under the heading “person.”

Section 3 of the RoyalCanadian Mounted Police Act, R.S.C. c. R - 10 describes the force in these words: 3. There shall continue to be a police force, which shall consist of officers and other members and be known as the Royal CanadianMounted Police. The word “force” is defined as meaning “the Royal Canadian Mounted Police.”

Section 4 sets out some of its duties as follows: 4. The force may be employed in such places within or outside Canada as the Governor in Council prescribes. For the purposes of legal proceedings, every member of the force is a servant of the Crown: s. 53. As I read the legislation, the word“force” is adopted as a shorthand way of describing the officers and men/women of the R.C.M.P.

By using the word “force,” Parliamentdid not intend to create a legal entity which is separate and apart from the human beings who are nominally the members. […] I do not doubt the R.C.M.P. passes documents back and forth between its various provincial detachments. Evidence gathered in oneprovince may be sent to a detachment in another province for the purpose of enforcing the criminal law of Canada. If an R.C.M.P. officerin B.C. wanted the documents held by Sergeant Gunn in Toronto, he could probably acquire them with little difficulty.

However, thatdoes not make the R.C.M.P. a “corporation, partnership or party” within the meaning of the Supreme Court Rules. In my view, it would be stretching the words and the intent of federal and provincial legislation too far to categorize the R.C.M.P. as a

person under Rule 26 (11). If there were no other way to inspect these documents, I would strive to interpret the rule to encompass the R.C.M.P. in order to do justice between the parties to this action. But there are other methods to get at the documents, unless they are clothed in some sort of legal rules governing confidentiality or privilege. […] […] I see no way of applying Rule 26 (11) to the R.C.M.P. as a person […]. See, as well, Roberts (Litigation Guardian of) v. Birkett , 2009 BCSC 1107 , [2009] B.C.J. No. 1628 (QL) (Master W.

McCallum). [ 17 ] The term “person” is not defined in Rule 31 or elsewhere in our Rules of Court . Nor is its meaning circumscribed by the Judicature Act , R.S.N.B. 1973, c. J-2. The term is, however, defined in the

Interpretation Act , R.S.N.B. 1973, c. I- 13, as including “a corporation, partnership or society and the heirs, executors, administrators or other legal representatives of a person”. The Oxford Canadian Dictionary , (Don Mills, Ontario: Oxford University Press, 1998) defines “person” as “an individual human being” and “an individual or a group of individuals as a corporation regarded as having rights and duties recognized by law”. [ 18 ] I am persuaded by the foregoing, and particularly the analysis in Dixon v. Deacon Morgan McEwen Easson , that the RCMP is not a “person” within the meaning of Rule 31.11 .

That conclusion is in synch with the longstanding view that the RCMP, as such, is not a legal entity that can be sued (see Cooper v. Canada (Royal Canadian Mounted Police) 2001 BCSC 1788 , [2001] B.C.J. No. 2729 (QL) at para. 48 , per Owen-Flood J., and Attorney General of Canada v. Thériault , 2010 NBCA 38 ).

Moreover, there is not even a scintilla of evidence that the “records” to be produced were, at any relevant time, in the possession or control of the unnamed RCMP “delegate” referenced in the order. [ 19 ] Despite all of that, I would have been disposed to tweak the order under appeal for the purpose of correctly identifying the “person” or “persons” in actual or deemed possession or control of the “records”, if the court record were instructive on point. It is not.

Consequently, I must conclude Rule 31.11 did not authorize the motion judge to order the RCMP or “their delegate” to produce the “records”, whether edited or not. That stated, the order under appeal is also objectionable in other ways. [ 20 ] The order overshoots the boundaries set by Rule 31.11. Recall that State Farm’s application for documentary production targeted the numbered RCMP files, and that the motion judge’s oral decision was to “[order] that the RCMP provide those files”. On its face, the order submitted by counsel for the Attorney General of Canada provides for potentially much more.

Thus, it provides for the production of “the Edited Records”, an expression which, upon a close examination of paragraph 1, exposes the order’s overreach. As I read paragraph 1, it covers more than the edited documents in the numbered RCMP files and encompasses all records, including “personal information” under the Privacy Act , in the “custody or control of the RCMP with respect to [the] two investigations”.

In that regard, I would simply point out that, if the order targeted only the edited documents in the numbered RCMP files, there would have been no need to authorize and direct the RCMP or “their delegate” to locate all the “records”, including “personal information”. Not only are the subject “records” described in vague terms (“all the records with respect to” the “investigations” to which the two numbered RCMP files pertain), they are said to include “personal information”, which embraces, by virtue of s. 3 of the Privacy Act , the following recorded data: (

a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual, (

b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved, (

c) any identifying number, symbol or other particular assigned to the individual, (

d) the address, fingerprints or blood type of the individual, (

e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,

(

f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence, (

g) the views or opinions of another individual about the individual, (

h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph ( e ), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and (

i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual, but, for the purposes of sections 7, 8 and 26 and

section 19 of the Access to Information Act , does not include (

j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including, (

i) the fact that the individual is or was an officer or employee of the government institution, (ii) the title, business address and telephone number of the individual, (iii) the classification, salary range and responsibilities of the position held by the individual, (iv) the name of the individual on a document prepared by the individual in the course of employment, and (

v) the personal opinions or views of the individual given in the course of employment, (

k) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services, (

l) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit, and (

m) information about an individual who has been dead for more than twenty years[.] [ 21 ] While that bundle of personal information is somewhat reduced where production is provided in response to a court order under s. 8(2)( c ), there is absolutely no rational basis for the view – which we must assume the motion judge came to accept by executing the order under appeal – that any of the producible personal information relates to the applicability of the vacancy exclusion. I would be surprised if it were otherwise and will say no more on the subject.

That takes me to the relief actually sought in the Notice of Motion, namely an order that the RCMP produce for inspection “ any information or records including but not limited to statements, interviews, notes, reports, photographs or other information in its possession or control relating to two investigations regarding [Ms. Bennett’s] home, including a break and enter, in which the RCMP opened a file on May 10, 2008 (referenced by RCMP file number 2008-512-981), and a fire, which occurred on June 19, 2008 (referenced by RCMP file number 2008-698-620)” (emphasis added).

[22] There can be no order for the production of information, as such, pursuant to Rule 31.11. That rule provides forthe production for inspection of a document in the possession or control of a stranger to the action; it may not be used for the purpose ofobtaining discovery of that non-party (see Weber v. Czerevko, [1962] O.W.N. 245 (Ont. S.C.) and the cases cited therein, as well as Linda S. Abrams and Kevin P.

McGuinness, Canadian Civil Procedure Law, 2nd ed. (Markham: LexisNexis, 2010) at para. 13.159).More specifically, Rule 31.11 is not a means of discovering what potentially relevant documents, if any, might be in the non-party’spossession or control (see Rhoades v. Occidental Life Insurance Company of California, [1973] B.C.J. No. 718 (C.A.) (QL), at paras. 12,29-3, cited with approval in A & F Albert Ltd. v. Sun Alliance Insurance Co. (1990), (NB KB), 106 N.B.R. (2d) 271,[1990] N.B.J.

No. 14 (Q.B.) (QL) (Riordon J.), at paras. 16-18). [23] At least in part to avoid Rule 31.11 being misused to achieve discovery of non-parties, courts rightly see inRule 31.11’s use of the words “document” and “documents” a requirement that the targeted materials be specified in the supportingaffidavit evidence. After all, a party wishing to discover a stranger to the action to determine what documents are in his or her possessionor control may invoke Rule 32.10 if its, admittedly stringent, prerequisites are met.

Returning to the prayer for relief in the Notice ofMotion, State Farm simply could not obtain an order for the production of information, as such, via an application under Rule 31.11. Inow turn to State Farm’s motion for the production of “records”. [24] A party seeking relief under Rule 31.11 bears the burden of demonstrating that the application is not in thenature of a “fishing expedition”. Rule 31.11 envisages a motion focused on one or more adequately described documents and an orderdirecting their production for inspection (see Trustee of the Property of Lang Shirt Co. v.

London Life Insurance Co., [1926] O.J. No.245 (Ont. Sup. Ct.) (QL), and Esso Resources Canada Ltd. v. Stearns Catalytic Ltd., 1990 ABCA 144 , [1990] A.J. No. 479(C.A.) (QL)). Although the targeted document need not be identified in such detail “that it can be picked out from any number of otherdocuments”, it must nonetheless be adequately described (see Canadian Civil Procedure Law, at para. 13.159).

The determination ofdescriptive adequacy must, of necessity, be case-specific. [25] I acknowledge, nonetheless, that, in some circumstances, it may be fairly obvious that all documents in the fileor files of a non-party relate to a material issue in the action. That may be the situation for documents in a police arson investigation filewhere a claim under a fire insurance policy is defended on the basis of owner complicity in the loss-producing event, in which case areference to specific documents might well be unnecessary. There may be other equally compelling scenarios.

That said, in the run-of-the-mill case, the relevance of targeted materials will virtually always be evidence-dependent. [26] The Notice of Motion informs us that the sole material issue in the action is the applicability of the vacancyexclusion. Obviously, the documents in the numbered RCMP files were gathered for other purposes and whether any of those documentsmight bear on the applicability of that policy exclusion is in the realm of speculative conjecture.

There is simply no admissible evidenceon point. [27] State Farm bore the burden of establishing, by admissible evidence, a sufficient likelihood of relevancebetween, on the one hand, adequately described documents in the numbered RCMP files and, on the other, the applicability of thevacancy exclusion. That burden was not discharged, even though the RCMP showed it was willing to assist State Farm in making thecase for production.

After all, someone within the RCMP provided State Farm representatives with official file numbers, and the RCMP,through counsel for the Attorney General of Canada, was prepared to consent, albeit on terms, to the requested production order. Indeed,counsel for the Attorney General of Canada filed a letter with the court below in which he requested the motion be allowed. That level ofcooperation suggests Ms.

Bennett’s counsel may well be right in protesting that State Farm failed to exercise due diligence in gatheringand submitting the evidence, if there is any, that might have established a relational connection between adequately identified documentsin the numbered RCMP files and the applicability of the vacancy exclusion. [28] Nor did State Farm satisfy the onus with respect to the question of whether it would be inequitable to have itundergo trial without the benefit of the sought-after documentary discovery. In that regard, I note that Rule 31.11(4) speaks of discoverynecessity.

Where that point is not conceded, a finding favourable to the applicant will generally be unjustified without supportingaffidavit evidence. That evidence should detail circumstances pointing to the essentiality of the requested discovery in ensuring trialfairness for the applicant (see Ontario (Attorney General) v. Stavro, (ON CA), [1995] O.J. No. 3136 (C.A.) (QL), atpara. 15, for a helpful list of relevant considerations). Having regard to the narrow material issue in play and the unrelated purposes forwhich documents in the numbered RCMP files were generated, discovery necessity is not readily discernible.

Needless to say, thesituation was entirely different in Clements v. Fougère 2007 NBCA 4, 311 N.B.R. (2d) 368, and Stone v. Sharp, 2008 NBCA 55, 333N.B.R. (2d) 220. [29] Finally, a few words about paragraphs 2 and 3 of the order (the editing provisions). While I leave to anothercase the question of its validity, I cannot refrain from observing that some of its provisions evince a total disconnect with reality. I havein mind the attribution to the RCMP, or “their delegate”, of a right of non-disclosure with respect to information in the “records” that

could harm “international relations, national defence or security” or “federal-provincial relations”. [ 30 ] I also question whether paragraph 2 is compatible with D.G. v. H.F. , 2006 NBCA 36 , 297 N.B.R. (2d) 329, where the Court held the motion judge had fallen into error by allowing the non-party, a psychologist in that case, to decide questions of privilege. In my view, paragraph 2 reflects an assertion of privilege or privileges on behalf of the RCMP.

That being so, it was up to the judge, not the RCMP, to determine the issue of privilege validity. [ 31 ] In any future application for the production of police investigation files, whether as part of the Crown brief or otherwise, I invite consideration of the discussion found in Canadian Civil Procedure Law , at paras. 13.162-13.174. While Ms.

Bennett has not been charged with any criminal offence and the record is mute on whether a Crown brief was ever assembled, it may nevertheless be that some of the production-related concerns raised by the authors might have traction in a future case like the present one. [ 32 ] A closing observation. State Farm’s contention that the RCMP’s consent to the order rendered in the court below dispensed with the need to establish the conditions precedent to the application of Rule 31.11 cannot prevail.

While the situation may be different in other jurisdictions, in this Province, the consent of a non-party to an order for documentary production, while significant, is not determinative of the application. In particular, that consent neither eliminates nor settles the issues of relevance and discovery necessity. IV. Conclusion and Disposition [ 33 ] The order made in first instance, purportedly under Rule 31.11, cannot stand for the reasons articulated above. Accordingly, I would allow the appeal and set aside the order.

I would also direct the respondent pay costs throughout, which I would fix at $3,500. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: _____________________________________ ALEXANDRE DESCHÊNES, J.A. ______________________________________ KATHLEEN A. QUIGG, J.A.