This is application to seek leave to appeal from a motion decision. The action arose out of a helicopter crash. The owner and pilot of the helicopter, Mr. Honour and a passenger, Mr. Chadwick were both killed. Mrs. Honour and Mrs. Chadwick brought lawsuits respectively against various defendants including the manufacturers of the helicopter, the engine and the fuel pump, and Transport Canada via Attorney General of Canada.
A defendant obtained an email from Mr. Honour to another defendant, which was not included in the list of production by Mrs. Honour. Defence counsel then asked Mr. Camp counsel for Mrs. Honour to review the hard-drive of Mr. Honour’s computer in order to retrieve any relevant documents.
Mr. Camp engaged a technician to do the job, mined that email and other relevant documents from the hard-drive, and provided them to defence counsel. Defence counsel requested Mr. Camp provide them with the technical information to verify the techniques used, which was refused. The defendants subsequently made this motion for the production of the hard-drive.
The case management judge ordered Mrs. Honour to produce the hard-drive for analysis by a forensic expert selected by the defendants. The main reason was that the defendants could not verify the quality or the thoroughness of the hard-drive search because Mr. Camp had not provided them with the necessary information, while the former owner of the hard-drive was deceased and could not be examined for discovery.
Justice Bauman for the Court of Appeal considers the four factors to be addressed on an application for leave to appeal: Power Consolidated (China) Pulp Inc v BC Resources Investment Corp (1988), 19 CPC (3d) (BCCA), which are: (i) whether the point on appeal is significance to the practice; (ii) whether the point raised is of significance to the action itself; (iii) whether the appeal is prima facie meritorious; and (iv) whether the appeal will unduly hinder the progress of the action.
For each factor, Justice Bauman assesses in no favor to the plaintiff. First, he opines that the order is of a narrow scope and order is granted under unique circumstances. As such it is not significance to the practice. The appellant has not submitted for the second factor. As to the third factor, Justice Bauman states that the Court will rarely interfere with an order representing the exercise of discretion by a case management judge in the course of complex litigation. Therefore he refuses to evaluate the merits in detail. The last factor is obvious not in the appellant’s side as granting leave to appeal will undoubtedly result in the trial date being lost.
The BC Court of Appeal dismissed the application accordingly.