Defendant appealed from a Prothonotary’s orders concerning answers to questions on discovery. The Federal Court of Canada took the opportunity to review rules determining the scope of discovery before the Federal Court.
Hughes J. pointed out that overly broad and complex discovery was harshly criticized in both the United States and Canada. Electronic discovery, in particular, was prone to uncontrolled scope and abusive use. As a result, subsection 222(2) of the Federal Courts Rules has changed the test of relevance.
Rule 222(2) provides that a document of a party is relevant if the party intends to rely on it or if the document tends to adversely affect the party’s case or to support another party’s case. This rule was intended to bring to bear a more issue-oriented test of relevance and avoid the ‘train of inquiry’ cases that have tended to expand discovery with little or no effect on issues that are ultimately presented to the trail judge. As to documents which are part of the story or background, care must be taken to balance what must be disclosed with what effect, if any, the document may have.
Moreover, though the question of what is or is not relevant for purposes of discovery is a question of law, the court retains judicial discretion as to whether, nonetheless, it is appropriate to order, or not to order, that documents or answers to questions on examination should be provided.