Pursuant to Rule 30.10 of the Rules of Civil Procedure, the Court applies a test of relevance and fairness when assessing a request by a party for production of a non-party’s records:

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a)  the document is relevant to a material issue in the action; and

(b)  it would be unfair to require the moving party to proceed to trial without having discovery of the document.  R.R.O. 1990, Reg. 194, r. 30.10 (1)

In Bayliss v. Burnham, 2024 ONCA 464, the Ontario Court of Appeal upheld the decision of the motions judge who had ordered the non-party company to produce financial documents in proceedings involving the estate of the Deceased, who was a co-founder of the non-party company.

Disagreeing with the crux of the non-party company’s argument that the motions judge had misapplied the test under Rule 30.10, the Court of Appeal noted first that the findings of the motions judge were entitled to deference and there was no basis to interfere with those findings:

• Under the relevancy arm of the Rule 30.10 test, the motions judge found that the non-party company’s shares were an asset of the deceased’s estate and went to “the very heart” of the triable question of whether the deceased’s last will makes testamentary sense.
• Under the fairness arm of the Rule 30.10 test, the motions judge found that if disclosure were not provided, the trial would be adjourned if the documents were produced at trial, the information sought could not be obtained from any other source, and the non-party company had a connection to the litigation as the deceased had been the “face” of the company”.

The non-party company also sought to argue that the disclosure order was detrimental to its interests and was overbroad because it permitted a valuator to determine which documents would be required to complete the estate valuation.

In rejecting both of those arguments, the Court of Appeal noted that the motions judge had ordered the parties to comply with a “Confidentiality Protocol”, which she had established with input from the parties to ensure that the financial disclosure would remain confidential. The valuator was also ordered specifically to act “reasonably” and the parties were not prohibited from returning to the case management judge to seek relief.

Thanks for reading!

Aaron Chan