When seeking production of documents from a non-party, it is important to remember that it is not sufficient to only show relevance; it must also be unfair to proceed to trial without the documents.
In Boucher (Litigation Guardian of) v. Charles, 2013 ONSC 3120 (S.C.J.), the plaintiffs brought a r. 30.10 motion to obtain documents from a non-party, the Special Investigations Unit (SIU). The action arose out of an accident between a cyclist and a police motor vehicle. The SIU conducted an investigation and concluded there were no grounds to lay criminal charges against the officer.
In a r. 30.10 motion for production of documents from a non-party, the moving party must satisfy a two-part test: 1) the document must be relevant to a material issue in the action and, 2) it would be unfair to proceed to trial without having discovery of the document. The test sets a high bar and is permissive rather than mandatory (i.e. if it is met, the Court may order production).
The SIU conceded relevance of all of its documents except for statements from two civilian witnesses who did not witness the event. Master McAfee held that the documents were relevant, but the plaintiffs were not able to meet the second part of the test. The witnesses had not consented to release of their statements, and the statements of witnesses given to police officers had been produced in the police file. Master McAfee also considered the public interest. The efficacy of the SIU's investigative process and its ability to discharge its mandate depends on maintaining the confidence of witnesses.
Master McAfee ordered production of a statement by a deceased witness as he would not be available to testify at trial or to provide consent to release the statement. The plaintiffs were not able to show that they would be prejudiced by proceeding to trial without the remaining documents.