Border Enterprises Ltd. v. Beazer East, Inc., 2003 BCSC 49 (CanLII)

  • January 09, 2003

Date: 2003-01-09 Docket: C974540 Tysoe J (as he was then). | Link

In an environmental case, the defendants demand particulars of the allegations. In essence, "the real competition between the parties is that the Federal Crown wishes to keep its allegations against Beazer as broad as possible, while Beazer wishes to know the allegations with particularity.  The Federal Crown wishes to leave the door open in case the discovery process discloses additional information which supports claims of the nature pleaded against Beazer.  On the other hand, Beazer wants to know the case it has to meet and wishes to limit the amount of documents which it is obliged to produce on discovery." (para 29) The court held, "(T)he Federal Crown is required to make specific allegations against Beazer on the information which is known to it and those allegations form the basis of relevancy for discovery purposes.  If the Federal Crown learns additional information, it is entitled to provide further particulars and the discovery process will be widened accordingly." "If such misrepresentations were made by Beazer to it, the Federal Crown should be aware of the nature of each misrepresentation, when it was made, who made it, to whom it was made and how the Federal Crown relied on it to its detriment.  The discovery process should be limited to the known misrepresentations but if other misrepresentations come to light, the Federal Crown can provide further particulars pursuant to Rule 19(11.1)." (para 32) The court goes on to propose "(a) staged production of documents in the present circumstances for two reasons.  First, the Federal Crown has not yet provided adequate particulars of its claims against Beazer and the parameters of discovery are governed by the pleadings (including particulars).  Second, in a case such as this one, where the Federal Crown is making broad allegations of material non-disclosure, there should be reasonable limits placed on the extent of document disclosure until there is evidence which establishes that further disclosure is warranted.  If one stage of document disclosure illustrates that there are likely to be other relevant documents, then there should be a further stage of disclosure." (para 53)