In the personal injury case of Forstved v. Kokabi, 2018 BCSC 111, the Supreme Court addressed three late applications seeking additional document production . The plaintiff, suffered a traumatic brain injury from a 2012 car accident which impaired his business competency and ability to earn income. The defendants requested numerous documents related to his past commercial transactions to challenge these assertions.
Justice Kent focused on the untimeliness of the defendants’ requests, noting that the trial was imminent, set to begin just 19 days from the hearing date. The defendants waited until the last moment to conduct follow-up discovery, with the latest examination for discovery occurring only 60 days before the trial.
The court criticized this delay, emphasizing that trial preparation should not be postponed until the eve of the trial. Justice Kent stressed that the defendants’ applications for additional documents were made too late and lacked exceptional circumstances to justify such tardiness. The court underscored that proper and timely document discovery requires the integrity and professionalism of counsel, and last-minute demands for extensive document production would not be endorsed.
Ultimately, the court denied the defendants’ applications, except for ordering the production of specific requested documents within seven days if no objections were made previously. This ruling emphasized the need for diligent and timely trial preparation to ensure fairness and efficiency in the judicial process.
Timeliness and Prejudice of Late Applications
Last-minute demands for extensive production of additional documents are a prejudice to the Plaintiff’s trial preparation and have not been endorsed by the court as noted in Forstved. As Justice Kent stated in paragraph 10 of Forstved:
What has happened here is what occurs all too frequently in these personal injury cases; that is, the defendants tend to wait until the eve of trial before conducting follow-up discoveries and undertaking trial preparation work that could have and should have been done many months before. Absent exceptional circumstances, I am not prepared to grant applications of this sort brought on the eve of trial. It is far too late.
Forstved has been relied on in several other decisions involving last-minute defence applications and those applications have been dismissed for similar reasons: Agelakis v. Xu, 2019 BCSC 2265 at para 8-9; Chohan v. Chohan, 2023 BCSC 268 at para 14; Rattan v. Harrison, 2024 BCSC 257, 2024 at para 16-17; and Kaur v. Bual, 2021 BCSC 998, 2021 at para 4 and 6)
In Shannon v. Cook, 2019 BCSC 1975 a similar application was also dismissed, being made three months before the trial. Master Cameron stated at paragraph 7:
…”it is simply too late at this stage of the proceeding for the defendant to suggest that these records are necessary to properly prepare for trial. Any experts retained by the defendant have been retained…and either have prepared their reports or are on the verge of doing so given that the 84 day limit for delivery of expert reports expires next week.”
There is inherent prejudice in having to deliver new materials to the experts for their comment and reporting, without jeopardizing a trial date.( Rattan at para 26).
Late applications for documents ought to be dismissed based on the last-minute timing of the application. Acceding to these applications will prejudice claimants by severely impeding trial preparation. (Chohan at para 16)
