Division 2Division 2 Notice to produce before hearing
(1) In this Division:notice to produce means a notice to produce referred to in rule 21.10.
party A means a party to whom another party is producing, or being asked to produce, documents or things for inspection.
party B means a party who is producing, or being asked to produce, documents or things for inspection.
(2) For the purposes of this Division, a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.
21.10 Notice to produce for inspection by parties
(cf SCR Part 23, rule 2 (1); DCR Part 22, rule 2 (1), (1A) and (2))
(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
21.11 Production under notice to produce
(cf SCR Part 23, rule 2 (3) and (4); DCR Part 22, rule 2 (3) and (4))
(1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce:(a) produce for party A’s inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B’s possession, and(b) serve on party A, in respect of any document that is not produced, a notice stating:(i) that the document is a privileged document, or(ii) that the document is, to the best of party B’s knowledge, information and belief, in the possession of a person identified in the notice, or(iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document.(2) For the purposes of subrule (1):(a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and(b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time.
(cf SCR Part 23, rule 5, Part 24, rule 1 (3); DCR Part 22, rule 5)
In any proceedings on a common law claim:(a) for damages arising out of the death of, or bodily injury to, any person, or(b) for contribution in respect of damages so arising,a party is not required to comply with a notice to produce in relation to a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise.
21.13 Costs and expenses of compliance
(cf rule 33.11)
(1) The court may order party A to pay the amount of any reasonable loss or expense incurred by party B in complying with a notice to produce.(2) If an order is made under subrule (1), the court must fix the amount or direct that it be fixed in accordance with the court’s usual procedure in relation to costs.