Date: 2008-11-19 Docket: CA035245 D. Smith J.A. | Link

Interpretation of Rule 26(1.2. The court agreed with the respondent that the intention of the rule was "to provide an exemption from R. 26(1) where reasons of time, cost, efficiency and marginal relevance make it impracticable to rigidly apply the rule". Comparison to Rule 230 of the FCC: "On motion, the Court may relieve a party from production for inspection of any document, having regard to (a) the issues in the case and the order in which they are likely to be resolved; and (b) whether it would be unduly onerous to require the person to produce the document. Decisions interpreting the federal rule have excluded production of relevant documents in the interests of time constraints, efficiency, and marginal or no relevance: Apotex Inc. v. Merck & Co., 2002 FCT 626 (CanLII), 2002 FCT 626, 19 C.P.R. (4th) 460, and Eli Lilly & Co. v. Apotex Inc. 2000 CanLII 16043 (F.C.), (2008), 8 C.P.R. (4th) 413 (F.C.T.D.); aff'd 2001 FCA 141 (CanLII), 2001 FCA 141,12 C.P.R. (4th) 127. These considerations and others, including cost and volume of documents requested in relation to the issue to be determined, have also been considered in applications for exemption under R. 26(1.2). Mentions Murao v. Blackcomb Skiing Enterprises, 2003 BCSC 558 (CanLII), where the court refused the application for exclusion from production based on burden, reflecting that the seriousness of the plaintiff's injuries (he was now a quadriplegic) and the relevance of the information warranted its disclosure.