This is application to seek leave to appeal from a motion
decision. The action arose out of a helicopter crash. The owner and
pilot of the helicopter, Mr. Honour and a passenger, Mr. Chadwick
were both killed. Mrs. Honour and Mrs. Chadwick brought lawsuits
respectively against various defendants including the manufacturers
of the helicopter, the engine and the fuel pump, and Transport
Canada via Attorney General of Canada.
A defendant obtained an email from Mr.
Honour to another defendant, which was not included in the list of
production by Mrs. Honour. Defence counsel then asked Mr. Camp
counsel for Mrs. Honour to review the hard-drive of Mr.
Honour’s computer in order to retrieve any relevant
Mr. Camp engaged a technician to do the
job, mined that email and other relevant documents from the
hard-drive, and provided them to defence counsel. Defence counsel
requested Mr. Camp provide them with the technical information to
verify the techniques used, which was refused. The defendants
subsequently made this motion for the production of the
The case management judge ordered Mrs.
Honour to produce the hard-drive for analysis by a forensic expert
selected by the defendants. The main reason was that the defendants
could not verify the quality or the thoroughness of the hard-drive
search because Mr. Camp had not provided them with the necessary
information, while the former owner of the hard-drive was deceased
and could not be examined for discovery.
Justice Bauman for the Court of Appeal
considers the four factors to be addressed on an application for
leave to appeal: Power Consolidated (China) Pulp Inc v BC Resources
Investment Corp (1988), 19 CPC (3d) (BCCA), which are: (i) whether
the point on appeal is significance to the practice; (ii) whether
the point raised is of significance to the action itself; (iii)
whether the appeal is prima facie meritorious; and (iv) whether the
appeal will unduly hinder the progress of the action.
For each factor, Justice Bauman
assesses in no favor to the plaintiff. First, he opines that the
order is of a narrow scope and order is granted under unique
circumstances. As such it is not significance to the practice. The
appellant has not submitted for the second factor. As to the third
factor, Justice Bauman states that the Court will rarely interfere
with an order representing the exercise of discretion by a case
management judge in the course of complex litigation. Therefore he
refuses to evaluate the merits in detail. The last factor is
obvious not in the appellant’s side as granting leave to
appeal will undoubtedly result in the trial date being lost.
The BC Court of Appeal dismissed the
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