Applicable Test For Non-Party Production Orders

Rule 30.10(1) of the Prince Edward Island Rules of Civil Procedure allows for production of documents in the possession, power or control of non-parties where the document is not privileged and a) the document is relevant to a material issue in the action and b) it would be unfair to require the moving party to proceed to trial without the documents.   The rule had never been considered by PEI courts in a written decision until the recent case of McCabe v Wawanesa Mutual Insurance Company1 [McCabe].

Background

McCabe was injured in a motor vehicle accident, requiring her to remain in a community care facility for over two years.  The provincial government covered the expense of her stay as social assistance. McCabe alleged that the costs paid by the government were recoverable by her as Section B expenses.  As evidence of quantum, McCabe provided a letter from the facility generally stating the monthly cost. She alleged that since the cost calculated over the