The decision in Sidhu v. Hiebert, 2018 BCSC 401 outlines the legal principles and authorities as it pertains to the drafting of a Notice of Civil Claim. I will quote directly from this decision:
Applicable Law
[30] Both counsel provided an excellent summary of the legal principles and authorities, and I will quote extensively from their submissions.
The Rules
[31] The applicable Rules are as follows:
3-1(2) A notice of civil claim must do the following:
(a) set out a concise statement of the material facts giving rise to the claim;
(b) set out the relief sought by the plaintiff against each named defendant;
(c) set out a concise summary of the legal basis for the relief sought;
…
(g) otherwise comply with Rule 3-7.
…
3-7(2) The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are themselves material.
…
3-7(18) If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading.
3-7(19) If the particulars required under subrule (18) of debt, expenses or damages are lengthy, the party pleading may refer to this fact and, instead of pleading the particulars, must serve the particulars in a separate document either before or with the pleading.
3-7(20) Particulars need only be pleaded to the extent that they are known at the date of pleading, but further particulars
(a) may be served after they become known, and
(b) must be served within 10 days after a demand is made in writing.
…
3-7(22) The court may order a party to serve further and better particulars of a matter stated in a pleading.
3-7(23) Before applying to the court for particulars, a party must demand them in writing from the other party.
3-7(24) A demand for particulars does not operate as a stay of proceedings or give an extension of time, but a party may apply for an extension of time for serving a responding pleading on the ground that the party cannot answer the originating pleading until particulars are provided.
Object and Function of Pleadings
[32] The object and function of pleadings were well summarized by Voith J. in Sahyoun v. Ho, 2013 BCSC 1143 at paras. 16-20 [Sahyoun]:
[16] The new Rules alter the structure in which pleadings are to be prepared. The core object of a notice of civil claim, however, remains the same. That object is concisely captured in Frederick M. Irvine, ed., McLachlin and Taylor, British Columbia Practice, 3rd ed., vol. 1 (Markham, Ont.: LexisNexis Canada Inc., 2006) at 3-4 – 3-4.1:
If a statement of claim (or, under the current Rules, a notice of civil claim) is to serve the ultimate function of pleadings, namely, the clear definition of the issues of fact and law to be determined by the court, the material facts of each cause of action relied upon should be stated with certainty and precision, and in their natural order, so as to disclose the three elements essential to every cause of action, namely, the plaintiff’s right or title; the defendant’s wrongful act violating that right or title; and the consequent damage, whether nominal or substantial. The material facts should be stated succinctly and the particulars should follow and should be identified as such…
[17] These requirements serve two foundational purposes: efficiency and fairness. These purposes align with Rule 1-3 which confirms that “the object of [the] Supreme Court Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.”
[18] I emphasize efficiency because a proper notice of civil claim enables a defendant to identify the claim he or she must address and meet. The response filed by a defendant, together with the notice of civil claim and further particulars, if any, will confine the ambit of examinations for discovery and of the issues addressed at the trial itself. Proper pleadings limit the prospect of delay or adjournments. They allow parties to focus their resources on those matters that are of import and to ignore those that are not. They facilitate effective case management and the role of the trier of fact.
[19] A proper notice of civil claim also advances the fairness of pre-trial processes and of the trial. Defendants should not be required to divine the claim(s) being made against them. They should not have to guess what it is they are alleged to have done.
[20] In Keene v. British Columbia (Ministry of Children and Family Development), 2003 BCSC 1544, 20 B.C.L.R. (4th) 170, Justice Parrett confirmed that the essential purpose of pleadings is to define the issues, giving the opposing parties notice of the case they have to meet and to provide the “boundaries and the context for effective pre-trial case management, the extent of disclosure required, as well as the parameters or necessity of expert opinions” (para. 27).
Function of Particulars
[33] Particulars are an extension of pleadings, the purpose of which is to ensure a fair and open proceeding conducted with clarity around the issues so that the parties may prepare their case without being taken by surprise. The functions of particulars, as summarized in Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 at para. 15 (C.A.) [Cansulex], are:
- to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;
- to prevent the other side from being taken by surprise at the trial;
- to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;
- to limit the generality of the pleadings;
- to limit and decide the issues to be tried, and as to which discovery is required; and
- to tie the hands of the party so that he cannot without leave go into any matters not included.
[34] The guiding principle to the exercise of the court’s discretion is whether particulars are “necessary” to achieve one of the functions of particulars set out above: G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd., 1993 CanLII 187 at 3 (B.C.S.C.) [G.W.L.].
[35] The function of particulars and the analysis to be made by the court in evaluating whether particulars ought to be ordered were discussed in Cominco Ltd. v. Westinghouse Can. Ltd.,1978 CanLII 234 (B.C.S.C.) [Cominco]:
[13] The leading decision on delivery of particulars in this province is set out in the judgment of Sheppard J.A. in Anglo-Can. Timber Products Ltd. v. B.C. Elec. Co. (1960), 1960 CanLII 282 (BC CA), 31 W.W.R. 604, 23 D.L.R. (2d) 656 (B.C.C.A.). Following a motion for the delivery of further and better particulars, the chambers judge in this court adjourned the defendant’s application asking for particulars of the statement of claim until the defendant completed its examination for discovery of the plaintiffs officers. Such a ruling was held to be in error because discovery should only take place after the issues have been properly defined by the pleadings. One of the ways to clarify these issues is through delivery of further and better particulars. Therefore it was held that an examination for discovery is not a substitute for particulars and an application for particulars should not be defeated by an argument that the applicant can get the same particulars by way of the examination for discovery.
[14] The contest which has arisen here is of a different nature. Counsel for the plaintiff did not suggest the particulars of the statement of claim ought to be obtained by Northern through the discovery process instead of by way of written demand and reply. The plaintiff merely says many of the facts which the defendant seeks are not known to the plaintiff at this time. It states if it has an opportunity to examine the officers of Northern, then it will be able to give some or perhaps all of the particulars which Northern requests.
[15} That kind of an argument calls for the consideration of different principles:
- A plaintiff should frame his charge in the first instance with certainty and precision. He should not be permitted to bring an action [in] the hope he will be able to establish his claim by the admissions of the defendant on an examination for discovery. Such a process is in the nature of a “fishing expedition” and has always been viewed with disfavour by the law: Somers v. Kingsbury, 1923 CanLII 497 (ON CA), 54 O.L.R. 166 at 177, [1924] 2 D.L.R. 195 (C.A.); comments approved by Meredith J. in Bremer v. Barrett, [19751 W.W.D. 106, 1975 CanLII 1081 (BC SC), 59 D.L.R. (3d) 618 at 619 (B.C.).
- Moreover, a plaintiff on an examination for discovery is confined to the issues raised by the pleadings: albeit a wide and searching inquiry which may take a circuitous route. Still it is narrower than an inquiry into the “subject matter” of the action. As well it is not intended to give the inquiring party the right to conduct a “fishing expedition”: Dutton-Williams Bros. Ltd. v. Inland Natural Gas Co. (1963), 42 W.W.R. 621 (B.C.), Lord J.; McKercher v. Vancouver-Iowa Shingle Co., 1929 CanLII 436 (BC SC), 41 B.C.R. 252 at 253, [1929] 2 W.W.R. 287, [1929] 4 D.L.R. 231, McDonald J.
- Affidavit material may be considered on an application of this nature. As a general rule a court may act on an affidavit sworn only as to information and belief except when the applicant is seeking a final order. The success or failure of an application requesting an order for further and better particulars does not by itself result in the dismissal or success of an action. But if a plaintiff is ordered to give particulars and cannot do so his claim may be struck out on a subsequent motion because the statement of claim fails to allege facts specifying the essential ingredients the plaintiff must prove. If the plaintiff cannot win at trial on the facts as pleaded, better to dismiss the action now than later. That is one of the purposes of pleading.
For these reasons I intend to ignore the affidavits as filed where they are based upon information and belief. Otherwise the ultimate result might be a final order against the plaintiff which had its foundation on hearsay evidence.
- One of the purposes of particulars is to tie the hands of the party compelled to deliver them so that his opposite number may confine him on the evidence he leads at trial and the questions he asks on examination for discovery. Occasionally the details which a defendant demands the plaintiff particularize may be well known to the defendant but not to the plaintiff. The plaintiff cannot escape delivery of particulars on this ground alone. A defendant is entitled to know what story his adversary is making against him. But in some cases the material may reveal a basis for the plaintiffs general allegation and the particulars sought are exclusively or almost exclusively within the knowledge of the defendant and not within the knowledge of the plaintiff. In these instances the law gives the court a discretion in postponing an order for delivery of particulars by the plaintiff until after his discovery of the defendant: Golightly & Knight Ltd. v. Irwin, [1952] O.W.N. 89 at 90; and Ross v. Stakes Motors Ltd., [1951] 2 All E.R. 689 (C.A.).
[16] Because of these conflicting rules and since an order for the delivery of further and better particulars is primarily one of discretion to be exercised in a judicial manner, it is necessary to review each of Northern’s demands and decide whether:
(a) Particulars should be delivered now, or
(b) Particulars should be delivered following discovery of Northern by the plaintiff, or
(c) Sufficient particulars have already been given.
Material Facts
[36] Material facts are distinct from particulars. A material fact is one that is essential in order to formulate a complete cause of action. Particulars are information which allow a party to understand the case he or she must meet. The distinction was discussed in Sahyoun at paras. 25 and 27:
[25] A material fact is one that is essential in order to formulate a complete cause of action. If a material fact is omitted, a cause of action is not effectively pled. The foregoing definition of “material fact” was specifically approved by the Court of Appeal in Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500 at para. 9, 61 B.C.L.R. (4th) 241, and in Young v. Borzoni, 2007 BCCA 16 at para. 20, 64 B.C.L.R. (4th) 157. That same definition was also referred to and applied by judges of this court in Budgell v. British Columbia, 2007 BCSC 991 at para. 8, and in Micka v. Oliver & District Community Economic Development Society, 2008 BCSC 1623 at para. 9.
…
[27] At the same time, though the distinction can be difficult to apply, material facts are not particulars. In McLachlin and Taylor at 3-6, the authors state:
There is a distinction between material facts and particulars. A material fact is one that is essential in order to formulate a complete cause of action. If a material fact is omitted, a cause of action is not effectively pleaded. Particulars, on the other hand, are intended to provide the defendant with sufficient detail to inform him or her of the case he or she has to meet. Particulars are provided to disclose what the pleader intends to prove.
[37] There is a difference between material facts, allegations, particulars, and evidence, which was described by the Court of Appeal in Cansulex at para. 11:
Those decisions delineate the difference between what is properly the subject matter of a Demand for Particulars and what is more properly the subject matter of a Demand for Discovery or material that should be obtained on an Examination for Discovery. At the heart of the distinction between the two lies the question whether the material demanded is intended to, and does, delineate the issues between the parties, or whether it requests material relating to the way in which the issues will be proved.
When Particulars are Required
[38] An order for delivery of particulars is primarily one of discretion to be exercised in a judicial manner, and will be made where particulars are necessary to inform a party of the case it has to meet and in order to assist it to properly prepare for trial: G.W.L.
[39] The principles relevant to the exercise of the court’s discretion to order particulars were set out in Yewdale v. Insurance Corp. of British Columbia, [1994] B.C.J. No. 1892 at para. 68 (S.C.) [Yewdale]:
- Given the increasing number and complexity of cases brought before our court, any steps legitimately taken to clarify the issues and reduce the length of trial must be encouraged;
- Parties to an action must frame their pleadings with certainty and they are not permitted to bring or defend an action in the hope that the claim or defence will be established by admissions on a notice to admit or at an examination for discovery. In framing their pleadings, so much as is possible and practical, the parties must set out the facts but not the evidence on which they intend to rely to prove their claim or defence;
- The purpose of particulars is to require a party to clarify the issues raised by the pleadings so that the opposite party may be able to properly respond to the pleadings and to properly prepare for an examination for discovery and for trial;
- An examination for discovery is not a substitute for an order for particulars and an application for particulars should not be defeated by an argument that the applicant can get the same particulars by way of conducting an examination for discovery.
- If the particulars applied for are generally only known to the party making the application, that party may be required to give discovery prior to particulars being ordered.
- The order for delivery of particulars is one of discretion to be exercised in a judicial manner. In exercising the discretion, the justice or master must be mindful of the stage of proceedings when determining whether or not:
- sufficient particulars have been given, or
- particulars should be delivered now, or
- particulars should be given following an examination for discovery, or
- some particulars should be given now and others given later following discoveries.
Types of Particulars Requested and Refusals
- Particulars of Alleged Misrepresentations
[40] Rule 3-7(18) requires that a party alleging misrepresentations provide full particulars of each instance on which an alleged misrepresentation was made. This requires providing the factual underpinnings of the misrepresentations, which are: the nature of the misrepresentations, the circumstances in which they were made, when, how and by whom they were made, and how they were relied on to the detriment of the plaintiff.
[41] As stated in Harris v. Ray Kissack Memorial Housing Society, 2003 BCSC 1476 at para. 11 [Harris]:
[11] According to Rule 19(11) a plaintiff who relies on misrepresentation is required to plead “full particulars”, which are to include “dates and items if applicable”. See Homalco Indian Band v. British Columbia, [1998] B.C.J. No. 2703 at para. 4 (S.C.). The reference to “dates” suggests that the intent of Rule 19(11) is to require a plaintiff who pleads misrepresentation to identify for the defendant, where feasible, the particular instance or instances on which the misrepresentations were allegedly made.
[42] Nissan submits that the term “misrepresentation” was interpreted in Harris to mean any type of allegation relating to “inaccurate, false or misleading” statement[s]: Harris, at paras. 20-22. I do note, however, that the plaintiff in Harris, at para. 5, explicitly claimed inducement and reliance in the statement of claim, which is slightly different from the case at hand.
[43] Where the alleged misstatement is contained in a document, plaintiffs have been held to provide particulars of the specific statement[s] in the document alleged to be false or misleading. As stated in Harris at para. 22:
[22] In my view, paragraph 30 should be particularized in order to allow the defendant to know the nature of the case he has to meet. The defendant is entitled to know which of the representations is alleged to be inaccurate, false or misleading. The plaintiff should provide this information in the manner prescribed by Rule 19(2).
[44] Further, where misstatements are alleged to be oral or in other documents, plaintiffs have been held to provide particulars of the facts and circumstances of such alleged misstatements. As stated in Harris:
[26] Paragraph 35 appears to refer to representations made by the defendants in some context other than the disclosure statement and related documents. The plaintiff has not pleaded what those representations were, which defendant made them, or the circumstances in which they were made.
[27] The plaintiff should be required to set out the representations allegedly made outside the disclosure statement and by whom. It may be that this list will resemble that currently found in paragraph 37, but that must be made clear. Further, some particularization of the circumstances of the making of each representation is required. Taken together, Yewdale and Border Enterprises stand for the proposition that a plaintiff may not allege that a defendant had made a misrepresentation without pleading some sort of factual underpinnings for those allegations. To paraphrase Tysoe J. in Border Enterprises:
If such misrepresentations were made by [any of the defendants] to [her], the [plaintiff] should be aware of the nature of each misrepresentation, when it was made, who made it, to whom it was made and how the [plaintiff] relied on it to [her] detriment.
…
[34] For the reasons given earlier, and on the basis of McEachren, Yewdale and Border Enterprises, it is my view that the plaintiff should be ordered to provide particulars as to which defendants made such a representation and the circumstances in which they were made. Once again, if a representation of the sort alleged was made to the plaintiff, she should be able to describe when, how and by whom it was made. If the representations are alleged to have been contained solely within the disclosure statement and related documents, a pleading to that effect would likely suffice. If the representations were made in some other manner, the circumstances must be pled.
- Particulars Asserted Not to Be Within the Pleader’s Knowledge, Better Known to Demanding Party and/or Only Determinable on Discovery or Through Experts
[45] A requirement to provide particulars is not excused because the plaintiff does not have the information within his knowledge. The plaintiff must plead his claim with precision and set out the facts within his knowledge. A plaintiff is not entitled to plead generally and then embark on a fishing expedition to determine whether there are facts supportive of his position: see Cominco, at para. 15.
[46] In Yewdale, at para. 77, the court stated as follows:
With respect to the first argument, it is not the rule that a party has only one opportunity to provide particulars. Particulars supplied are from time to time expanded as a party grows in factual knowledge of additional circumstances surrounding the claim or defence. The rule for this plaintiff is that she must state her claim with certainty and precision setting out the facts within her knowledge and upon which she bases her claim. She is not merely to plead the conclusions of negligence or other matters and then embark on a “fishing expedition” with respect to the conduct of the action to determine whether or not there are any facts to support those conclusions.
[47] Where a plaintiff seeks to assert that he is unable to provide particulars because they are not within his knowledge, and seeks to delay the provision of particulars until after discovery, the plaintiff must provide an affidavit stating: (i) he is unable to provide the specific particulars requested; and (ii) his belief that there is a basis for the allegation and the grounds for that belief: Yewdale, at para. 50, citing Southin J. in Proconic Electronics Ltd. v. Wong (1986), 67 B.C.L.R. 237 (S.C.).
[48] Discovery is not a substitute for particulars. A demand for particulars should not be refused on the basis that what is sought is best known to the party demanding it. As held in G.W.L. at 4-5:
Discovery is not a substitute for particulars. The contention that what is demanded can be obtained, or that it has been obtained, on discovery is no reason to refuse particulars properly sought. … A party is entitled to know what case is made against it when (whether before or after discovery) the other side is in a position to give particulars of the facts it will prove at trial [citation omitted].
[49] Particulars may still be required where the information may subsequently be provided through expert evidence. As stated in The Owners, Strata Plan BCS 1348 v. WVC Phase III Limited Partnership, 2016 BCSC 1053 at paras. 3 and 4 [Strata Plan BCS 1348]:
[3] For the most part I am satisfied that particulars sought ought to be provided because they are necessary to narrow the issues and, as was said in Harris v. Ray Kissack Memorial Housing Society, 2003 BCSC 1476, to tie the hands of the plaintiff so that it cannot, without leave, go into any matters not particularized. HBH needs to know, with some degree of precision, what it is that it is alleged to have done wrong.
[4] I appreciate that most of the expert reports have been produced already and they address HBH’s work on the project, but I agree with Ms. Bryden that what Mr. Justice Lowry said in G.W.L. Properties v. W.R. Grace Co., 1993 CanLII 187 (S.C.) is applicable. He was saying it with respect to discovery, but I think the same thing can be said with respect to expert evidence. Simply, evidence is not a substitute for particulars. The fact that HBH has some knowledge of what the evidence is going to be is not the point. Nor is the fact that expert evidence is going to be required to prove the allegations. Particulars serve a different purpose. Expert evidence is the proof; the particulars define the issue.
- Particulars of Party’s Alleged Means of Knowledge
[50] In previous case law, a party alleging that another party “knew or ought to have known” of a product’s alleged hazards by reason of past incidents, events, representations, and documents was ordered to provide particulars of the alleged means of knowledge. In G.W.L., at pp. 7-12, Lowry J. stated as follows:
I turn, then, to consider what particulars are necessary and ought to be given in respect of the facts pleaded by Grace in the context of this case.
Grace pleads that, at times which are material, the owners or their predecessor companies, that designed and constructed the buildings, and the Workers’ Compensation Board that allowed the insulation to be used, knew, or ought to have known, that the product installed contained asbestos, asbestos could be hazardous to human health in certain circumstances, and asbestos-free products were available. It is pleaded they knew, or ought to have known, because:
- Advice: They were advised accordingly by salesmen and other employees of companies that are now part of the Grace group of companies and by salesmen and employees of other entities.The owners seek particulars of the names of the persons who gave and who received the advice, by whom they were employed, when and where the advice was given, and the nature of the advice.
- Publications: There was advertising and promotional material circulated by companies that are now part of the Grace group and by others.The owners seek particulars of the titles of the material, the times and places of publication and circulation, the persons who published and circulated the material, and the subject matter of each publication.
- Publicity: There was, at all material times, wide publicity about the possible effects in certain circumstances of asbestos fibre on human health. There was publicity of a controversy with respect to one building constructed in Vancouver in 1971 concerning the possible health effects of using an asbestos-containing product. There was publicity about using asbestos-free products manufactured by Grace in other projects.The owners seek particulars of the nature of the publicity, the method of dissemination, the possible effects on human health, and the circumstances under which asbestos fibres could have an effect. They seek particulars of the nature of the controversy in 1971 and of the publicity including any publications about the incident. They have demanded particulars sufficient to identify the projects where asbestos-free products were used and the nature of the associated publicity.
- Common Knowledge: Concerns about the possible effects in certain circumstances of asbestos fibres on human health were a matter of common knowledge at all material times. The owners seek particulars of the nature of the knowledge, the character of the effects, and the circumstances.
- Workers’ Compensation Board: The WCB conducted inspections and testing at construction sites where the product containing asbestos was being applied and found the levels of air-borne asbestos to be within the applicable standards. It supervised the application of an asbestos-free product in one instance. It organized conferences, seminars, and courses as well as distributing publications, notices, and other information that related to the possible health effects of asbestos fibres.The owners seek particulars of the construction sites where the inspection and testing was done, the dates, the persons involved, the nature of the tests and inspections, the results, and the applicable standards. They seek particulars of the WCB’s supervision of an asbestos-free product: the Board’s involvement, the persons involved, the dates, the amount of product applied and where it was applied, and the name of the applicator. The owners also seek particulars of when and where the conferences, seminars, and courses were held and the subject matter of each. They seek particulars of when and where the publications and notices were published, the titles, and the subject matter. They seek as well some identification of the other information distributed by the WCB.Grace says the material fact is that the owners, their predecessors, or the WCB, had, or ought to have had, knowledge of the nature of the insulation product and the availability of other products. Grace has pleaded the means of knowledge and is not required to plead more: the means need not be particularized. To do so, Grace says, would be to plead evidence or the mode by which the material fact is to be proven. Pleadings are to be a brief summary of material facts; the evidence in support is to be ascertained by discovery.
Conclusion
I do not accept the distinction Grace would [draw]. It appears to me that what the owners seek are, in large measure, facts that are material to the defence that Grace raises. The owners seek a statement of the facts that Grace must prove if the defence is to succeed. They do not seek the evidence by which the facts will be proven. For example, the owners are faced with a broad allegation that they knew the nature of the insulation and the existence of alternatives because they, or their predecessor companies, were given advice to that effect some time during the last 30 years or more. They seek the facts Grace must prove: what the advice was and when and by whom the advice was given, and, for that matter, by whom it was received. They do not seek the evidence by which those facts will be proven: the testimony to be given by the persons who gave the advice or the persons who received it or other persons who may have heard the advice being given, ie., the mode of proof. It may of course be that the mode of proof will, in any given instance, be obvious from the particulars given, but that is not a reason for refusing particulars as long as what is sought are facts that are intended, and will serve, to delineate the issues.
I consider that many of the facts sought are necessary to inform the owners of the case they have to meet and to enable them to properly prepare for trial. They need to tie Grace’s hands: they need a statement of specifically what Grace will prove was the means whereby the alleged knowledge was or ought to have been acquired. Discretion should be exercised in favour of requiring Grace to provide the owners with a statement of facts that makes clear what advice, publications, publicity, and common knowledge it is that are material and that Grace will prove to establish its defence. In this case it is imperative that efforts be made to ensure the issues to be tried are focused and the element of surprise minimized. It is time for Grace to particularize the facts material to establishing the owners’ knowledge of the product and the alternatives available with which the parties and the court will be concerned at the trial. In my view, the need for particulars in this regard will be met by Grace stating the following facts to the extent that such are to be proven at trial:
(a) the specific advice that was given, the dates, the persons involved and in what capacity they were employed;
(b) the titles, the source, and the dates of the published material;
(c) the possible effects on human health and the certain circumstances that were the subject of the publicity and the common knowledge that existed at all material times; and
(d) the projects that were the source of publicity concerning the use of asbestos-free products and the content of the publicity associated with each.
By the same token the owners are also entitled to a statement of the following:
(e) when and where the WCB inspections and testing were undertaken when Grace’s product containing asbestos was being applied; and
(f) when and where the WCB conferences, seminars, and courses were organized and what and when publications, notices, and other materials were distributed which included discussion of the possible health effects of asbestos fibres.
[51] See also McLachlin and Taylor where the authors state as follows at pages 3‑96 and 3‑118:
Where the defendants in hazardous products litigation were alleged by the plaintiffs to have had several means of knowledge of the potential hazards associated with their products, the chambers judge held that particulars as to the advice, publications, publicity and common knowledge alleged to be means of knowledge were material facts rather than evidence. The chambers judge ordered that the defendants provide those particulars because they were necessary to inform the plaintiffs of the case they had to meet and to enable them to properly prepare for trial; see G.W.L. Properties Ltd. v. W.R. Grace & Co.-Conn., [1993] B.C.J. No. 1062, 79 B.C.L.R. (2d) 126 (S.C.). See too, Reid v. British Columbia (Egg Marketing Board), [2002] B.C.J. No. 1861, 23 C.P.C. (5th) 127 (S.C.), in which the chambers judge decided, on a consideration of G.W.L. Properties Ltd. v. W.R. Grace & Co.-Conn., supra, that paragraphs in a statement of claim (now the facts and relief portion of a notice of civil claim) that set out the history of the organic egg industry in British Columbia, dealings over the years between the organic egg producers and graders and the Egg Marketing Board, alleged actions and efforts by the Board to injure the organic egg industry, and the harm said to have been done as a result, similarly set out the essentials of the case the Board had to meet.
…
The broad statement of the function of pleadings has also been adopted in Hayes Heli-Log Services Ltd. v. Aero Aerospace Inc. – Acro Aerospatiale Inc., [2006] B.C.J. No. 74, 24 C.P.C. (6th) 312 (S.C.), at para. 5…
[52] See also Cominco, at paras. 9, 37, and appendix para. 5(c).
- Particulars of Unidentified Documents
[53] Rule 3-7(2) provides that the effect of any document referred to in a pleading must be stated. This suggests that a document cannot be alleged in a pleading without being identified. Thus, that rule states: “The effect of any document … referred to in a pleading, if material, must be stated briefly and the precise words of the documents … must not be stated, except insofar as those words are themselves material.” Thus, if it is material, the document must be identified. If it is not material, the party should not be referring to the document at all.
[54] Additionally, in numerous cases, judges of this Court have relied upon the principles of particulars generally to order parties to provide particulars of documents referenced in pleadings. See, for example:
(a) Strata Plan BCS 1348, at para. 6: alleged non-compliant drawings, specifications, change orders and site directions;
(b) Yewdale, at para. 82: data, measurements and photographic evidence, and school, employment and tax records alleged not to have been collected or assembled; and
(c) G.W.L., at page 11: titles and dates of published scientific material.
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