Judgment Released: June 8, 2010 Link to Judgment
On a refusals motion under the new Rules, the degree of connection between the question asked and the matters in issue is now relevance, rather than “semblance of relevance”. In most instances, there is no significant difference between the two standards of disclosure. Regardless of whether the test is relevance or semblance thereof, the approach comes down to this: subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met – the question asked is relevant.
All of this, however, must be filtered through the lens of proportionality, such that what has been requested has to be considered within the context of the particular case, to ensure that it is not overly onerous when measured against what is at stake on a variety of levels. Thus, even if the response to the above question is “yes, the response could assist the trial judge in making a determination regarding a matter in issue,” a second question must be asked: “is there enough at stake, in terms of significance or money, to justify the time and expense of the disclosure sought?”