Duhaime's Law Dictionary


Halliday Order Definition:

A special Court order in regards to document disclosure where, in special cases, a lawyer for a litigant, as an officer of the Court, first review documents from specified sources, or at large, and identifies and proposes to set aside and distinguish documents weighed relevancy, for reasons of privilege, privacy, confidentiality, or the potential personal embarrassment of the party given the personal nature of the information in a document.

A special Court order in regards to document disclosure where, in special cases, a lawyer for a litigant, as an officer of the Court, first review documents from specified sources, or at large, and identifies and proposes to set aside and distinguish documents weighed relevancy, for reasons of privilege, privacy, confidentiality, or the potential personal embarrassment of the party given the personal nature of the information in a document.

Or, as stated in Grewal v Hospedales 2003 BCSC 1624, published at canlii.org/en/bc/bcsc/doc/2003/2003bcsc162.html:

"A Halliday order would permit production of the third party records first to the solicitor for the plaintiff to review for relevancy and litigation privilege before being forwarded to the solicitor for the defendant. This format, the plaintiff submits, would protect her privacy interests."

Also, in Lewis v Frye 2007 BCSC 89, published at www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc89/2007bcsc89.html, Justice Hood stated:

"(S)uch an order enables the Plaintiff to obtain the records sought by the Defendants, in the first instance, so that the Plaintiff's Counsel may vet the documents and determine in his or her view what is relevant, what is privileged, and what is private and confidential or potentially embarrassing to the Plaintiff, if asserted by him, before the documents are delivered to the Defendants' Counsel.
"The Plaintiff generally insists on this type of order, as in this case, while the Defendants wish to avoid what he or she considers to be cumbersome, inconvenient and costly procedures, where the physicians and hospitals very rarely oppose production, and when the Plaintiff is not entitled to such procedure as a right, but must establish a specific and reasonable basis for the Halliday procedure."

The form of the extraordinary document disclosure order derives from the British Columbia Court of Appeal, in Halliday v. McCulloch 1 B.C.L.R. 2d 194 (1986), and as was aptly summarized by Master Scarth in Lutsiak v Morton 2002 BCSC 494 (published at canlii.org/en/bc/bcsc/doc/2002/2002bcsc494/2002bcsc494.html), as follows:

"Halliday v. McCulloch ... sets out the mechanics for the production of hospital records in a personal injury case where there is a claim of litigation privilege with respect to some of the hospital records. In essence a Halliday order provides a set of mechanics whereby the medical records are first sent to the patient-litigant's solicitor so that a claim for privilege from production, or a claim that a document should not be produced .... may be made on behalf of the patient-litigant. Fundamental to the decision in Halliday, however, is the assertion by the patient-litigant of a claim of litigation privilege."

These orders are the exception and not the rule as documents are generally held to be subject to disclosure based on relevancy alone. In addition, a litigant is under an implied obligation to use the disclosed documents only for the purposes of the litigation, although they may be relieved of that obligation by consent or Court order, and not to thereby create mischief for the other side.

However, as relevancy is a wide net, some cases attract document which contain very personal information, such as intellectual property cases, sexual abuse or cases where emotional or mental health care is an issue.


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