Evidence – give your lawyer everything !

You watch these legal tv shows and it never fails, at the end of the episode, during Trial, BAM! There’s a document that one of the lawyers had in its’ possession, or there is a key witness who just happened to re-appear, and it changes the whole outcome of the Trial.

Well, that’s not the way it works here in Ontario.

When starting an action in Ontario, the first steps that happens after a claim is served, and the defendant(s) defend, is the Discovery process.

The Rules of Civil Procedure state that within sixty days from the close of pleading (when defences and reply’s are served), the parties shall agreed to a Discovery Plan.  A Discovery Plan sets out the timing for delivery of the Affidavit of Documents as well as completion of the Examinations for Discovery and answering any undertakings.  This is agreed to between counsel and sets a timeline for the Discovery process.

The scope of documentary discovery, as set out in the Rules, is:

“Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed…”

When providing documents to lawyers regarding your matter, you must take into consideration all of the documents, texts, emails, handwritten notes etc. that you have, or once had, that relates to the matter.  You can’t pick and choose what documents you feel are relevant.  Everything must be produced to your lawyer, even if it doesn’t help your case.  You can’t provide little snippets of document, you must provide everything.  It’s up to your lawyer to review and produce only what is relevant.

The purpose of the Affidavit of Document is to disclose to the full extent of your knowledge and all documents relevant to the matter that is in your possession, or was in your possession.  If you believe you had a document, but no longer have it, your lawyer also has to advise the other side of those as well.

So when we ask for all your documents, do not go through them and purge what you think is relevant.  That’s the lawyer’s job and it’s better we get everything out in the open at this stage in the matter.  it’s never a good idea to hold back only to find out that you had something that you didn’t think was relevant, but in fact was vital.

Christine Allan, Law Clerk