CHAPTER 16 Civil Litigation
DISCOVERY PROCESS In civil proceedings in Canada, the nature and scope of a dispute are defined by the pleadings delivered by the parties. The pleadings consist primarily of the documents referred to above: in Ontario, a statement of claim and statement of defence if the proceeding is an action, and a notice of application if the proceeding is an application; in Québec, an originating application and a statement (oral or written) of defence. Pleadings are concise statements that set out (or plead) all of the material facts to a dispute; they are intended to define the scope of the relevant issues in the proceeding. Documentary Discovery In Ontario, every party to an action is required to produce to all other parties all relevant documents within its power, possession or control, except documents protected by privilege. The documents are accompanied by an affidavit of documents sworn by the party. The affidavit encloses a list of all relevant documents and states that, after a diligent search of that party’s files and records, those are the only relevant documents to be produced. The definition of “documents” includes paper documents, emails, computer files, tape recordings, videos and electronic media. The definition of “relevance” is also broad. Privileged documents are generally those that are created for the purpose of giving or receiving legal advice. Where legal advice of any kind is sought from a lawyer, the confidential communications relating to the giving or receiving of such advice are permanently protected from disclosure in litigation unless the client waives the protection. This is known as “solicitor-client privilege.” Documents that are created for the dominant purpose of actual or reasonably contemplated litigation are also protected by a form of privilege known as “litigation privilege.”
In Québec, the exhibits in support of a judicial application must be listed in the summons to the defendant (and then subsequently delivered to the defendant) or delivered to the defendant concurrently with the originating application. In addition, each party may make requests to the other to produce specific and identifiable relevant documents. Subject to privilege and the rules of admissibility of evidence, the parties are required to provide copies of the documents requested. In both Ontario and Québec, the court may order third parties to produce relevant documents before trial, if it is in the interests of justice to do so. Oral Discovery In both Québec and Ontario, a party is allowed, prior to trial, to ask the other party questions out of court and to have the questions and answers officially recorded by a stenographer. The official transcripts of these examinations may later be put into the trial record (subject to certain limitations) and may also be used to impeach a witness on cross-examination at trial. A party is normally entitled to examine only one representative of the opposing party, unless the parties consent otherwise. In exceptional circumstances the court may grant leave to examine multiple representatives. Objections may be made by the parties during oral discovery. Such objections may then be submitted to a judge for adjudication. In both Ontario and Québec, written interrogatories (whereby questions are asked and answered in writing) are available in place of oral discovery, but are used infrequently.
151
Davies | dwpv.com
Powered by FlippingBook