Most people expect a lawsuit to be won with a clever question in court. In reality, many Ontario civil cases are shaped much earlier, by a dull-looking sworn list of papers, emails and text messages. It is called an affidavit of documents, and it is the backbone of discovery in the Superior Court of Justice.
The rule behind it can feel counterintuitive. You have to reveal relevant documents that damage your own case, under oath, to the person suing you or being sued by you. Clients often ask whether a particular email really needs to go in. If it is relevant to something in dispute and it is not privileged, the answer is usually yes.
This post is general information and not legal advice. What counts as relevant depends on the pleadings in your own case, so talk to a lawyer about any particular document. Small Claims Court runs on a different and simpler set of rules, and most of what follows applies to Superior Court actions.
The Obligation in Plain Terms
Rule 30 of the Rules of Civil Procedure requires each party to an action to serve an affidavit of documents disclosing, to the full extent of their knowledge, information and belief, all documents relevant to any matter in issue that are or have been in their possession, control or power.
Each of those phrases does some work.
“Relevant to any matter in issue.” The pleadings set the boundaries. If a statement of claim alleges a contractor used the wrong materials, and the defence denies it, then purchase records and site photos are likely relevant. Your unrelated vacation photos are not, unless they show where you were on a disputed date.
“Are or have been.” A document you once had but no longer have still has to be accounted for.
“Possession, control or power.” This reaches past the folder in your office. A document is deemed to be in your power if you are entitled to get it and the other side is not. Records at your bookkeeper’s office, for instance, or statements your bank will send you on request, could qualify.
“Document” is also defined broadly. It includes sound recordings, video, photographs, charts, plans, books of account, and data and information in electronic form. That means WhatsApp threads with a tenant, voicemail files, dashcam clips, spreadsheets and accounting software entries may all count.
The Three Schedules
The affidavit sorts documents into schedules, and getting them right is half the job.
Schedule A: documents you have and do not object to producing. These are the ordinary, non-privileged records. They are usually numbered and listed individually, although a group of similar documents can often be described together if the description is clear.
Schedule B: documents you have and claim privilege over. You must list these and state the grounds for the privilege, but you do not hand them over. Letters between you and your lawyer are the classic example. You describe them in a general way that does not reveal the privileged content.
Schedule C: documents you used to have but no longer do. Here you explain how you lost control of them and where they now are. A landlord who gave the original lease to a former property manager would say so. The rule also requires you to state that you have never had any other relevant document, so the affidavit is a sworn statement about the whole universe of your records.
If you have a lawyer, the lawyer has to certify on the affidavit that they explained the need for full disclosure and the kinds of documents likely to be relevant. That conversation is more than a formality. It is your chance to raise that old phone or a personal email account you used for business.
Privilege: Narrower Than People Assume
Privilege lets you keep a relevant document from the other side, but it has limits.
Solicitor-client privilege protects confidential communications made for the purpose of getting or giving legal advice. Forwarding your lawyer’s letter to a friend or a contractor can put that protection at risk. Litigation privilege protects material created for the dominant purpose of existing or reasonably contemplated litigation. An internal incident report done as a routine matter may not qualify, even if it was later sent to a lawyer. Offers and discussions aimed at settling the dispute may be covered by settlement privilege, which also has its limits.
Simply marking something “confidential” does not make it privileged. Nor does the fact that a document is embarrassing or commercially sensitive. If confidentiality is a genuine concern, for instance with customer lists, there may be ways to deal with it, such as a confidentiality agreement or a court order, but those questions come up after relevance is established.
There is a timing rule to remember as well. If you claim privilege over a document and then want to use it at trial, you must abandon the claim and produce it at least 90 days before the trial starts. Otherwise, you may use it only to impeach a witness or with leave of the trial judge.
Gathering Records Before They Vanish
A lawsuit should change your habits immediately. As soon as you reasonably expect one, you should stop routine deletion of anything that could be relevant, including on auto-delete chat apps, shared drives and old devices. Destroying or losing relevant evidence can lead to serious consequences, such as a court inferring that the record would have hurt your case.
It helps to think through a list like this before meeting your lawyer:
- email accounts, including personal ones used for the dispute;
- text and messaging apps on every phone you used;
- cloud storage and shared drives;
- accounting software, invoices, bank and credit card statements;
- paper files, notebooks, calendars and site logs;
- photos and videos, with the original files where possible;
- records held by others for you, such as your accountant, broker or staff.
Keep original files as they are. A screenshot of a message is less useful than an export showing dates and the whole conversation. Do not edit, rename in bulk, or “tidy up” anything. For a small business in Brampton with a few staff and a shared inbox, it often makes sense to name one person to collect records so the search can be described later.
The Discovery Plan and Proportionality
Before documents are exchanged, the parties must agree on a discovery plan under Rule 29.1 if they intend to obtain evidence through documentary discovery or examinations for discovery. The plan is meant to be settled within 60 days after pleadings close, or a longer period the parties agree on, and before any such discovery begins. It would deal with things like the scope of production, the date for affidavits of documents, how electronic records will be handled and the timing of examinations.
For an email-heavy file, the plan is the place to agree on date ranges, custodians and search terms. A sensible plan can spare both parties thousands of dollars.
Proportionality matters here too. In deciding whether someone must produce a document, a court considers whether the time needed would be unreasonable, the expense unjustified, or the prejudice undue, whether it would interfere with the orderly progress of the action, and whether the information can be obtained elsewhere. The court may also consider whether the volume of documents would be excessive. This is not a free pass to skip a search, but it does give parties a way to push back on demands that outstrip what the case is worth.
Under the simplified procedure in Rule 76, the timetable is much tighter. An affidavit of documents and copies of Schedule A documents must be served within 10 days after pleadings close, and the affidavit must also list people likely to have knowledge of the issues.
Production: Actually Getting the Documents
The affidavit is the list. Production is getting access. Under the rules, a party can serve a request to inspect any non-privileged document listed in Schedule A, or a document referred to in a pleading or affidavit. The other party then has to make them available within five days. In practice, lawyers usually exchange organized electronic copies, often in a shared electronic brief, but the formal right remains.
Non-privileged listed documents must also be available at that party’s examination for discovery and at trial, without any further notice or summons.
Your documents can also carry a restriction. Under the deemed undertaking rule, parties and their lawyers may not use evidence obtained through discovery for any purpose other than the proceeding in which it was obtained, subject to some exceptions, such as consent or evidence filed with the court. Posting the other side’s produced documents online, or passing them on for use in a business dispute, may breach that undertaking.
When the Other Side’s List Looks Thin
Suppose a general contractor’s list has no emails at all for the period in which your job fell apart. You have options, and they get more forceful as you go:
- Write a specific letter identifying what seems to be missing and why you believe it exists.
- Ask about it at the examination for discovery and seek an undertaking to produce it.
- Bring a motion. If a court is satisfied by any evidence that a relevant document may have been omitted, or privilege improperly claimed, it can order cross-examination on the affidavit, a further and better affidavit, or production. It can also inspect a document to decide a privilege claim.
Documents held by someone outside the lawsuit are a separate issue. Under rule 30.10, the court can order a non-party to produce a non-privileged document if it is relevant to a material issue and it would be unfair to make you go to trial without it. The moving party generally pays the non-party’s reasonable cost of producing it.
What Happens If You Leave Something Out
The duty does not end when you serve your affidavit. If you later obtain a relevant non-privileged document, or realize your affidavit was inaccurate or incomplete, you must promptly serve a supplementary affidavit. Finding a box of receipts in the garage six months later is common and fixable, if you deal with it.
If you do not, Rule 30.08 applies. A favourable document that was not disclosed cannot be used at trial without the judge’s permission. An unfavourable one can lead to whatever order the court considers just. If a party fails altogether to serve an affidavit or comply with an order, the court can suspend that party’s right to examine, dismiss the action or strike out the defence. And because the affidavit is sworn, a false one can do lasting damage to your credibility at trial.
Disclosure is rarely anyone’s favourite stage of a case, but it is where many disputes become clearer, and sometimes where they settle. If you have been served in a lawsuit or are getting ready to start one, the firm’s civil motions and applications page covers related court procedure, and you can contact Sawan Law House LLP to discuss how to gather and organize your records. Start by stopping any deletion and writing down everywhere your records live.