Matt Maurer's blog in Slaw - Canada's online legal magazine

At the outset of a file I ask my clients for all of the documents they have that are relevant to the lawsuit. Usually they respond by asking me exactly what I want. At this point I explain to them that they are obligated under the Rules of Civil Procedure to disclose any document that they may have (or formerly had) in their power, possession or control that is relevant to the lawsuit. “Whether it helps you, or hurts you, if it is relevant we need to disclose it.” is something I have said on many occasions and it’s true… unless the lawsuit is for $25,000 or less and thus falls within the jurisdiction of the Ontario Small Claims Court.

The Ontario Rules of the Small Claims Court effectively allow a litigant to conceal a document in his or her possession that is detrimental to his or her case.

There are essentially three rules relating to documentary disclosure in the Small Claims Court which, in short, provide for the following:

(a) If your claim, defence or counterclaim is based in part or whole on a specific document you are required to attach a copy of the document to your pleading (See Rules 7, 9 and 10);

(b) Prior to the Settlement Conference (aka the Pre-Trial Conference), the parties must serve and file any document to be relied on at trial that is not already attached to the pleading (Rule 13.03(2)); and

(c) Any document served at least 30 days before the trial date shall be received in evidence, unless the trial judge orders otherwise (Rule 18.02).

Clearly, litigants are only required to disclose documents that they intend to rely on as opposed to any that are relevant. Am I the only one confused and ethically torn by (of all things) the Ontario Rules of the Small Claims Court?

To view the article on Slaw click here.