When seeking production of documents from a non-party, it is important to remember that it is not sufficient to only show relevance; it must also be unfair to proceed to trial without the documents.
In Boucher (Litigation Guardian of) v. Charles, 2013 ONSC 3120 (S.C.J.), the plaintiffs brought a r. 30.10 motion to obtain documents from a non-party, the Special Investigations Unit (SIU). The action arose out of an accident between a cyclist and a police motor vehicle. The SIU conducted an investigation and concluded there were no grounds to lay criminal charges against the officer.
In a r. 30.10 motion for production of documents from a non-party, the moving party must satisfy a two-part test: 1) the document must be relevant to a material issue in the action and, 2) it would be unfair to proceed to trial without having discovery of the document. The test sets a high bar and is permissive rather than mandatory (i.e. if it is met, the Court may order production).
The SIU conceded relevance of all of its documents except for statements from two civilian witnesses who did not witness the event. Master McAfee held that the documents were relevant, but the plaintiffs were not able to meet the second part of the test. The witnesses had not consented to release of their statements, and the statements of witnesses given to police officers had been produced in the police file. Master McAfee also considered the public interest. The efficacy of the SIU's investigative process and its ability to discharge its mandate depends on maintaining the confidence of witnesses.
Master McAfee ordered production of a statement by a deceased witness as he would not be available to testify at trial or to provide consent to release the statement. The plaintiffs were not able to show that they would be prejudiced by proceeding to trial without the remaining documents.
Tampilkan postingan dengan label Production of Documents. Tampilkan semua postingan
Tampilkan postingan dengan label Production of Documents. Tampilkan semua postingan
Rabu, 28 Agustus 2013
Rabu, 23 Januari 2013
Litigation Privilege - Production of Lawyer's Notes of Interview
A recent case deals with production of statements taken by an opposing party. It provides a summary of the principles relating to litigation privilege.
In Hart v. Canada (Attorney General), 2012 ONSC 6067 (S.C.J.), the plaintiff brought a motion seeking production of notes that had been made by counsel for the defendant several years earlier when the plaintiff was a potential witness in another lawsuit arising out of the same factual nexus. The notes appeared to be an almost verbatim translation of the interview. The defendant argued the notes were protected by litigation privilege. The Master ordered the notes to be produced and the defendant appealed.
The appeal was dismissed. Litigation privilege cannot restrict disclosure of an opposing party's statements. Information or statements that are obtained from an opposing party cannot be confidential from that party. To the extent a document is a mere recording of information given by the opposing party, it is not subject to litigation privilege, even though it was created with a view to anticipated future actions; however, if the document contains something more that amounts to a solicitor's work product, then it is privileged. Counsel for the defendant would be permitted to make a proposal to redact certain parts of the document that contained information that was more than simply a record of the plaintiff's interview and statement, such as margin notes, underlining and highlighting.
It appears that the key fact was that the notes contained an almost verbatim recording of the plaintiff's interview. If the notes contained the solicitor's strategies or theories, the outcome may have been different.
In Hart v. Canada (Attorney General), 2012 ONSC 6067 (S.C.J.), the plaintiff brought a motion seeking production of notes that had been made by counsel for the defendant several years earlier when the plaintiff was a potential witness in another lawsuit arising out of the same factual nexus. The notes appeared to be an almost verbatim translation of the interview. The defendant argued the notes were protected by litigation privilege. The Master ordered the notes to be produced and the defendant appealed.
The appeal was dismissed. Litigation privilege cannot restrict disclosure of an opposing party's statements. Information or statements that are obtained from an opposing party cannot be confidential from that party. To the extent a document is a mere recording of information given by the opposing party, it is not subject to litigation privilege, even though it was created with a view to anticipated future actions; however, if the document contains something more that amounts to a solicitor's work product, then it is privileged. Counsel for the defendant would be permitted to make a proposal to redact certain parts of the document that contained information that was more than simply a record of the plaintiff's interview and statement, such as margin notes, underlining and highlighting.
It appears that the key fact was that the notes contained an almost verbatim recording of the plaintiff's interview. If the notes contained the solicitor's strategies or theories, the outcome may have been different.
Rabu, 21 November 2012
Cost of Productions
Who pays for the cost of producing documents?
In Veillette v. Piazza Family Trust, 2012 ONSC 4782 (S.C.J.), the plaintiffs brought a motion to compel the defendant to answer undertakings and refusals he gave on an examination in aid of execution. The defendant took the position that the plaintiffs must pay any charges for obtaining the documents.
The Court cited two cases dealing with production of documents before trial, Ho v. O’Young-Lui, 2002 CanLII 6346 (ON SC), and Traverse v. Turnbull, [1996] N.S.J. No. 212 N.S.C.A. which held that the general rule is the party in possession or control of the documents is to produce them at their expense, although the court has residual discretion to depart from that rule where fairness and justice so require. The general rule may be altered if its application would prevent a party from presenting its case. Justice Kane held that there was no reason to depart from the general rule.
Although this case deals with an examination in aid of execution, disagreement over who pays for documents can often arise in the context of examination for discovery. The Veillette case is useful in providing a succinct argument as to why plaintiffs should bear the cost of producing their documents.
In Veillette v. Piazza Family Trust, 2012 ONSC 4782 (S.C.J.), the plaintiffs brought a motion to compel the defendant to answer undertakings and refusals he gave on an examination in aid of execution. The defendant took the position that the plaintiffs must pay any charges for obtaining the documents.
The Court cited two cases dealing with production of documents before trial, Ho v. O’Young-Lui, 2002 CanLII 6346 (ON SC), and Traverse v. Turnbull, [1996] N.S.J. No. 212 N.S.C.A. which held that the general rule is the party in possession or control of the documents is to produce them at their expense, although the court has residual discretion to depart from that rule where fairness and justice so require. The general rule may be altered if its application would prevent a party from presenting its case. Justice Kane held that there was no reason to depart from the general rule.
Although this case deals with an examination in aid of execution, disagreement over who pays for documents can often arise in the context of examination for discovery. The Veillette case is useful in providing a succinct argument as to why plaintiffs should bear the cost of producing their documents.
Rabu, 12 September 2012
Production of Statements Made Following an Accident
A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.
In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot. The accident occurred at 8:55 p.m.. The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m. At this point, she was aware that two people had been injured. She typed up a statement detailing her recollection of what she had seen and learned of the accident while it was fresh in her mind. The statement was delivered to the adjuster later that day.
On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.
Justice Hockin held that litigation privilege attached to the document. The property manager knew there was an accident and that two people had been injured. She believed that litigation would follow. It did not matter that the defendant was not represented by counsel at the time. The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case.
Privilege was not waived. Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.
Rabu, 21 Maret 2012
Police Personnel File Not Subject to Production
Andrushko v. Ontario, [2011] O.J. No. 3693 (Div. Ct.)
This decision will be of interest to those defending claims against police officers.
The plaintiff was suing for wrongful arrest and assault. He sought production of the officer’s personnel file on the basis that it might reveal a pattern of using unnecessary and excessive force. The Crown resisted on the basis that Part V of the Police Services Act contains a statutory prohibition against production. The motions court judge ordered production.
Part V of the Police Services Act contains the following provisions:
69.(8) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties, except at a hearing held under this Part. 1997, c. 8, s. 35.
(9) No document prepared as the result of a complaint is admissible in a civil pro-ceeding, except at a hearing held under this Part. 1997, c. 8, s. 35.
(10) No statement made during an attempt at informal resolution of a complaint is admissible in a civil proceeding, including a proceeding under subsection 64(15) or 65(17) or a hearing held under this Part, except with the consent of the person who made the statement.
...
1. Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,
(a) as may be required in connection with the administration of this Act and the regulations;
(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information re-lates.
The Divisional Court overturned the lower court decision. It held that any documents prepared as a result of a Part V complaint are not subject to production or admissible in a civil proceeding. If any documents in the personnel file were not prepared directly as a result of a Part V complaint, they would not be protected by its confidentiality provisions.
- Tara Pollitt
This decision will be of interest to those defending claims against police officers.
The plaintiff was suing for wrongful arrest and assault. He sought production of the officer’s personnel file on the basis that it might reveal a pattern of using unnecessary and excessive force. The Crown resisted on the basis that Part V of the Police Services Act contains a statutory prohibition against production. The motions court judge ordered production.
Part V of the Police Services Act contains the following provisions:
69.(8) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties, except at a hearing held under this Part. 1997, c. 8, s. 35.
(9) No document prepared as the result of a complaint is admissible in a civil pro-ceeding, except at a hearing held under this Part. 1997, c. 8, s. 35.
(10) No statement made during an attempt at informal resolution of a complaint is admissible in a civil proceeding, including a proceeding under subsection 64(15) or 65(17) or a hearing held under this Part, except with the consent of the person who made the statement.
...
1. Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,
(a) as may be required in connection with the administration of this Act and the regulations;
(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information re-lates.
The Divisional Court overturned the lower court decision. It held that any documents prepared as a result of a Part V complaint are not subject to production or admissible in a civil proceeding. If any documents in the personnel file were not prepared directly as a result of a Part V complaint, they would not be protected by its confidentiality provisions.
- Tara Pollitt
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