Hiding the Smoking Gun? No Problem, as Long as You’re in Small Claims Court

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?

Comments

  1. Matt
    There does seem a problem although the court may have a way around it.
    On a related matter, here in Australia discovery usually consists of getting all the documents then searching for the relevant ones – it is a needle on a haystack. A colleague and I suggested to the Australian Law Reform Commission that a better way to go is first to define the issues then request the documents relevant to the issues – that is ask directly for the needle instead of searching a haystack. At the same time give a party the right to question an opponent about what documents they do and do not hold.
    The Australian Law Reform Commission, with 4 out of 5 members as judges, totally ignored this suggestion in the report on discovery.
    best regards
    Chris

  2. David Cheifetz

    Mr. Maurer,

    It seems to me you’ve confused the rules on production with the obligations of lawyer not to mislead the court or allow the court to be mislead. The latter trump.

    (Litigants are not supposed to mislead the court, either, but …)

    The situation you’ve described is what the rules of discovery and production were in the superior courts, supposedly, once upon a time (meaning before before the current rules).

    The ancien regime (accent on the “e” implied, and a bunch of other things, too)relied on the integrity of the lawyers involved. Many here who are old enough to remember that once upon a time probably recall wondering, sometimes, what was being hidden. It appears that there were (and likely still are) different views on what amounts to misleading and proper disclosure.

    At least in civil cases, if you lead evidence, it’s realistically impossible to avoid misleading the court if you’re hiding documents that could be relevant. It’s possible to cross-examine without transgressing, but you need to be very careful.

    There’s a simple solution for the lawyer to what you’ve described as the ethical problem you believe is created by the Small Claims Court rules.

    Don’t take the case if your client won’t agree to full disclosure AND complete honesty.

    (Cue Pollyana)

    DC

  3. David,

    Thanks for your comment. You’ve raised a point that I was hoping my post would generate.

    I’m aware of our obligations not to mislead the court. But we also have an obligation to advance our client’s case as effectively as we can within the guidelines of our system.

    If the Small Claims Court does not require us to produce every relevant document are we doing our client a disservice by telling them to produce harmful documents?

    What if the lawyer is not aware of the hidden document. For example, what if I tell my client to give me every document that they wish to rely on and make no inquiries as to what further (harmful) documents they may have?

    Do we have an ethical obligation to seek and obtain full disclosure when the Rules do not yet require us to do so? Can we be willfully blind?

    While the majority of my practice is in the Superior Court, I am routinely frustrated with disclosure when I do happen to have a Small Claims Court case. If my opponent elects to pick and choose which documents they want to produce there is no real mechanism for me to force production, absent seeking an Order at the Settlement Conference (which is often easier said than done and rests on the assumption that you know documents are “missing” to begin with).

    Matt

  4. Am I supposed to take this post seriously?

    I mean really?

    Small Claims Rules *copy/paste*

    Matters Not Covered in Rules

    (2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 78/06, s. 3.

    Well gosh golly gee, for those lawyers who NEED to be referred to it, let’s take a gander on over at Rule 30 of the Rules of Civ Pro

    “SCOPE OF DOCUMENTARY DISCOVERY

    Disclosure

    30.02 (1) 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 as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. R.R.O. 1990, Reg. 194, r. 30.02 (1); O. Reg. 438/08, s. 26.”

  5. @KJ Rule 1.03(2) is discretionary (note the use of the word “may”) and requires a positive direction from the Court; therefore, can it really be said that Civil Procedure Rule 30 automatically applies in the Small Court context? Is it suitable that counsel should have to seek directions of whether the dislcosure Rule every time they act in a Small Claims Court case?