Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture we will discuss the exchange of affidavit of documents—which is a required step in any civil action in Ontario.  We will discuss this in the context of Rule 76, which is a specific Rule that simplifies certain procedures in a civil proceeding in Ontario.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

Rule 76 is also called Simplified Procedure. It is in contrast to ordinary procedure that covers all other kinds of actions under the Rules of Civil Procedure. We have previously done two videos on Rule 76.  If you haven’t watched those, I would suggest that you do because those videos deal with some of the basic concepts of Rule 76.  Generally speaking what I can restate today is that Rule 76 usually deals with matters of money that are $100,000.00 or less.  If you are suing someone for $100,000.00, then Rule 76 is a better option for you rather than the ordinary procedure. You can also sue someone for more than $100,000.00 under the Rule 76 but there are certain ways to do that—and for that I would suggest that you review the other two lectures.

What you want to remember regarding Rule 76 is that the process is faster; it is simpler and it is cost efficient. Whenever possible, if you are the plaintiff, if you are commencing a court action, and if you can bring it under Rule 76, then I would recommend that you do so.

What are the basic steps? They are similar to any other court action. You serve and file your pleadings; then you exchange affidavit of documents; you conduct examinations for discovery; if the mediation applies in your area (if it’s mandatory), then you should conduct a mandatory mediation; you attend a pretrial conference and then you take your matter to trial if it has not settled by then.

Today we will talk about affidavit of documents which is Step 2 in this process.  Affidavit of documents is covered under Rule 76.03.  What does an affidavit of document contain? (a) It’s a sworn affidavit.  (b) It contains all documents relevant to any issues in the action.  I have underlined the important words in this. (i) All documents—means you cannot be selective about what documents you will produce. If documents are relevant (whether they are favorable to your case or unfavorable) you’re required to produce those documents. That indicates all documents.  The term document contains all kinds of things it’s not just paper document; it could be e-mails; faxes; text messages; videos; audio recordings; any tangible or even intangible in electronic form document will be considered a document.  A document has a very, very broad meaning—any piece of evidence that is other than oral is generally a document and you ought to produce it.

Now coming to the word (c) relevant.  A lot of ink has been spilled in explaining what is relevant and what is not relevant in court cases. I will not get into the details here.  We may do another lecture but what you want to understand is that the word relevant is a recent word in the Rules of Civil Procedure.  Few years ago, in the previous Rules, the word that was used was related documents.  There is a difference between related documents and relevant documents. Related documents were considered to be more broad—anything that was related—it may not be directly relevant to the issues.  That was the language.  It encompassed a lot more documents than the document that could be relevant to the specific issues.  The Rules were amended and now the Rule says relevant to any issue.  These are the documents that are relevant to the issues in an action.

What would be relevant? If a document proves or disprove any of the issues in your action then that document is relevant.  That is the broad definition you want to keep in mind.  As I said, there are many, many cases in which parties have fought about what is a relevant document and what is not a relevant document. 

The third part that you want to remember is: relevant to (d) any issues in the action. Let me explain that by way of an example. If A has borrowed money from B and has not returned it to B. B has sued A  for a refund of that money.  Let’s say in that process (in that court action) in the Statement of Claim, B says that there was an e-mail sent by A in which A promised that he will pay the money back by so and so date. Let’s say that is a factual statement that has been made in the Statement of Claim. The existence of that e-mail is a factual issue and the content of that email is also factual.  If you have that email, it does show or does prove whether the email was sent or not or was exchanged. And secondly, whether the email stated exactly what you are claiming.  In that situation, that particular email is a relevant document and you cannot be selective about choosing not to disclose that email—you are required to disclose that email—even if that email has certain contents that are not favorable to the balance of your claims but that email is relevant. All documents relevant to any issue in this action need to be produced.  That is the general theme that you want to remember. We will try to do a separate video on this to explain this to you in more detail.

What forms to use to prepare this affidavit of documents? If you are an individual party, then you use form 30A.  If you are a corporation or partnership then you use form 30B. There are 4 schedules in the affidavit of documents.  Let me quickly show you the form and see if we can explain this to you through that form. This is the form. You can download it. It’s available online; just type in Rules of Civil Procedure forms and you will find this 30A is there. You fill in the information about your name, where you live.  Paragraph 1 is important. This is what you state in your affidavit “I have conducted a diligent search of my records and have made appropriate enquiries of others to inform myself in order to make this affidavit”.  You are basically stating in this affidavit that you have done everything you could to find all the relevant documents—either in your own possession or if you had to talk to someone else about it, you did so and that is why this affidavit discloses “to the full extent of my knowledge, information and belief all documents relevant to any matters in issue in this action that are have been in my possession control or power”.  

The documents that you are disclosing are the documents that you have in your possession and the documents that you have lost possession of or you had possession once and you no longer have those documents—those are the things that you explain in Schedules A, B and C.

Schedule A basically lists all the documents that are in your possession and you do not object to producing those.

Schedule B: are the documents that you do have in your possession; they’re relevant to any issues in this action but you’re objecting to producing those because they are privileged—maybe you spoke to a lawyer; maybe you discussed your legal options with a lawyer and in that you discussed some of the aspects of your case—those are the documents that you don’t want to disclose. You basically state what those documents are—but then you say I am not disclosing these because these are “privileged” because of “solicitor client relationship”.  

Schedule C includes those documents that you had in your possession but you no longer have those documents. If you have lost those documents, then you state that. If those documents are held by someone else then you provide that information. You basically explain why you do not have those documents anymore in your possession.

Under Rule 76 you have to provide a Schedule D, which states the names and addresses of any person who might reasonably have knowledge of your case or the transactions. It does not have to be just the witnesses who are going to support your case but any person who is reasonably expected to have knowledge of the issues in your case. You have to put the name of that person and provide their address.

 Lawyer’s certificate: If you are a self-represented party, you don’t need to provide that. You attach your schedules to it and you swear and sign this affidavit in front of a Commissioner for Oath Taking or a notary public or a lawyer.

Four Schedules A, B and C: You make sure that they are in your affidavit of documents.

What is the timeline for the service of affidavit of documents? It is within 10 days after the “close of pleadings”.  If you have reviewed my previous lectures, “close of pleadings” means that you have either served the reply in your action or received the reply in your action or the time for the delivery of reply has expired.  That is the date when the pleadings are closed.  You have 10 days from that time line to serve your affidavit of documents. As a practical matter I have never seen any counsel follow this timeline (10 days) in my entire 11 years of practice—I have never seen that happen but that is not to say that you cannot ask for it—especially if you are the plaintiff and you need to move your action fast and forward you should be ready to serve it within 10 days and then demand from the defendant (the other party) that they should serve their documents within the time lines in the Rules of Civil Procedure.

What is it that you need to serve? You need to serve the affidavit of documents and copies of documents in Schedule A. Why I’m emphasizing this? Because in the ordinary procedure you only serve the affidavit of documents and then the copies of documents you are not required to add this at the same time.  What happens with the copies of documents is that if the other side demands copies of the documents, then there is a cost for the production of those documents and the other side will pay you for that cost and then you provide copies. In this case under Rule 76, you have to do this at your own expense. The Rules are very specific—at your party’s own expense, you have to serve the affidavit of document and copies of document in your Schedule A.

What you want to carry from this lecture is that exchanging affidavit of documents is a crucial step because it contains all the relevant documentary evidence on your side and on the other side.  It’s a very important step that enables both parties to assess the merits of each other’s case because now you’re looking at the documentary evidence and matching their claims to their position—whether their position is actually proven by the documents that they have provided or you have provided. It also enables parties to conduct effective examinations for discovery because all the relevant documents have been produced. Now you can examine the other side to elaborate on their position through those documents or explain the things where there are gaps in their position that you can find through your examination for discovery.

We will try to cover affidavit of documents in more detail.  We will pick up each section, maybe, Schedule A and do a separate lecture.  Then, similarly, on Schedules B, C and D. But for now I believe this gives you a good sense of how you prepare your affidavit of documents and then what is the timeline to exchange your affidavit of documents.

Thank-you for watching.