The Omission

When litigation is engaged, discovery is essential. It serves as so many purposes fundamental to justice. It allows each party to fully see the documents, videos, audio recordings, pictures and all other forms of evidence that will be played against them in court.

Many a case is settled at the discovery stage as once a party see the evidence against them, they are often prepared to compromise. Discovery also prevents the injustice of ambushing someone with a compromising photograph or document in the Courtroom.

One of the terrible omissions of common law justice systems is to inadequately provide for disclosure in hearings that proceed on the basis of affidavit evidence only, aka hearing that occur in Chambers. Chambers is a regular courtroom but a venue for short, procedural or expedited hearings, where the judge is not wearing a gown and the evidence flows exclusively from affidavits and is packaged by a lawyer. No witnesses are heard from viva-voce.

In most common law jurisdictions, specific legal actions must be fast-tracked by requiring that they be disposed of in Chambers. The public policy behind requiring this is expeditious justice but the obvious downside is that the evidence is presented in affidavit form, not normally subject to cross-examination (see Cross-Examination on an Affidavit: Chambers On Trial) and there are no clear rules of disclosure.

The Rules of Court of most jurisdictions codify comprehensive rights of discovery extended to litigants as they prepare for trial. Generally speaking, those rules do not apply where the legal proceeding is commenced by originating application, aka petition.

In litigation proceeding by way of trial, the rule could not be simpler: any relevant document must be disclosed to the other side. But in those proceedings which are not started by a writ of summons, and in which the evidence is presented by way of affidavits, subjected to a chambers hearing, summary trials, matters presented to the court by way of petition or originating application, the litigants are substantially orphaned to what they have as far as discovery goes.

Band-Aid Solution

The first source of law is always statutory and so one looks first to the rules of court. As stated above, the rules of court provide strong and clear disclosure to litigants proceeding by way of a writ or subjected to a statement of claim.

The Rules of Court might provide for some form of document disclosure in matters which proceed by way of a petition, in which the issues are judicially determined upon affidavit evidence.

document discoveryFor example, in the Canadian jurisdiction of British Columbia, circa March 2010, §52(8)(c) of the Supreme Court Rules, provides:

“On an application, evidence shall be given by affidavit, but the court may ... give directions required for the discovery, inspection or production of a document or copy thereof....”

The presence of the word may means that disclosure depends upon the discretion of the judge.

In Wilkie, the Court considered this rule and wrote:

“The Rule is discretionary and should be applied weighing the degree of relevance to the issues arising on the application and factors of comparative prejudice. In the context of the continuing proceedings under the Mareva injunction, the issues arising would seem to be the likelihood of removal of exigible assets from the jurisdiction, the sufficiency of security and the prejudice to the defendant through the freezing of assets. In my view full disclosure of material is necessary to permit the full cross-examination ordered by the Chief Justice. The material can be made available with little prejudice to the defendants and accordingly the order should be allowed.”

Inherent Jurisdiction

In addition to the statutory provisions as set out in Court rules, Canadian superior-level courts can defer to their inherent jurisdiction to provide a small measure of disclosure rights to litigants caught within proceedings that are to be disposed of in Chambers.

In McPherson, Justice Macdonald wrote:

“The institute questions the right of McPherson to discovery of any kind in proceedings which are not commenced by writ of summons. It submits that the order which McPherson seeks is tantamount to an order for discovery of documents under ... the Rules of Court, which is not applicable to proceedings commenced by petition. I agree that (the Rules of Court which require full disclosure) applies only to actions; a proceeding ... commenced by petition is not an action.

“However, a judge of this court has an inherent jurisdiction to order the production of relevant documents in any proceeding before it. Where the existence of relevant documents is known, the court will not deprive itself of access thereto if there is no other bar to their production. While an order for production based on the inherent jurisdiction of the court would normally be much less broad than an order for discovery of documents under (the Rules of Court), it is simply a means of ensuring that the court is able to control and regulate its own procedure.”

But the courts maintain an inappropriate high threshold on these applications.

Relevance, it seems, is not enough.

In Nechako, the matter had proceeded to court by petition. The petitioner sought a certiorari against the government and applied for an order that the respondent produce all documents related to the contested government action. Again, the applicable principles of law were set out by the court, Justice Drossos presiding:

“The petitioner has no right of discovery of documents in proceedings commenced by petition ... as it does under ... the Rules of Court ....

"However, since the Court has inherent jurisdiction to order discovery of documents in any proceedings before it, the petitioner may seek the exercise of the Court's inherent jurisdiction to order disclosure, but such is narrowly applied and is much less broad than a discovery of documents under (the Rules of Court). Where the existence of relevant documents is known, the Court will not deprive itself of access thereto if there is no other bar to their production. An order for production is simply a means of insuring that the court is able to control and regulate its own procedure.

“Before the petitioner can trigger the court's discretion to order discovery of documents, the petitioner must first establish a basis, especially where on the issue of an order in council everything is presumed to be rightly and duly performed, until the contrary is shown. Mere allegations are not enough. A factual basis or framework is required; otherwise to embark on a general inquiry ... pursuant to an unsupported request, allegation, or statement that the petitioner in order to make out its case requires documents, which may or may not exist, solely in the possession or control of the other party, would open the door to what is often termed a fishing expedition. This the Courts have refused to do.”

Conclusions

Litigants caught in the Chambers track of litigation have limited disclosure rights. This is the price they pay for expedited justice.

But it can be a brutal cost as litigants have to throw themselves into the fray partially blindfolded as to what will hit them, and reasonably wary of far too many judges that think it’s manly to deny a request for document disclosure in Chambers and to use those deadly words fishing expedition.

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