Discovery of Documents from Non-Parties – Ontario Civil Procedure

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You may be a party to a civil action where some of the relevant and important documents to your case are in the possession of a non-party. This lecture explains how to obtain relevant documents from a non-party in a civil action in Ontario.

Link to relevant Rules:

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome to YouCounsel.

You may be involved in a court action in Ontario in which some of the important and relevant documents to your case are in the possession of a non-party. A non-party is a party that is obviously, not part of your legal proceeding as a party.  It’s not a defendant, it’s not a plaintiff; it’s not a named 3rd party. It is not part of your court action—it is someone who is unrelated to your court action as a party.  That person (that party) has some documents which are crucial to your case and you want those documents to be produced. You want to get those documents so you can use them as evidence in your trial in support of your case.  How do you go about getting those documents? Today’s lecture explains how this can be done through Ontario’s Rules of Civil Procedure.

This lecture is for educational purposes only.  If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for any referral.

I will explain today’s Rules by way of an example.  I will take the example of a defamation case. Let’s say you have sued a party for making defamatory statements against you.  Your understanding is that some of the defamatory statements were made in writing to a non-party.  The defendant may have sent an e-mail, a Twitter posting, a Facebook message or a text message of any kind and that documentary evidence contains defamatory statements against you.  You want those defamatory statements (that document) to be produced to you so you can use it at trial.  Obviously, you are entitled to get that document from the defendant through the discovery process.  This may be a situation where the defendant may not have that document.  For example the defendant may say that the e-mail was deleted a long time ago and they don’t have any possession of that e-mail.  They may even deny the existence of such an email or such a document but you know that a non-party does have that document and you want to get that document because it is relevant to your case at trial.

This process of discovery of that document is part of the larger process of discovery in a court action. If you don’t understand what a discovery process is, I do have 2 lectures on this topic which will give you a sense of what the discovery process is and how do you get the best results out of the discovery process by getting all the relevant documents (producing all the relevant documents) and obtaining all the relevant documents.  The Rules that deal with the discovery process in the Rules of Civil Procedure are Rules 29.1.01 to 33.08. You can read those rules to understand fully what the discovery process is and watch my lecture on this.

Today we are dealing within the discovery process—the specific issue of production from a non-party.  Obviously, you will try and contact the non-party and request for the production of this document—a copy of that document directly from that party. You can send them an e-mail, make a phone call or write a letter and ask for that.  If they’re provided to you then that’s fantastic—you have a copy of that document. What if they refuse to give you that document?

Then your option is to bring a motion under Rule 30.10. This motion will allow you to get a court order from the court that will compel the non-party to give you the document which is relevant to your case.  In some circumstances the non-party may be willing to give you the document but they will give you the document only if you get a court order.  This may be a scenario where the non-party may respond to you and say that they don’t want to offend the defendant they want to have a good relationship or they have another relationship with the defendant which could be jeopardized by them voluntarily giving you that document but they’re okay to give you the document if there’s a court order—because then they’re simply complying with a court order. In that situation, they don’t have a choice.  That may be a situation where bringing a motion (getting a court order) may be a better way of proceeding to get the production of that document.

What would the court consider in giving you / issuing that order? There are generally 2 things: Number one: the document has to be relevant to a material issue in your case. If it is not a relevant document, the court will not give you the order.  You will have to show the court how that document helps your case; how it is relevant to your case and how if you have that document you will be able to prove one or some of the important points of your case. Secondly, the document should not be privileged.  Privileged document in a very loose way—document can be considered a confidential document.  Privileged document has a specific definition. I may be able to do another lecture and explain to you what privilege documents are but I’m not covering that in this lecture. Some of the privileges could be litigation privilege or solicitor client privilege (privileged documents or documents that are exchanged between a lawyer and his or her client).  There are documents that are privileged meaning that they’re not available to the court unless the court reviews the documents and orders that either they’re not privileged or despite their privilege they must be produced.

If the party (the non-party) says that the documents are privileged, then the court has the power to inspect the documents.  You won’t see the document.  The non-one party will bring the document to the judge and the judge will review the document and determine (a) whether it’s privileged or not; (b) whether it ought to be produced even if it’s privileged. The court may even make an order saying that parts of the document may be redacted and the remaining can be produced as part of the production in this discovery process.  That is all in the power of the court.

What you want to remember is that bringing this motion the procedure to follow is the same that is specified in Rule 37. Rule 37 is a broad Rule that explains to you the process of bringing all kinds of motions in the court system. I have done a few lectures on motions in my channel, so please review those if you don’t understand how to bring a motion in the court system.  The main thing that you want to keep in mind is that if you’re bringing such a motion then you must serve the notice of motion on all parties—all parties that are part of your court action and also serve the notice on the non-party, on which you are seeking the order.  In essence, what you want to remember is that discovery is a crucial process in the process of fighting your case because this process allows you to gather all the evidence that you need to prove or disprove the case.

If you want to prove the elements of defamation, you will need to show what evidence indicates or confirms that there were real defamatory statements made by the defendant against you.  You will have to get all the documents—which is why the discovery process is important. The main thing that you want to get from this lecture is that even if you find that a non-party has documents that are relevant to your case you should not worry about it. This is the process that you use to obtain those documents from the non-party and are able to fight your case in court.

Thank-you for watching.

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