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Lecture Slides:

Welcome to YouCounsel.

In our previous lecture we had explained what is an affidavit of documents and when does it need to be prepared and produced.  In this lecture we take a step further and explain how you determine which documents are relevant and ought to be disclosed in your affidavit of documents.

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

Rules 30.03 and 76.03(1) of the Rules of Civil Procedure discuss affidavit of documents and explain what should be contained in that affidavit of documents. We have explained that in our previous lecture.  If you haven’t watched it please do so before reviewing this lecture. Broadly speaking the Rules require that parties should (a) disclose all documents in the parties knowledge, information and belief. These documents should be (b) relevant to any matters in issue in the action.  They (c) are or have been in the party’s possession control or power or have been in the past in party’s possession control or power.  All of those documents ought to be disclosed in the affidavit of documents.  Once again, please review our other lecture.

In today’s lecture we’ll talk about how you determine which document is relevant? And, which document is not relevant?  This could be described as Relevance Test. There are a number of definitions that have been set out in various court cases.  We have picked a few just to give you a flavor of how the courts have explained relevance in different contexts.

    1. First example: “… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.”

That’s one example. I’ll let you think about it and come back to it and read it again.

     2. Another example: “For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter”.

    3. One more definition: “… requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”. If it does, then “Fact A” is relevant to “Fact B”. As long as “Fact B” is in itself a material fact in issue or is relevant to a material fact in issue in the litigation, the “Fact A” is relevant and prima facie admissible.”

   4. One more example and I’ll have one more in the end: “Any document which directly or indirectly may enable a party to advance his own case or destroy that of his adversary, or which may fairly lead to a train of enquiry to disclose evidence which may have either of those consequences, must be disclosed”.

    5. And finally: “Relevance is based on the parties’ pleadings.  To determine if the documents sought are relevant, I must decide if the documents sought tend to prove or disprove a proposition or fact advanced in the parties’ pleadings.”

I have given you all these examples so that you can repeatedly read them.  These are quotes from actual court cases.  You can understand that courts have defined relevance in so many different ways once you complete the reading, you may come to the understanding that all of these definitions are more or less the same. But I can tell you that they are not. 

The courts have defined relevance differently and that is why it is important for you to understand how the relevance test is actually applied.  All of the definitions that are given—not all of them are uniform—not all of them are considered equal.  To properly understand relevance—I believe one way to do so is to understand the history of relevance test.  In the past in Ontario, the test for relevance was called “Semblance of Relevance”.  As of 2010, the Rules were amended.  Now the test is simply “Relevance”.  The difference between the two is very simple.  In semblance of relevance the documents that were considered relevant were viewed broadly. If there was any chance (any semblance) that the document could be relevant to the issues in that court action, then they will be considered relevant. 

In 2010 (the court) the Rules have narrowed the definition of relevance of the documents—they must be relevant to the issues or to one of the issues or any of the issues in the litigation.  If they’re not relevant, then it’s not a matter of they could be or there is a semblance of relevance.  The definition is narrow and there were a few reasons for changing these Rules.  Some of the reasons were that the courts did not want parties to conduct fishing expeditions (go looking for evidence that may not even be relevant)—trying to find out a case / trying to find out evidence to support their position or destroy the other party’s position—because it took longer; it cost more; and it may have been disproportionate to the case that was before the court. That was one reason.

The other reason was the courts wanted to deal with issues efficiently.  The narrower the definition is, only the relevant documents will be produced and the documents that are irrelevant will not waste court’s time unnecessarily, parties time, money and effort in wading through all those documents that could not be relevant to the issues.  In any event the definition was changed. What you want to take away from today’s lecture is that the definition now is narrower—either the document is relevant or it’s not. The semblance of relevance test is no longer there.

On that basis, I want to go back.  As I said when you review those definitions that I gave you there’s one definition, this one that I read (#4 above):  

“Any document which directly or indirectly may enable a party to advance his own case or destroy that of his adversary, or which may fairly lead to a train of enquiry to disclose evidence which may have either of those consequences, must be disclosed”.

Now this is I believe—when I read all these definitions, I did not find this definition to be particularly different than all of the other definitions that I read.  Apparently, the courts have stated that this definition is different.  It is too broad. It was from one of the British Columbia court cases which was quoted in one of the Ontario cases. One master relied on this definition and decided on certain relevance of certain documents.  When the case was appealed, the court overturned the Master’s decision and basically said that this particular definition is related to ‘semblance of relevance test’ not the ‘relevance test’ which is presently in force in Ontario.

The next definition that I picked up which, I honestly believe, is not much different than the one that I just read is this one. This is from a 2019 case (#5 above)—which basically says that “the document tends to prove or disprove a proposition or fact advanced in the party’s pleadings then that document is relevant”.  This is probably the simplest way to look at it.  If you have stated a fact or there is a fact in your pleadings or the other parties’ pleadings, then you look at the document and then you determine whether that document proves any of the things that are stated in that pleading.  If it is not, then, if it advances that position confirms, or denies it—then it is relevant. If it doesn’t do anything to that particular statement or position then it is not considered relevant.

How do you figure out all of this?  As I said the definitions are not uniform.  We talked about the history.  Then determining relevance is really a practical matter. If you have done this for a few years like lawyers do, then it is relatively easier for you to determine which document is relevant and which is not.  There are a number of fights about these issues that happen in courts all the time and that is simply because 2 parties using their common sense, using their experience may not agree on what document is relevant and what is not.  It’s really a practical matter.  The court uses experience and judgment to determine which document is indeed relevant.

Let’s give you an example so that you make be able to get some sense of which document could be relevant.  Let’s take a fact. We assume this fact is part of a party’s pleadings. The fact says: “The defendant delivered its invoice by e-mail to the plaintiff on January 3rd 2019”. This is a fact that has been stated. If the other party challenges it / disputes this fact, then this fact needs to be proven. If this fact needs to be proven, then that particular e-mail that we’re talking about here, is a relevant document. It ought to be disclosed because this e-mail is the one which attaches an invoice and it was sent on January 3rd by the defendant to the plaintiff.  The e-mail in a very simple commonsensical way is a relevant document that ought to be produced.  Now let’s say the defendant had sent another email to the plaintiff (on the same day) on a different matter not enclosing an invoice but on something else.  Is that e-mail relevant? No. It’s not relevant as far as this particular fact is concerned because the existence of the e-mail / the content of that e-mail as long as it does not contain that invoice, does not on its face provide / support this fact in any way.  That e-mail (that second e-mail) could be relevant on some other issue.

For example, that e-mail could state (let’s say that the parties in this case—the plaintiff advances a position that the plaintiffs and the defendant had never communicated by e-mail). Let’s say that is one position that has been advanced by the plaintiff.  In that instance the second e-mail becomes relevant because that is an e-mail that actually challenges / disputes that position offered by plaintiffs because it proves that there was an e-mail that was sent by the defendant to the plaintiff.

You essentially look at the fact that has been pleaded by you or by the other side and look at the evidence and then figure out whether the issues in that pleading are advanced, challenged or in any way connected to that particular document.  If that document proves or disproves that particular fact or position then that document is relevant.

What to take away from today’s lecture? (a) 1st of all when you’re drafting pleadings you have to be extremely careful. You have to very accurately state your facts because whatever you state / whatever position you advance, remember that you will have to prove that by evidence either documentary evidence, viva voce evidence—but you have to prove it.  You want to make sure that your pleadings are accurate in terms of the evidence that you’re going to later provide.

(b) You also want to carefully review the other party’s pleadings because when you review your own documents or other sides documents you may be able to find a discrepancy in their pleadings and their evidence.  You will be able to challenge their position, the facts or position by relying on that particular piece of evidence. 

(c) Also do not to forget that when you have this obligation to disclose all these documents, you want to carefully assess all the documents to make sure that they are relevant and you are disclosing all those documents. (d) A related and important rule that you want to keep in mind is Rule 30.05 which says that “disclosure or production of a document shall not be taken as an admission of its relevance or admissibility”.  What this Rule does is that if you want to err on the side of caution and produce documents that you believe may be relevant, i.e., you’re not sure but you disclose them any way—that does not mean you are taking the position or you are admitting that the document is indeed relevant.  This particular Rule saves you from that position.  The other side will not then hold you accountable and say because you disclosed this document you have confirmed the admissibility of that document as a relevant document or you want this document to be admitted as evidence—that is not the case.  There is no deemed relevance or deemed admission just because a document has been disclosed.  That means that if you err and include documents that you were not sure about (they were relevant or not), that will be fine at trial.  You can state the position that you believed the documents were not relevant.

This is a complicated area as I said.  Two lawyers cannot agree at times on what documents are relevant / what is not, but at least it gives you a line of thinking in terms of how you figure out when you’re looking through your documents or the other sides’ documents to make a determination whether the documents are relevant or not.

Hopefully this was helpful.  We will bring more lectures on these topics as we go along.

Thank-you for watching.