Incomplete Disclosure

Sometimes you form a strong suspicion that your opponent has not made full enough disclosure in its affidavit of records. That suspicion is often wise, as many parties' search for relevant records is very skimpy and ill-informed. But actual evidence that that disclosure is incomplete is usually poor and indirect.

So what should doubting counsel do? Often they at once apply for a further and better affidavit of records, just relying on omission of one or two minor pieces of paper, and some suggestive clues. Likely that is not enough evidence, their application fails, and its only result is wasted time, and having to pay some costs.

(I must use some old terminology here to avoid confusion. The 2010 Rules use the term "questioning" to refer to two separate and very different procedures, both in play here.)

In theory, the topic of incomplete disclosure could probably be investigated during examinations for discovery. But a narrow technical interpretation of the Rule on examination for discovery topics, and "relevant and material", might raise some doubts about whether counsel can examine on that topic. If the party being examined for discovery is a corporation or partnership, its spokesperson examined may well not know anything about his or her employer’s search for records. Besides, the Rules have a wholesome scheme (recommended by a special committee and carried into the 2010 Rules). It is to ensure that discovery of records is accomplished before examination for discovery starts.

The 1968 Rules let an opponent cross-examine the affiant of any affidavit, including an affidavit of records. That type of affidavit was rarely cross-examined on, in practice. Then when the 2010 Rules came into force, it was not even clear that such examination was still permitted. The new Rules dropped the key words which had allowed that. (Being brief and being clear are not the same thing.) Now case law clearly allows such a cross-examination.

Cross-examination on an affidavit of records is often a useful step, better than moving at once for a further and better affidavit of records without much evidence. Cross-examination is also better than waiting for examinations for discovery. A recent decision discusses many of the practicalities of the situation, adding useful advice for counsel: Pacific Investments & Development v. Wood Buffalo (R.M.) (M) 2016 ABQB 643, JCC 1401 09551 (Nov 17). The case is not long, and counsel would benefit from reading at least the first 60% of it.

– Hon. J.E. Côté