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April 10, 2024
Poor Record Disclosure Bites |
April 3, 2024
History of the Drop-Dead Rule |
March 26 , 2024
The Aims and Results of Costs |
March 18 , 2024
More Troubles Filing and Serving Court Documents |
March 14 , 2024
Precedents About Facts |
March 11 , 2024
Question of Law or Fact? |
February 29 , 2024
Disclosure in Chambers |
February 21 , 2024
Not Attending a Hearing |
January 31 , 2024
The Suggestions Box |
January 2 , 2024
Plain Language for Lawyers |
December 15 , 2023
Limitation Periods Have Shrunk |
November 30 , 2023
Advocacy's Key |
November 28 , 2023
Motions Fritter Away Time and Money |
November 27 , 2023
Will Foreclosure History Repeat Itself? |
November 21 , 2023
Rules of Court Bind Even the King's Bench |
November 2, 2023
Records and Affidavit of Records |
November 2 , 2023
Uncommon Law |
October 20 , 2023
Expanding Judicial Review Evidence |
June 22, 2023
Competition v. Benefits |
June 19, 2023
Clogged Courts |
June 12, 2023
Preparing Applications in Uncertain Conditions |
May 8, 2023
Competence is a Delicate Flower |
March 30 , 2023
Urgent! Very Hard to Meet a Limitation Period |
March 13 , 2023
Parties to Planning Appeals |
March 7 , 2023
Costs in Family Law Litigation |
January 30 , 2023
Dodging Settlement Privilege |
January 4 , 2023
Lurking Dangers and Errors |
January 3 , 2023
Your Real Goals |
December 5 , 2022
Contracts for Higher Costs |
November 24 , 2022
Scope of Offers to Settle |
October 13 , 2022
Checklist for Cross-Examination |
September 16 , 2022
Reviewing Latest Changes |
August 22 , 2022
First Steps in Problem Solving |
July 28 , 2022
Checklist of Powerful Procedural Principles |
March 22 , 2022
Repeating a Cross-Examination Question
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January 25 , 2022
Enforcing Land Sales Becomes Easier |
January 5 , 2022
Proving a Settlement After a Mediation
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November 16, 2021
Types of Injunctions
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October 1, 2021
Orders After Litigation is Over
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August 11, 2021
Discoverability for Limitation Periods
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August 5 , 2021
Releases of Claims
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June 7 , 2021
Language Used Still Matters
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May 17 , 2021
Serving Uncooperative People
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April 15 , 2021
Death and After-Life of Contingency Agreements
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February 22 , 2021
Legal Analysis
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February 2 , 2021
Costs Clarified at Last
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January 4 , 2021
Urgent!
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December 10, 2020
Traps and Confusion in Service Times
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November 24, 2020
Don't Cut Corners
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October 2 , 2020
Consent Orders
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August 4 , 2020
Electronic Hearings
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July 21, 2020
Ceasing to Act
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June 29, 2020
Writing Skills
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June 29, 2020
Keeping Up With the Law
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June 22, 2020
Assets as a Test for Security for Costs
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June 19, 2020
What is This Case About?
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June 11, 2020
Cross-Examining Child Witnesses
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May 20 , 2020
Formal Offers
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May 13 , 2020
Vexatious or Self-Represented Litigants
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January 7, 2020
G.S.T. and Costs
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December 20 , 2019
Electronically Navigating the
Handbook
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October 7 , 2019
Questioning is a Bad Word
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July 29 , 2019
Dismissal for Delay
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May 7 , 2019
Rule 4.31 Fallacies
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March 18 , 2019
More Dangers in Oral Fee Agreements
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February 11 , 2019
Weir-Jones Decisions
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January 9 , 2019
Discouraging Settlements
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November 30, 2018
European Court Helps You Twice?
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November 23 , 2018
Courts Overruling Tribunals
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November 16 , 2018
New Evidence on Appeal
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October 30 , 2018
Schedule C's Role
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July 17 , 2018
Loopholes in Enforcing Settlements
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May 7 , 2018
Enforcement of Procedure Rules
April 16, 2018
Limping Lawsuits are Often
Doomed
April 3 , 2018
Court of Appeal Tips for
Summary Decisions
March 19, 2018
Serious Dangers in Chambers
Applications
February 13 , 2018
Court Backlog
December 18 , 2017
Lowering the Status of Courts
September 15 , 2017
Access to Court Decisions
July 4 , 2017
Strictissimi Juris
June 14 , 2017
Why Don't Your Clients Settle?
June 5 , 2017
Gap in Rules About Parties
June 5, 2017
Personal Costs Against
Solicitors
April 26, 2017
Clogged Courts
April 11, 2017
Dismissal for Want of
Prosecution
January 6, 2017
Incomplete Disclosure
December 15, 2016
Mediation
November 23, 2016
Is Contract Interpretation Law? |
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Welcome
Côté’s Commentaries
© J.E. Côté 2016-2024
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POOR RECORD DISCLOSURE BITES
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The most important barristers’ work before trial is discovery. The most important kind of discovery is the affidavits of records. Most lawyers dislike that task. Some counsel seem to think that the process gives them no benefit. Those lawyers sometimes ignore the personal duties which the law clearly puts on them. Many look for easy ways to dumb-down their searches for relevant records. Most counsel assume that there are no real penalties for doing such a superficial or sloppy job.
But there is a serious penalty: losing the lawsuit. Rule 5.16 says that if you did not list some relevant and material record in your affidavit of records, you cannot later tender it as evidence. That includes trial evidence. So at trial, your biggest gun may have no ammunition. I won’t detail the other grave dangers of drafting and having your client swear an untrue affidavit.
The court can sometimes allow an undisclosed record to be introduced into evidence, but the tests for doing so are very tight. In particular, there must have been a sufficient reason why one did not earlier disclose the record. So lack of diligence when preparing for the affidavit of records is fatal, and the court cannot waive or cure that.
Furthermore, prejudice to the opposing party is also a ground to deny relief and bar the document as evidence. Usually the attempt to introduce the non-disclosed record into evidence occurs at trial. If the judge were to allow it to be entered, that would be surprise to the opposing party. So probably that would require adjourning the trial, maybe allowing further examination for discovery (questioning). Obviously that would be prejudice.
The most recent case barring such trial evidence is ATCO Enr. Solutions v. Enr. Dynamics 2024 ABKB 162, JCC 1601 09573 (Mar 26) (¶’s 44-55). The case is striking, as the trial judge held that the importance and location of the undisclosed records were obvious. Their nondisclosure was never explained, though that company knew about them. Nor does this lawsuit appear to have involved impecunious parties.
– Hon. J.E. Côté
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The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
The Hon. Jean Côté retired from the Court of Appeal of Alberta and would be willing to act as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at:
email: info@juriliber.com or phone 780-424-5345.
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