Myth #1: Disclosure and production are
interchangeable terms
Disclosure is advising of the existence of a document; production is actually
providing the document.
Myth #2: You need to disclose all
documents within your possession
The court rules require a party to litigation to only disclose and produce
documents that are relevant to a matter in issue within the action.
However, it is good practice to preserve all documents because you never
know what will become relevant and helpful if you litigate a dispute. It is also
good practice to provide all documents to legal counsel, so they can determine
what must be disclosed.
Myth #3: If you disclose a document, you
are admitting to the truth of the document
and its contents
Disclosure is part of the discovery process that allows both parties to assess
the strengths and weaknesses of their, and their opponent’s, respective case
before court applications and trials. The truthfulness of documents will be
determined by the court during the actual proceedings, which is after the
documents are admitted and accepted by the court.
Myth #4: If you don’t disclose a document
prior to trial, you can still produce the
document at trial to support a claim
In Canadian civil trials, we do not have what is often referred to as “trial by
ambush.” Instead, there is a positive duty to disclose and produce all relevant
documents. Pursuant to the court rules, if a party fails to disclose a
document during the course of litigation, that party will be prohibited from
relying on the document at trial, unless the other parties agree or the court
grants permission because there was sufficient reason for the failure to disclose
the document.
Myth #5: Once you disclose and produce
your documents, you are not required
to disclose any new documents you
discover, even if they are relevant to an
issue in the dispute
Parties to litigation have an ongoing obligation to disclose and produce
documents during an action. If you discover documents after your initial
disclosure, you must still disclose those documents, especially if you want
to rely on them at trial.
Myth #6: Document management and
preservation should begin immediately
after a dispute arises
Proper document management and preservation practices should commence
at the beginning of a project. It is more strategic to proactively manage
and preserve documents, as opposed to waiting for a dispute to arise
and then scrambling your company, employees and management to locate
the relevant documents at the last minute. Further, proactive document
management and preservation can greatly reduce legal costs because
counsel can more effectively understand the relevant issues, and it can even
assist your ability to identify disputes earlier in a project before damage
is done.
Being prepared
While the above myths mainly relate to document disclosure and production
during litigation, you should be aware of the very strict, and very short,
disclosure and production deadlines under the new Prompt Payment legislation.
As mentioned, once a dispute is sent to the Adjudication Authority,
documents must be disclosed and produced within just five days.
Construction companies in Saskatchewan should assess whether they
have an adequate system to manage and preserve project documents to
ensure they are capable of complying with the new deadlines under the
Prompt Payment legislation, so they can enforce their rights and pursue all
legal remedies, such as receiving payment for unpaid invoices.
If you have any questions about Bill 152, the Prompt Payment process, court
rules regarding document management and preservation, disclosure and
production or general questions about construction law, please contact Troy
Baril, a partner with Miller Thomson and a member of the firm’s Saskatchewan
Construction Team at tbaril@millerthomson.com or 306-667-5630.
Disclaimer: This publication is provided as an information service and
may include items reported from other sources. We do not warrant its
accuracy. This information is not meant as legal opinion or advice.
CONSTRUCTION LAW
It is more strategic to proactively manage and preserve documents, as opposed
to waiting for a dispute to arise and then scrambling your company, employees
and management to locate the relevant documents at the last minute.
DOLGACHOV/123RF 56 | Quarter 1 2020 | saskheavy.ca
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