Does the Plaintiff have to disclose documents/records/property to the Defendant at the behest of the Defendant in a small claims court action?

It is this writer’s submission that there are a variety of reasons why a Defendant would want to have a document or record or a piece of property that is in the Plaintiff’s possession disclosed to them. One reason would be to utilize such evidence for the purposes of contradicting the evidence of the Plaintiff at trial. Let’s say the Plaintiff is suing an insurance company for its denial of coverage in a motor vehicle accident claim. The insurance company investigated the claim, and denied the claim on the basis that the Plaintiff had misrepresented the jurisdiction in which he/she resides in order to obtain a better/lower rate of automobile insurance premiums. Consequently, under Section 233(1) of the Insurance Act, the claim by the Plaintiff is invalid and the right to recover indemnity is forfeited.

For the trial purposes, the Defendant insurance company wishes to obtain evidence to put sufficient meat on the evidentiary bones of its claim, for instance, by obtaining copies of the Plaintiff’s cell phone records or bank statements in order to connect the Plaintiff to a jurisdiction - where the Defendant claims the Plaintiff, as a matter of fact, resides - in which phone calls and purchases were most frequently made by the Plaintiff. For obvious reasons, the Plaintiff would resist such production requests at the instance of the Defendant. But, does the law actually require the Plaintiff to disclose these private and potentially incriminating records at a Defendant’s request?

Likewise, in the decision of Garg v. Raywal Limited Partnership, 2014, Deputy Judge J. Sebastian Winny further dismissed a motion by the Defendant for an order that the Plaintiff produce personal property for the purpose of expert testing for want of jurisdiction. The Honourable Justice Winny explained:

It is this writer’s submission that there is a very limited form of discovery of documents in the small claims court, which are contained in the Rules of the Small Claims Court. For instance, pursuant to Rules 13.03(2) and 18.02(1) of the Rules, a Plaintiff would only have to disclose to all other parties to the action the documents and/or records that they intend to rely on at trial. Further, Rule 13.05(2) (vi) permits a Judge to make an order “directing production of documents” in a settlement conference. This is the only place in the Rules that deals with production of documents beyond those the parties intend to rely on and it arises only as part of a settlement conference.

Whilst a Judge at the settlement conference may at his/her discretion order the production of documents and/or records at the request of the Defendant, an issue arises when a Judge does not make such an order at the settlement conference or the request for documents and/or records are prior to or after the settlement conference. The Plaintiff is then under no obligation to disclose any document and/or record to the Defendant at his/her request, since there is no other provision in the Rules that allow for such discovery of documents.

However, in the decision of Burke v. Lauzon Sound and Automatization Inc.; Brian Lauzon (March 4, 2016), Doc. SC-14-00132443, the Plaintiff sought an order for production of certain specific documents by the Defendants. Deputy Judge P. Lepsoe of the Ontario Small Claims Court held that there is jurisdiction in the Small Claims Court to grant the order. Will-say statements are a species of discovery. Inconsistency in the case law and practice as to whether there is any “discovery” power beyond the specific provision of Rule 13.05(2)(vi). The proper interpretation of the Rule 13.05(2)(vi) is not that it limits production orders to settlements conferences, but rather that it affirms that even at a settlement conference a judge may make such a mandatory order, it being one of a type, in the words of the Rule, “relating to the conduct of the action that the court could make”, i.e. that the court outside of a settlement conference could make. The Defendants were to provide copies to the plaintiff, within thirty (30) days of the date of the decision.

Contrary to earlier jurisprudence, a huge shift in the law took place in the Ontario Court of Appeal decision of Riddell v. Apple Canada Inc., 2017 (hereinafter “Riddell”), which addressed the issue of whether Deputy Judges of the Small Claims Court have jurisdiction to order the pre-trial inspection of property in a proper case. Here, the Ontario Court of Appeal ruled:

It is clear that the production of cell phone and bank records are necessary and relevant to the insurance company in order to corroborate its claim that the Plaintiff had made false misrepresentations regarding where he/she resides in order to obtain better/lower rates of car insurance premiums, which was the basis for the insurance company’s denial of claim for indemnity.

It is this writer’s submission that even though Riddell was a pre-inspection of property case, it can be argued that the decision of Riddell also provides Defendants a route to seek orders against the Plaintiff for the production of documents and/or records under Rule 1.03(2) of the Rules of the Small Claims Court by reference to the broad Rule 30 of the Rules of Civil Procedure, which governs the discovery of documents. However, a Court will not entertain an order for the pre-inspection of property or production of a document and/or record in every given case. Only in “exceptional cases”, where “trial fairness” and the “interest of justice” mandate it, should a Court make such an order. The failure to provide pre and post settlement conference documentary discovery in the Rules can be viewed as a deficiency in the scope of the Rules. Further, pursuant to Section 25 of the Courts of Justice Act, “the Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” Therefore, in an exceptional case, resort should be had to Rule 1.03(2) by the Court to remedy this deficiency in the Rules, which is in line with an order that is considered just and agreeable to good conscience.