Posted by Graeme Maitland — filed in Litigation
If you are involved in a civil case there will come a time when you are asked to provide documents to the other side. This is called disclosure, and it is an important part of the legal system in Canada. But very often, you may ask why you need to disclose information. You did nothing wrong, it was the other side that wronged you. Disclosing documents on both sides has a purpose, but not everything has to be disclosed.
In criminal law, the two parties are the Crown (the State) and the Defendant. The Defendant is accused of a crime and it is the Crown’s job to prove it. Because the Crown has the resources of the State at its disposal, it is required to provide all of the documents it gathers to the Defence. The Defence doesn’t have to do this. They can keep evidence from the Crown and reveal it at trial, proving their client is innocent and it was actually someone else the whole time. If you’ve ever seen a courtroom drama, this is what usually happens.
In a civil case, the system is different. Civil cases deal with disputes that need to be resolved. Because it’s about dispute resolution, both sides are asked to play with an exposed hand. Both sides can see what evidence the other side has which could lead to negotiation and resolution outside of the Courts. Usually disclosure comes in the form of an Affidavit of Records, a Reply to Notice to Disclose, or another form that a lawyer will draw up with your assistance.
Not every document in a civil case must be disclosed. Some documents are protected by something called privilege. There are several different types of privilege, but the one people are most familiar with is Solicitor-Client privilege. This allows people to speak to their lawyers (by email, over the phone, or in person) without fear of those conversations from being used against them. If something is covered by Solicitor-Client privilege, it is protected until the client makes it public or waives privilege.
If you have questions about disclosure in a civil matter, speak to one of the civil litigation lawyers at Aarbo Fuldauer LLP in Calgary.
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120