Disclosure of the Crown brief’s contents is not automatic. Although there is a strong public interest in full disclosure to promote the administration of justice, an interest in keeping certain information confidential must also be considered. These considerations become significant when sensitive medical or psychological records exist, or where release of information could jeopardize the safety and privacy of a witness or victim. The 2004 Ontario Court of Appeal case D.P. v. Wagg addressed these issues and established a balancing and screening test.
The Crown brief cannot be disclosed and used in a civil proceeding without first obtaining the consent of the parties, the Crown and the relevant law enforcement authorities. If agreement about disclosure cannot be achieved, a motion, known as a Wagg motion, will be required to determine the scope of disclosure.
Orders for production are briefly referenced in the Rules of the Small Claims Court. Rule 13.05(2)(a)(vi) states that a judge at a settlement conference may make an order directing production of documents. It does not, however, indicate the scope of production.
Because there is no Small Claims Court rule dealing specifically with this type of order, a party should look to look to certain subrules of Rule 30 (discovery of documents) of the more expansive Rules of Civil Procedure for authority, filling in the gap. Resort to the Rules is permitted in certain instances by virtue of Rule 1.03(3) of the Rules of the Small Claims Court which provides the following:
1.03 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act.
Matters Not Covered in Rules
(2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
Rule 30.10 of the Rules of Civil Procedure addresses production from non-parties with leave:
Order for Inspection
30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
No reported Small Claims Court cases appear to exist at this time dealing with Wagg motions, but allowing them would be consistent with the interests of justice and principle of fairness.
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of small claims matters. This blog article by Richard Nishimura is for informational purposes only and does not constitute legal advice.