By: Jen M. Kaumeyer, University of Alberta Law Student
Legal scholar Gary D Watson[1] has stated that a defining characteristic of Canadian civil procedure is that it ensures maximal fairness. In saying so, he contrasts civil procedure against administrative law, which itself only produces minimal fairness.[2] But what is the meaning of maximal fairness, and how does civil procedure achieve it? One answer to these questions might be found in the way the doctrine of discovery is treated in Canadian civil procedure.
This post explores different ways discovery rules might contribute to the delivery of maximal fairness. My discussion proceeds as follows: discovery rules in the adversarial system, exceptions to discovery rules, and the impact discovery rules have on access to justice. I end with a reflection on the lawyer’s role as a legal advocate and steward of maximal fairness.
Context: Discovery Rules in an Adversarial System.
Despite the seemingly competing interests of these two doctrines, we find that discovery rules are so strictly enforced that they seem to “win the day” over adversarial values. Therefore, situating the heft of discovery rules in the larger context of Canadian law as an adversarial system helps support Watson’s assertion that civil procedure ensures maximal fairness.
Discovery is the practice of disclosing anything relevant to/in ongoing legal proceedings. It is a requirement of civil procedure that ensures parties glean a sufficient understanding of: the (1) issues being litigated; (2) positions on these issues; and (3) the strength of the case to proceed to trial (or whether settlement is a better alternative).
The adversarial system – which is itself a core feature of Canadian law – operates on an underlying assumption that both parties are opposed in interest, and therefore need not assist one another in litigating their respective cases.[3] However, even in an adversarial system, discovery requirements are fairly exhaustive: any relevant fact, document, or physical information that relates to the case must be given to the other side. To fail to do so for any reason, including the harm it may cause to one’s own case, could result in serious disciplinary action for counsel and client alike – including the possibility of paying costs, having pleadings struck[4] or an order for contempt.[5]
This obligation is ongoing[6] and applies to any subsequent information that may become relevant throughout the course of litigation. The reality of discovery rules is that they compel two parties, adverse in interest, to aid one another by disclosing anything relevant to the litigation, even if it would hurt their case.[7] So, the requirement of discovery in civil proceedings is a procedural feature that maximizes fairness in litigation despite the obvious contradiction with the adversarial context.
But the obligation of discovery in and of itself is not absolute. Furthermore, Watson’s articulation of maximal fairness is relatively abstract. While our rules attempt to make civil procedure maximally fair, fairness and justice are animated by their impact on the lived reality of litigants. The question then becomes: is maximal fairness something that real litigants can access, regardless of the theoretical weight of the rules we have in place?
Exceptions to Discovery Rules: Do They Offend Maximal Fairness?
Limitations on discovery are not necessarily an inhibiting force. On the contrary, they might offer a more fulsome realization of maximal fairness, if we consider the interests of the justice system as a whole rather than the individual interests of adverse parties.
The main bar to discovery is where privilege[8] is engaged[9] and even so, an explanation for why privilege applies must be offered and be of sufficient detail to satisfy the court that otherwise relevant material should be excluded.[10]
Another bar to discovery is proportionality. If a party has undertaken great time and expense to make materials available, and the other side still requests further discovery the court may deny such an order by weighing the effect the search would have over and against the effort it would require to perform.[11]
However, to state that these “bars” to discovery offend maximal fairness would incorrectly conflate absolute discovery with fairness itself; These are not inherently unfair limitations. In fact, they seem to create more fairness across party lines and in the broader context of litigation as a process, rather than as a triumph of one side or another. Therefore, limitations on discovery rules can also aid our understanding of maximal fairness because they help us distinguish between the rules themselves and the aim of fairness. In this way, we can interpret the relationship between discovery and “maximal fairness” as an aim of the overall impact of the legal system, rather than the literal extent of information given to one side or the other.
Cost: Maximal Fairness and Access to Justice.
“Even before the rise of computers, the enormous time and expense required to provide a Peruvian Guanoscale of document discovery was, in some cases, oppressive.”[12]
The Peruvian Guano[13] case is an early precedent that cemented the wide reach of discovery obligations, which were ruled to be “broad and liberal”. However, these obligations add time and expense to litigation that must be shouldered by clients, rather than legal actors themselves.
This begs the question: is extensive discovery the most efficient way to achieve maximal fairness in civil procedure and litigation? Likely not, because that would limit cost-adverse litigants from accessing the justice system. Nonetheless, it is the act of balancing these factors, rather than changing the conventions of discovery itself, that will deliver access to justice.
Proportionality[14] as a limitation on discovery is an important countervailing consideration in the balancing of maximal fairness, expense, discovery, and access to justice concerns. It therefore may become a more important consideration for fairness than discovery rules themselves. And Canadian courts appear to agree, as ruled in Warman v The National Post,[15] the previously “broad and liberal” standard of discovery should be replaced by a more proportionate standard.
Advocacy: The Role of the Lawyer in Discovery.
“Nowhere in civil procedure is the responsibility of the lawyer greater than in the area of the discovery of documents.”[16]
There is still another, final consideration of maximal fairness: the role of the lawyer.
Lawyers have an ethical obligation as advocates of their clients; this ethical obligation is not just relevant to the veracity of their argument, nor the extent of their legal knowledge, although those are ethical considerations. The role of the lawyer as an advocate also extends to monitoring the cost of litigation regardless of the personal benefit they might garner from increased costs. Because discovery is an area susceptible to exponentially increasing legal costs, and a lawyer has undertaken to translate and perform the law for their client, it is their responsibility to perform their own sort of proportionality analysis in the purview of the individual case. In doing so, they can determine when discovery obligations are sufficiently satisfied. Thus, the responsibility to deliver maximal fairness lies, in part, with lawyers as advocates to ensure that civil procedure can remain maximally fair in the broader context of a client’s ability to access justice without creating the hardship of excessive cost.
[1] Researcher and Professor at Osgoode Hall Law School, < https://www.osgoode.yorku.ca/faculty-and-staff/watson-garry-d/ >.
[2] Walker, Janet et al, Civil Litigation Process: Cases and Materials, 9th Edition, (Toronto, Edmond Montgomery Publications, 2022), at page 46.
[3] Ibid at page 12.
[4] Morbank Financial Inc v 0476779 B.C. Ltd, 2013 BCSC 2008 (CanLII)
[5] Alberta Rules of Court, Alta Reg 124/2010, see Rules 7.2, 7.3 and 10.52(3).
[6] Or, “evergreen,” as stated in Walker, supra note 2, at page 425.
[7] For another perspective of a similar sentiment on the adversarial system, consider Martel v Andrew, 2005 ABCA 63, the Court held that there is no general duty of care owed by a litigator to the client on other side.
[8] Or other undertakings of confidentiality.
[9] Walker, supra note 2, at chapter 7.
[10] Grossman et al v Toronto General hospital et al, 1983 CanLII 1975 (ONSC). Evaluation of how much information is appropriate will be governed by the circumstances
[11] Peter Kiewit Sons Co. of Canada Ltd. v. British Columbia Hydro & Power Authority, (1982) 1982 CanLII 575 (BC SC): even where further documentary evidence is likely relevant, it may not be ordered by a court for proportionality concerns.
[12] Walker, supra note 2, at page 438
[13] Cie Financiere du Pacifique v Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.)
[14] Hyrniak v Maudlin, 2014 SCC 7 at para 31.
[15] Warman v National Post Company, 2010 ONSC 3670 (CanLII).
[16] Walker, supra note 2, at page 435.