Discovery of Documents

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 673-691

C

H A P

T

E R

T

W E N T Y- S I X

!

Discovery

of

Documents

A.

RULES

OF

COURT

In

defamation actions, discovery

of

documents presents certain distinctive

features.

To

some

extent, these mirror

the

special limitations

on

rights

of

discovery which apply

in

defamation cases

to

oral examinations under oath

of

the

parties

before

trial.

See

Chapter

27,

"Examination

for

Discovery."

Although rights

of

documentary discovery

are

governed

by

provincial

rules

of

court,

the

wording

of

which

may

vary somewhat depending

on the

jurisdiction, courts across

the

country have taken

a

fairly

consistent

approach.

The

current statutory instruments

are as

follows:

Alberta, Judicature Act, R.S.A.

2000,

c.

J-2,

Alberta

Rules

of

Court,

Alta.

Reg.

390/68,

rr.

186-99.

British

Columbia,

Court Rules

Act,

R.S.B.C.,

1996,

c. 80;

Supreme Court Rules,

B.C.

Reg. 221/90,

r. 26.

Manitoba, Court

of

Queen's

Bench

Act, S.M. 1988-89,

c.4,

Court

of

Queen's

Bench

Rules,

Man. Reg.

553/88,

r. 30.

New

Brunswick

Judicature

Act,

R.S.N.B.

1973,

c.

J-2,

Rules

of

Court, N.B.

Reg.

82/73,

r. 31.

Newfoundland

and

Labrador,

Judicature

Act, R.S.N.

1990,

c.

J-4,

Rules

of

the

Supreme

Court,

1986, S.N. 1986,

c. 42,

Sched.

D, r. 32.

Northwest Territories,

Judicature

Act,

R.S.N.WT.

1988,

c.

J-l

(Alberta

Rules

of

Court

apply).

Nova Scotia, Judicature Act,

R.S.N.S.

1989,

c.

240,

Civil

Procedure

Rules,

RR.

r.

20.

673

674

CANADIAN

LIBEL

AND

SLANDER ACTIONS

Ontario, Courts

of

Justice

Act, R.S.O. 1990,

c.

C-43;

Rules

of

Civil

Procedure,

R.R.O.

1990, Reg. 194,

r. 30.

Prince Edward Island, Supreme Court Act,

R.S.RE.I.

1988,

c.

S-10,

Rules

of

Civil

Procedure,

r. 30.

Saskatchewan,

Queen's

Bench Act,

R.S.S.

1978,

c.

Q-l,

Queen's

Bench Rules,

rr.

212-21.

Yukon Territory, Judicature Act,

R.S.Y.

1986,

c. 96

(British

Columbia

Supreme

Court

Rules apply).

Federal

Court

Rules

(1998),

r.

240.

This chapter addresses discovery

issues

that

are

discussed

in the

defama-

tion jurisprudence.

It is not

intended

as a

checklist

of

categories

of

docu-

ments

to be

sought

in the

discovery process.

1)

Ontario: Simplified Procedure

In

Ontario,

if the

matter

is

proceeding under

the

Simplified Procedure (Rule

76),

discovery

of

documents

is not

permitted whether

or not the

action

involves

a

defamation claim.

Mills

v.

MacFarlane

(2000),

49

C.P.C.

(4th) 184,

per Lax J. at 192

(Ont.

S.C.J.).

B.

PRODUCTION

OF THE

DEFAMATORY EXPRESSION

The

plaintiff

may be

entitled

to

production

by a

news media defendant

of

any

notes, tapes,

and

documents used

in

preparing

an

article

or

broadcast.

Del

Zotto

v.

Canadian

Newspapers

Co.

Ltd.

(1988),

65

O.R. (2d)

594 at 598

(S.C.

(Mast.)).

The

conduct, intention,

and

knowledge

of the

defendants, both

before

and

after

publication,

and the

care taken

by the

defendants prior

to

publi-

cation,

may be

relevant

to

issues

of

express malice

and

therefore

material

to

the

assessment

of

damages.

Getty

v.

Calgary Herald

(1991)

47

C.EC. (2d)

42, per

McFadyen

J. at 44

(Alta.

Q.B.).

A

defendant

may be

ordered

to

produce

a

manuscript

of a

book concern-

ing the

plaintiff which

has yet to be

published,

if the

book

is an

extension

or

elaboration

of an

article

which gave rise

to the

action

before

the

court.