In the recent case of Burke v. Lauzon Sound and Automation Inc., the plaintiff sought an order for production of documents from the defendant.
The defendant, by contrast, took the position that the Small Claims Court has no power to order production of documents, outside of a settlement conference. There were a couple of earlier Small Claims Court decisions reaching that conclusion, including a decision by Deputy Judge Winny finding that motions for production of documents would "import a discovery process that is neither contemplated by nor intended under the Small Claims Court Rules."
However, Deputy Judge Lepsoe in Burke declined to follow those cases.
On a careful summary of the applicable Rules, and specifically the broad 'catch-all' language giving the Small Claims Court powers analogous to the Superior Court as to matters not specifically touched upon in the Small Claims Court, the Deputy Judge concluded that he did have power to order production, and proceeded to do so.
This issue does arise from time to time.
Unlike the Superior Court, which as part of its ordinary process requires production of all documents that are arguably "relevant" to the matters in issue, the Small Claims Court only requires that parties disclose the documents upon which they intend to "rely". If I have a document that will help you, there's nothing automatic in the Small Claims Court rules that requires me to produce it to you.
When I was an articling student (quite some time ago - before either of the cases relied upon by the defendant were decided), I was carrying a wrongful dismissal file at Small Claims Court, where the employer alleged cause, based on pretty technical allegations of breach of policy. I put together a lengthy demand for productions - on the whole, it looked pretty excessive for the Small Claims Court, but the reality is that all the documents I was insisting upon were justifiable as being important to the matters in issue - because of the nature of the allegations the employer was making, it was hard to see how we could get a fair trial without having the opportunity to explore these records.
Opposing counsel argued that there was no mechanism for discovery of documents, but I reviewed the Small Claims Court Rules at the time and came to the same conclusions as Deputy Judge Lepsoe: It didn't make sense that the Small Claims Court didn't have any jurisdiction to order production of documents, but it probably would make sense that the scope of such production should be limited to bear in mind the mandate of the Small Claims Court itself. (Eventually, the matter settled, and we never needed to argue the issue of the proper scope of discovery.)
Particularly with the Small Claims Court jurisdiction at $25,000 these days, procedural protections become more important: Maybe we don't want to order voluminous productions in a case that's only worth a couple thousand dollars, but when we're arguing over $25,000, some requirement for productions is certainly appropriate.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.