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Alberta Civil Litigation – Sample Checklist – Disclosure by Karen M. McDougall, LL.B.

9. DISCLOSURE

9.1 Production References & Practice Points

Review Ensure that you have all of your client’s records,

including electronic records. Explain his/her

obligation to provide them.

Once received, review your client’s records to

identify:

Records that are relevant and material, and

Records that are privileged.

Status/Notes:

Reference: Disclosure is dealt with in Part 5

of the Alberta Rules of Court, A.R. 124/2010,

(“Rules”),.

See the Special Direction #14 “Disclosure”.

Practice point: A question, record or

information is "relevant and material" only if

the answer to the question, or the record or

information, could reasonably be expected:

(a) to significantly help determine one or

more of the issues raised in the

pleadings, or

(b) to ascertain evidence that could

reasonably be expected to

significantly help determine one or

more of the issues raised in the

pleadings.

Diarize Diarize your file for filing your client’s affidavit of

records as follows:

Plaintiff: File and serve your plaintiff client’s

affidavit of records on all parties within 3 months

from the date he/she is served with a statement of

defence.

Defence: File and serve your defendant client’s

affidavit of records on all parties within a month

from the date he/she is served with the plaintiff's

affidavit of records.

Third party defendant: File and serve your client’s

affidavit on records on all parties within 3 months

from the time he/she files a defence.

Status/Notes:

Reference: Rule 5.5

Draft an

affidavit of

records

Draft your client’s affidavit of records in prescribed

Form 26.

Status/Notes:

Reference: Rule 5.6

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File and serve File and serve your client’s affidavit of records within

the time limits set out in section 9.1, above.

Status/Notes:

Reference: Rule 5.5

Practice point: Rule 5.12 allows the court to

impose penalties for failure to file and serve

an affidavit of records within the required

time frame, or failure to disclose subsequent

records.

Rule 5.16 says that a party that fails to

disclose a relevant and material record, either

in its affidavit of records, in a subsequent

disclosure or in accordance with a request to

do so, may not afterwards use that record in

evidence unless the parties agree or the court

so orders.

Consider the

need for an

extension

If you need an extension within which to file your

client’s affidavit of records, contact your opponent to

negotiate one.

Alternatively, consider negotiating your opponent’s

agreement to allow a partial affidavit, pending

obtaining difficult records.

Status/Notes:

Practice point: On the requirement of

“sufficient cause” for an extension, see Sun

Life Assurance Co. of Canada v. Tom 2003-1

Ltd. Partnership No. 2, (2010), 516 A.R. 95,

2010 CarswellAlta 2783, 2010 ABQB 815.

The fact that your client is unavailable to

swear his/her affidavit of records has been

held an unacceptable reason for an extension:

Heidinger v. Medicine Hat Lodge No. 1073,

2005 ABQB 758, 2005 CarswellAlta 1452.

Subsequent

disclosure

Where additional records are found after the fact,

serve a supplementary affidavit of records and, on

request and payment of reasonable copying expenses,

supply the other parties with copies.

Status/Notes:

Reference: Rule 5.10

Compelling

production

Where records are held by a non-party who refuses to

produce them, consider making a court application to

compel their production.

Make your application on notice.

Status/Notes:

Reference: Rule 5.9

Practice point: Your supporting affidavit

must cover these points:

(a) the records are under the control of a

non-party,

(b) there is reason to believe that the

record is relevant and material, and

(c) the person who has control of the

record might be required to produce it

at trial.

See Esso Resources Ltd. v. Stearns Catalytic

Ltd, (1990) 108 A.R. 161, 1990 CarswellAlta

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95, paragraphs 11 - 13 (C.A.), a decision made

under the old discovery rules, for the test for

obtaining an order for production from a non-

party.

Practice point: To save time and costs,

consider putting off an application compelling

a non-party to produce records until after

questioning. Consider an application only

after the other party refuses to undertake to

request the records from a third party.

Consider, also, applying to compel a better

affidavit of records to include those records.

Where you have reason to question whether:

your client’s’ opponent may have

unproduced, relevant records, or

its claim of privilege is improper,

apply for a court order compelling your client’s

opponent to produce a record.

Status/Notes:

Reference: Rule 5.11

Inspection

Inspect your client’s opponent’s production and

obtain copies; allow the opponent to do the same.

Review the opponent’s production with your client.

Discuss whether there are any apparent deficiencies.

Status/Notes:

Reference: Rule 5.14

9.2 Admissions

References & Practice Points

Notice to Admit

Facts

Where it would help to expedite matters, file and

serve on the party from whom you seek admissions a

Notice to Admit Facts, in prescribed Form 33.

Serve a filed Notice to Admit on each of the other

parties.

Status/Notes:

Reference: Rule 6.37(1), (2)

Diarize Diarize your file for a response to your client’s Notice

to Admit. If you have not received a response

within 20 days of service, each of the matters set out

in the Notice will be deemed to have been admitted.

Reference: Rule 6.37(3)

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Status/Notes:

Responding to a

Notice to Admit

Facts

Where your client has been served with a Notice to

Admit Facts, respond within 20 days of service,

otherwise he/she/it will be deemed to have admitted

each of the matters set out in the Notice.

Status/Notes:

Reference: Rule 6.37

Setting Aside a

Notice to Admit

Consider applying to the court for an order setting

aside a Notice to Admit Facts.

Status/Notes:

Reference: Rule 6.37(8)

9.3 Questioning References & Practice Points

9.3.1 General considerations

Mode of

questioning

Decide whether it would be best to question the

opponent’s witness(es):

orally, under oath or

through written questions.

Status/Notes:

Reference: Rule 5.22

Practice points: Subdivision 3, Division 1,

Part 5 of the Rules governs questioning.

Under Rule 5.24:

If more than one party is questioning,

the questioning must be oral;

A party may not question both orally

and in writing.

Persons to be

questioned

Consider the most appropriate person(s) to be

questioned.

Status/Notes:

Reference: Rule 5.17 sets out those who may

be questioned.

A corporate representative may object to an

oral or written question on the basis that it

would be unduly onerous for him/her to

inform himself/herself of the answer: Rule

5.25(3).

Corporate

officers

Ensure that, where your client is a corporation, or

your client’s opponent is a corporation, that a

corporate representative is appointed for the purposes

of disclosure (unless a procedural order under the

Rules provides otherwise).

Status/Notes:

Reference: Rule 5.4

Practice points: See Rule 5.29 related to the

acknowledgement of a corporate witness’

evidence.

See also Rule 5.18, for the rules relating to

questioning those providing services to a

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corporation.

Consider applying for an order for the

appointment of a corporate representative for

your client’s opponent where:

It has failed to appoint a corporate

representative,

Its corporate representative is not

suitable,

the representative did not inform

himself or herself adequately, or

an additional representative is

required.

9.3.2 Oral questioning of an opponent’s witness

Scheduling oral

questioning

Where you have decided to conduct oral questioning,

contact opposing counsel or your client’s

unrepresented opponent to informally schedule

questioning.

Status/Notes:

Practice point: Consider that, without court

order or your client’s opponent’s agreement,

you may not question your client’s opponent:

until after you have served your

client’s affidavit of records,

where you act for the plaintiff, until

you have been served with a statement

of defence (or the time for service of a

defence has expired), and

where you act for the defendant, until

you have served your client’s

statement of defence: Rule 5.20

Service Where making informal arrangements is not possible,

serve a Notice of Appointment for Questioning (in

prescribed Form 29) on your client’s opponent or

his/her counsel 20 days or more before the

appointment date.

Status/Notes:

Reference: Rule 5.21

Preparing for

oral questioning

Where you act for the questioning party (typically the

plaintiff):

arrange for the court reporter to attend and

record the proceedings and

review all documents, including pleadings

and production.

Status/Notes:

See the Special Direction #15

“Questioning”.

Reference: Rule 5.26(2)

Practice point: Makes notes on the issues, the

facts you need to confirm, and the admissions

you will attempt to elicit.

Compelling

attendance

Where an opponent’s witness does not attend the

questioning as scheduled, and you have complied

Reference: Rule 6.38

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with the requirements under the Rules, apply to the

court for an order compelling that witness to attend

for questioning.

Status/Notes:

Practice point: Exhibit to your client’s

affidavit in support of your application

documents proving that the opposing party

was served with the appointment and

allowance and failed to attend, or as the case

may be. Also exhibit to the affidavit in

support the Certificate of Non-Attendance

issued by the court reporter.

9.3.3 Written questioning of an opponent’s witness

Agree on a

timeline

Negotiate with your client’s opponent the time within

which answers to written questioning (in affidavit

form) must be provided to you. (Alternatively, get

court order dealing with this issue).

Status/Notes:

Reference: Rule 5.28(1)(c)

Preparing

written

questions for

your client’s

opponent

Prepare numbered questions for the opponent’s

witness. See Rule 5.28 for the rules relating to proper

written questions.

Status/Notes:

Reference: 5.28(1)(a)

9.3.4 Oral questioning of your client

Counsel’s

responsibility if

served with an

appointment

Where you, as counsel, are served with a notice of

appointment and an allowance on behalf of your

client, inform your client as soon as practicable, and

use the allowance for the purpose intended.

Status/Notes:

Reference: Rule 6.18

Preparing your

client

Where your client is to be questioned orally, ensure

that he/she has reviewed the documents in the

production and has a working knowledge of the issues

in the suit.

Consider the need for a “mock” questioning of your

client.

Status/Notes:

Practice point: Your client is obliged to

reasonably prepare for questioning and to

bring to questioning any records likely to be

required (and which are not privileged): Rule

5.23.

Objections Be familiar with the objections available to you based

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on:

privilege

a question being irrelevant and immaterial;

a question being unreasonable or

unnecessary; or

any other ground recognized at law.

Status/Notes:

9.3.5 Written questioning of your client

Preparing your

client for

written

questioning

Where your client is being questioned in writing

ensure that he/she has reviewed the documents in the

production and has a working knowledge of the issues

in the suit before answering the questions.

Status/Notes:

Answers to

questioning

Prepare your client’s answers in an affidavit format,

stating each question being answered.

Serve the affidavit on all parties within a time agreed

to by the parties or ordered by the court.

Status/Notes:

Reference: Rule 5.28(1)

9.3.6 After oral questioning

After

questioning an

opposite witness

Where questions you have put to a witness have been

refused or objected to, consider applying to the court

for a determination of the validity of the objection.

Status/Notes:

Reference: Rule 5.25(4)

Undertakings

given by your

client

Immediately after oral questioning, send your client a

list of the undertakings he/she has given to the

opposite side.

Remind your client that he/she is obliged to provide

answers within a reasonable time.

Status/Notes:

Reference: Rule 5.30

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Diarize Diarize your file for a reasonable period within which

to:

Receive, vet and pass along to your opponent

your client’s answers to undertakings, and

Receive the answers to the undertakings

given to you by the parties you have

questioned.

Status/Notes:

Compel answers

to undertakings

given by an

opponent’s

witness

Where you do not receive the opposite party’s

answers to undertakings within a reasonable time,

including those given in response to written

questioning, consider making an application to

compel those answers.

Status/Notes:

Reference: Rule 5.30(2)

Follow-up After reviewing the answers to undertakings given by

an opponent’s witness, consider whether it is

necessary to question that party on the answers given.

Generally consider the need for further oral or written

questioning.

Status/Notes:

9.3.7 After written questioning

Follow-up Where the answers to your written questions are

unsatisfactory, consider asking follow up questions in

writing or negotiating with your client’s opponent to

conduct oral follow-up questioning.

Reference: Rule 5.28(2)

Where the answers to your follow-up questions are

unsatisfactory, consider applying for a court order

allowing further oral or written questioning.

Status/Notes:

Reference: Rule 5.28(3)

Consider After undergoing the questioning process, and having

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settlement reviewed the opponent’s case, consider whether

settlement discussions would be beneficial.

Status/Notes:

9.4 Experts and experts’ reports

References & Practice Points

Report

preparation

Prepare your experts’ reports in prescribed Form 25.

Ensure that they contain this information:

the expert’s name and qualifications,

the information and assumptions on which

the expert’s opinion is based, and

a summary of the expert’s opinion.

Status/Notes:

Reference: Rule 5.34

Practice point: Division 2 of Part 5 of the

Rules governs experts and expert’s reports.

Court of Queen’s Bench Practice Note 5

dictates the format of expert evidence of

economic loss or damages.

Service of

experts’ reports

Unless you can otherwise agree with your client’s

opponent, serve experts’ reports like this:

Where you act for the plaintiff, serve your

reports on each of the other parties first;

Then the other parties serve their experts’

rebuttal reports.

Consider obtaining and serving surrebuttal

experts’ reports (responding only to the new

issues raised in the rebuttal reports).

Status/Notes:

Reference: Rule 5.35

Objections Notify your client’s opponent within a reasonable

time should you have an objection to an expert’s

report being relied upon by that opponent.

Status/Notes:

Reference: Rule 5.36

Practice point: The court will likely not

entertain an objection to an expert’s report at

trial where no reasonable notice of that

objection has been given.

Questioning

experts

Consider getting the agreement of your client’s

opponent, or a court order, allowing you to question

the experts relied upon by him/her/it.

Status/Notes:

Reference: Rule 5.39

Practice point: Evidence of an expert is

treated as if it were evidence of an employee

of the party relying on the expert’s report:

Rule 5.37(4).

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Ongoing

disclosure

obligation

Caution your client’s experts that if they change their

minds on any issue, your client’s opponent is entitled

to written disclosure of the changed opinion.

Status/Notes:

Reference: Rule 5.38

9.5 Medical examination References & Practice Points

Personal injury

– medical

examination

Particularly when acting for the defence in a personal

injury action, consider whether to approach your

opponent or, if necessary, obtain a court order for a

medical examination of the plaintiff.

Status/Notes:

Reference: See Division 3 of Part 5 of the

Rules for all rules relating to medical

examinations by health care professionals.

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Special Direction #14:

Disclosure

[Jump Back: section 9.1 Production]

As you prepare your client’s production and review the other side’s production, keep in mind the five purposes of

disclosure:

o obtaining evidence that will be relied on in the action,

o narrowing and defining the issues between parties,

o encouraging early disclosure of facts and records,

o facilitating evaluation of the parties’ positions and, if possible, resolving issues in dispute, and

o discouraging conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the

cost of them (Alberta Rules of Court, A.R. 124/2010, Rule 5.1(1)).

Ensure that your client’s disclosure is:

o Assessed from the perspective of the party requiring production rather than from the perspective of the

party providing the documents;

o Meaningful, reliable, and complete;

o Provides sufficient detail to enable the party requiring disclosure to understand generally what the

documents contain, where they originated, when they originated, and the number of documents within the

group;

o Allows the party requiring disclosure to retrieve the documents;

o Allows the other side to object to the tendering of any document into evidence on the grounds that it has

not been produced;

o Appropriate to the circumstances of the case: Canadian Engineering & Surveys (Yukon) Ltd. v. Banque

nationale de Paris (Canada) (1995), 179 A.R. 394, 1995 CarswellAlta 478 (Q.B.); appeal dismissed at

(1996), 196 A.R. 1 (C.A.).

Note that the Rules define “record” as including electronic records -- "the representation of or a record of any

information, data or other thing”. The general rule is that in, describing records in an affidavit, it is only necessary

that they be sufficiently identified to allow the court to make and enforce an order for production, and to allow the

parties to locate and identify a particular record: Dorchak v. Krupka (1997), 196 A.R. 81, 1997 CarswellAlta 314

(C.A.).

You need not describe privileged records in your client’s affidavit in a manner that may lose the privilege. The

description need not include dates, record content, dates or the parties to the record: Dorchak v. Krupka.

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Special Direction #15:

Questioning

[Jump Back: section 9.3.2 Oral questioning of an opponent’s witness]

The transcript of evidence given as a result of your questioning of the other side is yours only, to be used only against

the party who was questioned. This means that you, as questioner, have the opportunity to ask anything you like, no

matter how potentially damaging to your client’s case. As counsel, you decide which answers from questioning will

be put before the court at trial: Alberta Rules of Court, A.R. 124/2010 (“Rule”), Rule 5.31(2).

The order of proceeding in an oral questioning is:

o The questioning party completes its examination of the witness,

o The party producing that witness may then examine him/her to explain, elaborate or provide context for

an answer initially given.

The questioning party may then question the witness about the follow-up answers given: Rule 5.25(5), (6).