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Alberta Civil Litigation – Sample Checklist – Disclosure by Karen M. McDougall, LL.B.
9. DISCLOSURE
9.1 Production
Review
References & Practice Points
Ensure that you have all of your client’s records,
including electronic records. Explain his/her
obligation to provide them.
Reference: Disclosure is dealt with in Part 5
of the Alberta Rules of Court, A.R. 124/2010,
(“Rules”),.
Once received, review your client’s records to
identify:
Records that are relevant and material, and
Records that are privileged.
See the Special Direction #14 “Disclosure”.
Status/Notes:
Diarize
Diarize your file for filing your client’s affidavit of
records as follows:
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.
Reference: Rule 5.5
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:
Draft an
affidavit of
records
Draft your client’s affidavit of records in prescribed
Form 26.
Reference: Rule 5.6
Status/Notes:
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File and serve
File and serve your client’s affidavit of records within Reference: Rule 5.5
the time limits set out in section 9.1, above.
Practice point: Rule 5.12 allows the court to
impose penalties for failure to file and serve
Status/Notes:
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:
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.
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.
Reference: Rule 5.10
Status/Notes:
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 nonparty.
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,
Reference: Rule 5.11
apply for a court order compelling your client’s
opponent to produce a record.
Status/Notes:
Inspection
Inspect your client’s opponent’s production and
obtain copies; allow the opponent to do the same.
Reference: Rule 5.14
Review the opponent’s production with your client.
Discuss whether there are any apparent deficiencies.
Status/Notes:
9.2 Admissions
Notice to Admit
Facts
References & Practice Points
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.
Reference: Rule 6.37(1), (2)
Serve a filed Notice to Admit on each of the other
parties.
Status/Notes:
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.
Reference: Rule 6.37
Status/Notes:
Setting Aside a
Notice to Admit
Consider applying to the court for an order setting
aside a Notice to Admit Facts.
Reference: Rule 6.37(8)
Status/Notes:
9.3 Questioning
References & Practice Points
9.3.1 General considerations
Mode of
questioning
Persons to be
questioned
Corporate
officers
Decide whether it would be best to question the
opponent’s witness(es):
orally, under oath or
through written questions.
Reference: Rule 5.22
Status/Notes:
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.
Consider the most appropriate person(s) to be
questioned.
Reference: Rule 5.17 sets out those who may
be questioned.
Status/Notes:
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).
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).
Reference: Rule 5.4
Status/Notes:
See also Rule 5.18, for the rules relating to
questioning those providing services to a
Practice points: See Rule 5.29 related to the
acknowledgement of a corporate witness’
evidence.
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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:
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.
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
Reference: Rule 5.21
Status/Notes:
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:
Compelling
attendance
Where an opponent’s witness does not attend the
questioning as scheduled, and you have complied
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.
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).
Reference: Rule 5.28(1)(c)
Status/Notes:
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.
Reference: 5.28(1)(a)
Status/Notes:
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.
Reference: Rule 6.18
Status/Notes:
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.
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.
Status/Notes:
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.
Reference: Rule 5.28(1)
Serve the affidavit on all parties within a time agreed
to by the parties or ordered by the court.
Status/Notes:
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.
Reference: Rule 5.25(4)
Status/Notes:
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.
Reference: Rule 5.30
Remind your client that he/she is obliged to provide
answers within a reasonable time.
Status/Notes:
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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.
Reference: Rule 5.30(2)
Status/Notes:
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.
Reference: Rule 5.28(3)
Status/Notes:
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
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:
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).
References & Practice Points
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.
Reference: Rule 5.35
Status/Notes:
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:
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 5.36
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.
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.
Reference: Rule 5.38
Status/Notes:
9.5 Medical examination
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.
References & Practice Points
Reference: See Division 3 of Part 5 of the
Rules for all rules relating to medical
examinations by health care professionals.
Status/Notes:
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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).
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