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Civil, insurance, construction and family law

Disclosure of evidence in the possession of a third party

By : Fournier, Alexandre

21 September 2023

In the context of any judicial proceeding, it is customary for the parties to request and obtain the communication and disclosure of information and documentation of any kind from the opposing party. The Code of Civil Procedure (the “C.C.P.”) provides a variety of tools to achieve this, such as formal requests to provide details or to communicate documents, or undertakings to provide information or documents during examinations for discovery. Information may also be exchanged on an ad hoc basis in accordance with sound case management. In short, the goal is to support the “search for the truth” as much as possible, and it is understood that these exchanges between the parties contribute significantly to this goal.

However, despite the parties’ good faith, or when a party refuses to cooperate or even obstructs the process, it is possible that the only person who can communicate the document or information sought is not a party to the proceedings. Fortunately, it is still possible to obtain the document or information sought since the second paragraph of article 251 of the C.C.P. contains a sometimes overlooked tool that requires a third party in possession of a document or piece of evidence relating to the case “to disclose it, present it to the parties, submit it to an expert for examination or preserve it” when the court orders them to do so.

The usefulness of this approach is obvious, especially because it facilitates access by a party to elements that may be essential to the defence of its position prior to the trial. However, to prevent abuse of this measure, which essentially involves a third party in a case that often does not concern him or her, legislators and the courts impose certain prerequisites to its use.

First, it is recommended that the third party be approached in advance to ensure that the document or evidence sought exists and that he or she agrees to transmit it to the parties, if necessary. This simple approach can help prevent a debate before the Court

Then, if the third party refuses to cooperate, if the opposing party objects to the communication, or if there are confidentiality issues, the party wishing to obtain the communication must formally address the court by way of a written request, a copy of which must be transmitted to the third party in question. The third party will be given the opportunity to be present in court during the debate if he or she so desires. The party requesting disclosure of the document or evidence must: (i) establish its existence and identify it, (ii) demonstrate that it is in the possession of the third party, and (iii) show that it is relevant to the case.1 Of course, the Court will reject any request that is unreasonable, abusive or that may constitute a fishing expedition.2 It should also be noted that the Court can only order the disclosure of an existing document or piece of evidence and does not have the power to order the third party to create one.

Once these conditions are met, the court may issue an order compelling the third party to disclose the material, which may then be used as evidence.

The recourse provided for in article 251, paragraph 2 of the C.C.P. is, in our opinion, an additional illustration of the options available to a party to supplement its evidence during proceedings from a “search for the truth” perspective. A lack of documentation in the possession of a party should therefore not represent an obstacle to the execution of an otherwise well-founded action.

Should you require any additional information, please do not hesitate to contact us.

Entrepreneurs de construction Concordia Inc. v. Régie des installations olympiques, 2021 QCCS 3236 (CanLII), paras 26 et seq.
Allen Entrepreneur général Inc. v. Almiq Contracting Ltd., 2021 QCCS 5133 (CanLII), paras 25 et seq.