Cautious Use: Frequent Doc Books in Civil Litigation – Litigation, Mediation, and Arbitration
Two cases ruled by the Ontario Court of Appeals last year illustrate the amount of thought and care that goes into creating a common document book (JDB) for a civil process. Errors related to JDBs were of vital importance to the court, as both appeals and new proceedings could be ordered. Such books are regularly filed in commercial cases and other civil lawsuits, so understanding the decisions is important.
The two decisions of the court of appeal
In the first case, Girao v Cunningham, 2020 ONCA 260, sued the plaintiff over injuries sustained in a car accident. The appellate court found that the trial had been unfair against the plaintiff, a self-represented litigator. Part of this injustice was that the defense “dropped a massive and selectively edited 16-volume” Joint Trial Brief “against the complainant who has considerable difficulties with the English language, which the defense was aware of” (Girao, para. 21) .
The second case, Bruno v Dacosta, 2020 ONCA 602, concerned a claim for damages due to an attack in an internment camp. The appeals court ruled that the trial judge’s reasons for the decision were insufficient to enable a meaningful appeals review. The Court found that errors in the admission and use of documents in the JDB contributed to the inadequacy of the grounds (Bruno, paragraph 53).
Questions to Answer About Each JDB
The appeals court in Girao decided that there are specific questions that both the lawyer and a court must answer “in order to examine how the documents in the common document book should be treated for litigation purposes” (para. 33). The Court of Justice put forward the same list of questions when ruling on Bruno (paragraph 53):
- If the documents are not originals, will they be accepted as true copies of the originals? Are they allowed without proof of the original documents?
- Can it be assumed that all correspondence and other documents in the document book have been prepared, sent and received by the dates specified in the documents, unless otherwise proven in the negotiation?
- Is the content of a document admitted for the correctness of its content, or does the correctness of the content in the evidence in court have to be determined separately?
- Can the parties bring in additional documents that are not listed in the document book as evidence?
- Are there documents in the joint book that a party would like to treat as exceptions to the general agreement on the treatment of the documents in the document book?
- Does one party contradict a document in the document book if it was not jointly created?
The appellate court found that these questions about documents in a JDB “always crop up” (Girao, para. 33).
Filing an agreement with the JDB
The appeals court ruled that it would be preferable for the JDB to be accompanied by a “written agreement between attorneys” addressing these issues and that “it would be preferable for the trial judge and attorney to keep the agreement on file line by line go through to ensure that there are no misunderstandings “(Girao, para. 34).
We found that answers to our questionnaire were “not implicitly included in the submission” of a JDB. For this reason, the questions must “be dealt with explicitly in the file or by written agreement”. Noting that JDBs often encounter problems because “the parties did not study the issues in sufficient detail prior to the tendering of the document book as an exhibit,” the Court warned that this “must change due to normal civil litigation”. (Girao, Paragraph 35).
In order to answer the Court of Appeal’s list of questions, the litigants must allow sufficient time prior to trial to discuss the contents of a proposed JDB. Too often, preparing a JDB becomes a rash exercise of mere document compilation rather than a careful evaluation of the purpose for which the documents can be used in court.
The role of the trial judge
Although the attorney may agree on all aspects of a JDB, the trial judge controls the process. The appellate court found that “an agreement between a lawyer about the admissibility of documents is not automatically binding on the trial judge”. The trial judge remains the “gatekeeper of the evidence” (Bruno, para. 55).
It is the responsibility of the trial judge to obtain the requisite clarity about the use of documents marked as exhibits, particularly with regard to the hearsay content of a document. This “discipline of judicial review” is particularly necessary when a party is represented (Girao, paras 26-27). If the parties do not reach an agreement on the questions raised by the court of appeal on documents in a JDB, the trial judge should lead the parties through the list of questions of the court of appeal before filing a JDB (Girao, para. 35). .
Problems with hearsay
Although a variety of problems relating to a JDB can arise in a test environment, they often relate to whether a hearsay document is acceptable for the accuracy of its content. Bruno provides a good example of this common problem.
Plaintiffs ‘attorney in Bruno began the process by reading into the minutes the parties’ agreement regarding the JDB. However, the appellate court found that “the agreement was not helpful to the trial judge because of its ambiguity”. In his view, the trial judge should have “immediately and carefully examined some obvious questions, including: If a document is not contested, is its hearsay content considered admissible? If not” all “documents, which ones?” (Bruno, paras. 56-57).
After seven days of trial in Bruno, hearsay problems increased. The lawyer read into the file a “further provision” that the parties should agree that the government records in the JDB were business records under s. 35 of the Ontario Evidence Act, RSO 1990, c E.23, but there was no consensus that statements recorded in these records were acceptable for the accuracy of their content (Bruno, paras 58-59).
As the Court of Appeal found, at this stage in the proceedings the applicants had already referred to and relied on numerous documents relating to various hearsay (Bruno, paragraph 60). The new agreement of the parties stipulated that double hearsay for the correctness of its content is not allowed under s. 35, a subject that required “argument and a decision to prove”. Unfortunately it was now “too late” (Bruno, para. 61).
The trial judge found himself in a dilemma regarding the use of the business records. Despite the parties’ reservation on hearsay, the appellate court found that the trial judge had “effectively accepted” the hearsay content of one of the documents in ruling on the person who committed the attack (Bruno, para. 64). The parties could have avoided this problem by submitting a clear agreement on documents when the proceedings were opened.
The decisions of the Ontario Court of Appeal in Girao and Bruno indicate that JDBs must be handled carefully in civil litigation. Failures in both cases led to the unfortunate outcome of ordering new studies. But the appeals court also gave strong guidelines. Civil law attorneys should consider these guidelines before preparing and using a JDB in court.
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.