If you believe that a non-party (or ‘third party’), such as a doctor or business associate, has a document that may be relevant to an issue in the complaint, you may apply for an order requiring the third party to disclose the document.
You should ask for disclosure of a document as soon as possible after you learn it exists and may be important to your case. You must:
For the Tribunal to order a third party to give you a copy of a document, you must apply using a General Application. Your application must show:
This means that the document might help you prove or disprove an important fact that the parties disagree about.
There are some kinds of documents that cannot be disclosed and that are not admissible in a hearing. Often these documents are called “privileged”.
For example, a letter from a lawyer giving legal advice is “solicitor-client privileged”
Other documents may meet a test for privilege, including whether the document was produced with an expectation of confidence, and whether its value as evidence outweighs the potential prejudice to a person’s privacy.
Documents created specifically for the purpose of settling a complaint cannot be disclosed without consent. A statement made or information given by a party for the purpose of settling a complaint cannot be disclosed without their consent.
You must show that granting the request is fair, considering the circumstances, including the interest in a timely process. For example, the Tribunal may not order disclosure without a reason for believing the third party has (or has access to) the documents, or if the request would result in disclosure of more documents than necessary or documents that are not helpful in proving important facts.
A party may only use a disclosed document for the purpose of the complaint process. A party or the third party can also ask the Tribunal to make an order to protect privacy if documents are disclosed. For example, the Tribunal may order that the parties keep the document confidential, only make the copy available to specified persons, advise those persons the documents are confidential, that no copies are to be made, and that the document is to be returned at a specified time.