General applications
GA9: Order another party to give you documents (disclose documents)
Last updated: January 24, 2024
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Overview
Parties must give each other copies of documents relating to the complaint. The legal term is “disclose documents”. See information about disclosing documents.
Parties must share documents that they have or that they could get.
You can ask another participant to give you a copy of:
- a specific document
- a group of documents.
If they don’t, you can apply for a party to give you documents.
Legal test for an order for a party to give you documents
You must ask the other party to give you the documents. Only apply if they refuse.
You must show:
- The documents “may be relevant” to the complaint.
- Giving you the documents will help get to a “just and timely resolution” of the complaint.
1. What “may be relevant” means
You must explain how the document might help you:
- prove your case
- disprove the other side’s case
Example
A complainant says their employer fired them due to race. The employer says they restructured the business. They say this is why they ended the complainant’s employment.
The complainant asks the employer to give them documents about the restructuring. The complainant wants to show that this was not the real reason for the termination.
Example
A complainant claims 1-year wage loss as a remedy. The respondent says the complainant should have got a job earlier.
The respondent asks the complainant to given them documents about their job search. The respondent wants to show that the complainant’s job search wasn’t good enough.
2. Exceptions
Parties do not need to share certain kinds of documents. The legal term is “privileged” documents. The Tribunal cannot consider these kinds of documents even if they help your case.
Examples:
- A letter from a lawyer giving legal advice. The legal term is “solicitor-client privilege”.
- The main purpose for making information is the complaint. The legal term is “litigation privilege”.
- The purpose for making the information is settling the complaint. The legal term is “settlement privilege.”
Generally, a party who doesn’t want to share a document must show four things:
- It is about a confidential communication
- The relationship needs confidentiality
- The public sees this kind of relationship as important – it should be protected
- Sharing the document would hurt the relationship more that it would help the complaint process
Examples of protected relationships:- Grievor and union representative
- Doctor and patient
- Priest and penitent
3. Just and timely resolution of the complaint
You must show that giving you the documents will help get to a “just and timely resolution” of the complaint.
The Tribunal will consider the effect on the process and the outcome:
- How will it affect the time to solve the complaint?
- How much would it cost the other side?
- Would it affect a participant’s ability to present their side?
- Would it affect a participant’s chance to have a say about something important? For example, something that could affect the outcome of the complaint.
Usually, getting a relevant document will help you prove your case.
But, in some cases, giving you the documents might affect the process.
The Tribunal may consider things like:
- Will giving you the documents delay the hearing?
- How many documents are you seeking?
- If it is a lot of documents, how much will they help your case?
Privacy concerns
Documents parties share are confidential.
A party can only use a document from the other side for the complaint process. See rule 23.1 of the Tribunal’s Rules of Practice and Procedure.
You might want more protection for your privacy if you have to share a sensitive document.
You can ask the Tribunal to make an order to protect privacy.
Example
The party getting the document must:
- keep the document confidential
- only share the document with specific persons
- tell those persons the document is confidential
- make no copies of the document
- return or destroy the copy at a specific time