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Order someone who is not a party to give you documents (Disclose documents)


Information Sheet GA 10

This information sheet gives you information you need to apply for a non-party to give you documents.

Parties must share documents relating to the complaint.

You might think someone else has a document that could help your case.

If you think someone else has a document that could help your case, take these steps:

1. Ask the other side (party)

Ask the party if they have control over the document and will get it for you.

A party has control over a document if they can get it by:

  • asking for it
  • consenting to the person who has it to give them a copy

2. Apply to the Tribunal

If the other party doesn’t get you the document, you can apply to the Tribunal.

If they refuse to get it for you, apply for an order that the party get you the document.

Apply for an order for the non-party to give you the document in two situations:

  • If the party doesn’t comply with an order to give you a copy.
  • If the party can’t get you a copy because they don’t control the document.

If you apply for an order for a non-party to give you the document:

  • Say in your application which situation applies:
    • the party has not complied with an order
    • no other party controls the document
  • Complete an Order to Produce Documents Form and file it with your application
  • Send the other party a copy of your application
  • Don’t send a copy of your application to the non-party
  • The tribunal will decide if you meet the legal test before you send anything to the non-party

3. Send the non-party a copy of the order

If the Tribunal orders the non-party to give you the document, send the non-party a copy of the order right away. Make sure the order includes a notice telling the non-party that they can object within 14 days from the date the Tribunal made the order.

Keep a record about how and when you sent the non-party the order.

You must try to get the documents from the other side first. See steps 1 & 2 above.

When you apply 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:

  1. It is about a confidential communication
  2. The relationship needs confidentiality
  3. The public sees this kind of relationship as important – it should be protected
  4. Sharing the document would hurt the relationship more that it would help the complaint process

Examples of protected relationships

  • Doctor and patient
  • Priest and penitent
  • Grievor and union representative

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?

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

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