What is documentary discovery in an Ontario lawsuit and what do I have to disclose?

In Ontario civil litigation, documentary discovery is the process by which each party must identify and produce documents relevant to the issues in the lawsuit. Under Rule 30 of the Rules of Civil Procedure, each party must serve an Affidavit of Documents — a sworn list of every relevant document in their possession, control, or power, organized into three schedules: documents they will produce, documents they claim privilege over (such as lawyer-client communications), and documents that existed but no longer do.

The obligation is broad. A "document" includes not only paper records but also electronic files, emails, text messages, voice recordings, photographs, videos, and any other form of recorded information. The duty to disclose is ongoing — if new relevant documents come into your possession after filing your affidavit, you must supplement it.

Deliberately withholding relevant documents, destroying them once litigation is anticipated, or providing a misleading affidavit are serious breaches that can result in court sanctions, cost awards, or adverse inferences at trial. The other side can also compel you to answer questions about your documents during oral examinations for discovery. If you are in litigation and receive a demand for documents, work closely with your lawyer to ensure your affidavit is complete and accurate — this is not an area where shortcuts are safe.