Documentary Discovery in Ontario: Affidavit of Documents Explained

Before anyone sits down for an oral examination in an Ontario civil lawsuit, the parties must exchange their documents. This step — called documentary discovery — is governed by the Rules of Civil Procedure and requires every party to produce a sworn document called an affidavit of documents. Getting this right is not optional. Failing to disclose relevant documents, or doing it sloppily, can result in costs sanctions, adverse findings at trial, or worse.

This guide explains what documentary discovery involves, what you must disclose, what you can keep confidential, and what happens when documents are missing or withheld.

What Is Documentary Discovery?

Documentary discovery is the process by which parties to a lawsuit exchange all documents relevant to the issues in the case. "Documents" is defined broadly in Ontario civil litigation — it includes not just paper records but also:

• Emails and text messages
• Spreadsheets and databases
• Photographs and videos
• Electronic files of any kind
• Social media posts (if relevant)
• Voicemail recordings

If it contains or records information relevant to the issues in the pleadings, it is likely a document for discovery purposes.

The Affidavit of Documents

The formal mechanism for documentary disclosure is the affidavit of documents — a sworn statement in which a party lists all relevant documents and swears to the accuracy of the list. Under the Rules of Civil Procedure, the affidavit is organized into three schedules:

Schedule A — Documents You Have and Will Produce

These are all documents in your possession, control, or power that are relevant to the issues in the lawsuit — and that are not subject to privilege. You must disclose these and make them available for inspection by the other side.

Schedule B — Documents You Have but Claim Privilege Over

If a document is relevant but protected by a recognized privilege, you must still list it — but you can refuse to produce it. Common privileges include:

• Solicitor-client privilege: communications between a client and their lawyer for the purpose of giving or receiving legal advice
• Litigation privilege: documents created for the dominant purpose of actual or anticipated litigation (e.g., a report prepared by your lawyer in anticipation of this case)
• Settlement privilege: communications made in the context of genuine settlement negotiations

You must describe each privileged document well enough for the other side to assess the privilege claim — but without revealing the privileged content itself.

Schedule C — Documents You Once Had but No Longer Have

If you had a relevant document but it no longer exists, you must disclose that fact and explain: when it was destroyed or lost, how, and by whom. This is not a blank get-out-of-jail card. If relevant documents were destroyed after litigation was anticipated, courts can draw adverse inferences or impose penalties.

How Far Back Do You Have to Look?

The temporal scope of production depends on the issues in the case. If the lawsuit involves a business relationship that began ten years ago, documents from that entire period may be relevant. Talk with your lawyer about the appropriate time range before doing a document collection.

Continuing Obligation to Disclose

Your disclosure obligation does not end when you serve the affidavit. Under the Rules, if you subsequently discover additional relevant documents — or if new documents come into existence — you have an ongoing duty to supplement your affidavit. Failing to disclose a newly discovered relevant document is a breach of your obligations.

Inspection of Documents

Listing a document is not the same as producing it. Once a document appears in Schedule A, the other party is entitled to inspect it — actually view or receive a copy. Parties usually exchange copies of all Schedule A documents by agreement rather than requiring in-person inspection, but either method is permissible.

Copies must be legible and complete. Redacting portions of documents (other than privileged sections) is generally not allowed without a court order.

What If a Party Fails to Disclose?

Courts take non-disclosure seriously. Consequences for failing to disclose relevant documents include:

• Court orders compelling production: the opposing party can bring a motion and the court can order production
• Costs against the non-disclosing party: motions arising from documentary failures attract costs orders
• Adverse inferences at trial: if you cannot explain why a document is missing, the trial judge may infer it would have been harmful to your case
• Striking out pleadings: in egregious cases of deliberate non-disclosure, a court can strike a party's pleadings

Practical Steps: Collecting Your Documents

When a lawsuit begins, start collecting documents immediately. Here is a practical framework:

1. Preserve everything: do not delete emails, texts, or files. Preservation should begin the moment litigation is anticipated — not just when the claim is filed.
2. Search systematically: go through email accounts, file servers, cloud storage, personal devices, and paper files.
3. Review before producing: your lawyer must review documents before the affidavit is sworn to identify privileged materials, assess relevance, and catch anything requiring explanation.
4. Organize by date: producing documents in chronological order makes everything easier for everyone.

Simplified Procedure and Documentary Discovery

Under the Simplified Procedure (for claims at or below $200,000 as of writing — verify the current threshold), the affidavit of documents process is the same, but oral discovery is more limited. Good documentary disclosure is even more important in Simplified Procedure cases because the oral examination right is curtailed.

Frequently asked questions