Handle With Care: Joint Document Books In Civil Trials

• Published date: 26 February 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: WeirFoulds LLP
• Author: Mr J. Gregory Richards

Two cases that the Ontario Court of Appeal decided in the last year illustrate how much thought and care must go into preparing a Joint Document Book (JDB) for a civil trial. Errors made regarding JDBs were key to the Court allowing both appeals and ordering new trials. Such books are regularly filed in commercial cases and other civil actions, so it is important to understand the rulings.

The Two Court of Appeal Decisions

In the first case, Girao v Cunningham, 2020 ONCA 260, the plaintiff sued over injuries that she suffered in a car accident. The Court of Appeal found that the trial had been unfair to the plaintiff, a self-represented litigant. This unfairness included the defence dropping "a massive and selectively redacted 16 volume 'Joint Trial Brief' on the appellant, who has substantial difficulty with the English language, something of which the defence was well aware" (Girao, para. 21).

The second case, Bruno v Dacosta, 2020 ONCA 602, involved an action for damages arising from an assault that took place in a detention centre. The Court of Appeal held that the trial judge's reasons for decision were insufficient to permit meaningful appellate review. The Court found that errors made in the admission and use of documents in the JDB contributed to the deficiency of the reasons (Bruno, para. 53).

Questions to Address Concerning Every JDB

The Court of Appeal in Girao held that there are specific questions that both counsel and a trial court must address "in considering how the documents in the joint book of documents are to be treated for trial purposes" (para. 33). The Court quoted this same list of questions in deciding Bruno (para. 53):

1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?
2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?
3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?
4. Are the parties able to introduce into evidence additional documents not mentioned in the document book?
5. Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?
6. Does any...