CANADA Law and Practice Contributed by: Sylvie Rodrigue, Grant Worden, Nicole Mantini and Anne Merminod, Torys LLP
2.7 Rules for Disclosure of Documents in Product Liability Cases In common law jurisdictions, parties are required to produce all documents in their power, possession or control that are relevant and material to the issues in dispute. This includes documents that support or undermine a party’s own case or the opposing party’s case. The definition of a “document” is interpreted broadly and encompasses not only paper records, but also electronic communications, emails, databases, audio and video recordings, photographs, and other forms of recorded information. However, most Cana - dian courts also apply a principle of proportionality to the discovery process, such that parties are expect - ed to take reasonably proportionate steps to collect and produce documents based on the expected rel - evance/materiality of the information they contain. In Quebec, the parties have no similar positive obli - gation to produce documents – disclosure is made through requests for documents and oral discovery, and only the documents covered by those requests must be disclosed. Relevance is determined by whether the document could reasonably be expected to advance a party’s case or damage that of an adversary. Materiality refers to whether the document is logically connected to a fact in issue. In the context of product liability litiga - tion, relevant documents often include records relat - ing to the design, manufacturing, testing, warnings, quality assurance, regulatory compliance, marketing, distribution, and post-market surveillance of the prod - uct in question. Documents evidencing prior incidents, complaints, internal evaluations, and communications with regulators may also be considered relevant. Parties that fail to comply with disclosure obligations may face consequences during litigation, including court orders for further and better disclosure, cost sanctions, or struck pleadings for persistent non- compliance. In extreme cases, courts may exclude evidence that was not disclosed properly or in a timely manner, or draw adverse inferences. Certain documents may be protected from disclosure under the doctrine of privilege. The most common forms are:
• solicitor-client privilege, which protects communi - cations between a lawyer and client made for the purpose of seeking or receiving legal advice; • litigation privilege, which applies to documents prepared for the dominant purpose of the litigation; and • settlement privilege, which protects the confiden - tiality of communications made during settlement negotiations between the parties. 2.8 Rules for Expert Evidence in Product Liability Cases The admissibility and use of expert evidence are gov - erned by the rules of evidence as set out in both com - mon law and statutory frameworks, as well as relevant provincial rules of civil procedure. The court retains a gatekeeping function to determine whether proposed expert evidence meets the thresh - old for admissibility: namely, the evidence must be relevant to a material issue and necessary to assist the trier of fact in understanding facts of a technical or specialised nature. The expert must be properly qualified, which means they have acquired expertise through study and/or experience outside the knowl - edge of a layperson. In most provinces, procedural rules require experts to provide an acknowledgement of their duty to the court to provide evidence that is fair, objective, and non-partisan and that is limited to matters within their area of expertise. Procedurally, parties are required to disclose their expert witnesses in advance of trial; however, there are no pre-trial expert discoveries/depositions. Most jurisdictions require a detailed written report to be delivered before an expert can testify. This must set out the expert’s qualifications, the instructions they received, the factual basis for their opinions, the meth - odology used, and the conclusions reached. Failure to comply with disclosure requirements may result in the exclusion of the expert’s testimony. 2.9 Burden of Proof in Product Liability Cases In common law provinces, under the laws of contract and negligence, a plaintiff must prove the required elements of their case on a balance of probabilities. In the negligence context, the plaintiff must estab - lish that the defendant breached the relevant stand -
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