Duty of Solicitor in Preparing an Affidavit of Documents

The very recent British Columbia Court of Appeal decision in Henriques v. Spraggs, 2008 BCCA 282 (CanLII) contains a useful summary of the duty of a solicitor in preparing an affidavit of documents:

[230] Boxer v. Reesor (1983), 43 B.C.L.R. 352, a decision of Chief Justice McEachern, sets out the responsibility of a solicitor in the preparation of his client's list of documents. He said at p. 357:

The responsibility of a solicitor in connection with the preparation of a list of documents has often been stated. I regard the following extract from The Conduct of Civil Litigation in British Columbia, Fraser & Horn, 1978, vol. 1, pp. 276-77, to be an accurate statement of the law except that in this province we do not require an order for production and lists of documents are no longer verified by affidavit:

Nowhere in civil procedure is the responsibility of the lawyer greater than in the area of discovery of documents.

This is partly because the lawyer's concept of relevancy is ordinarily more extensive than that of the client. It seems rarely to occur to a litigant that such things as cancelled cheques, receipts, birthday cards, telephone bills and the like might have a bearing on the case. A kind of documentation which a client notoriously fails to produce, unless specifically asked to do so by his lawyer, is the interoffice memo, sometimes a rich and critical source of information.

Additionally, the litigant, owing no special duty of loyalty to the integrity of the judicial system, may be unenthusiastic about disclosing the existence of documents harmful to his case. As an officer of the Court, the lawyer has the responsibility to police the conscience of his client in this area.

The process of discovery of documents tends to pinch most, as one might expect, where the party from whom discovery is sought has numerous records to go through. The task of persuading a client to undertake this duty faithfully can be considerable.

Careful attention should be paid to - and the client questioned about - documents which have, either innocently or corruptly, passed out of his possession, by destruction or otherwise.

The lawyer's duty was canvassed in the House of Lords, where Lord Wright put the matter as follows:

'The order of discovery requires the client to give information in writing and on oath of all documents which are to have been in his corporeal possession or power, whether he is bound to produce them or not. A client cannot be expected to realize the whole scope of that obligation without the aid and advice of his solicitor, who therefore has a peculiar duty in these matters as an officer of the court carefully to investigate the position and as far as possible see that the order is complied with. A client left to himself could not know what is relevant, nor is he likely to realize that it is his obligation to disclose every relevant document, even a document which would establish, or go far to establish, against him his opponent's case. The solicitor cannot simply allow the client to make whatever affidavit of documents he thinks fit nor can he escape the responsibility of careful investigation or supervision. If the client will not give him the information he is entitled to require or if he insists on swearing an affidavit which the solicitor knows to be imperfect or which he has every reason to think is imperfect, then the solicitor's proper course is to withdraw from the case. He does not discharge his duty in such a case by requesting the client to make a proper affidavit and then filing whatever affidavit the client thinks fit to swear to.' (Myers v. Elman, [1940] AC. 282 at 322, [1939] 4 All E.R. 484 (H.L.)).

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
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