Disclosure of a witness’s contact information to the opposing party: a reminder of the applicable principles

On August 16, 2021, the Court of Quebec (“Court”) rendered a judgment in Unifirst Canada Ltd. c. 9766065 Canada inc., 2021 QCCQ 7946. In the context of a case management hearing, the plaintiff asked the Court that the defendant be ordered to share the contact information of a witness whom the defendant intended to call at trial. The defendant contested this request on the grounds that the witness was not its client but only a witness to be called at trial who did not want his contact information to be shared with the plaintiff.

The Court has the power to order the disclosure of a witness’s contact information, as this information is necessary to call the witness.

First, the Court ruled that article 158, paragraph 5 of the Code of Civil Procedure, a provision allowing the court to rule on special requests made by the parties as a case management measure, grants it the power to order the defendant’s lawyer to communicate the witness’s contact information.

The Court then recapped the rights and obligations of a witness in civil matters and reminded that a witness may be called by either party, emphasizing the need to have the witness’s contact information in order to call him:

[9] In civil matters, article 269 C.C.P. permits the calling of witnesses by the parties and article 21 C.C.P. sets out the rights and obligations of the witness called. The witness has a duty to appear, testify and tell the truth. The witness has the right to be informed by the calling party of the reason they have been called, the subject matter of their testimony and the conduct of the proceeding.

[10] The same witness may be called by either party. The witness’s obligations and duties remain the same, regardless of which party calls them. In order to call a witness, the witness’s contact information is required.

(our translation)

Witnesses are not the property of the party calling them: they are the court’s witnesses and can therefore be met by either party.

The Court justified its position by referring to the criminal case of R. c. F.B., 2014 QCCS 5388, which dealt with a request made to the prosecutor to disclose the contact information of two civilian witnesses. The Superior Court relied on the rules developed in La Reine c. Mario Lepire, 2005 QCCQ 73298, which govern the relationship between lawyers and witnesses:

  • witnesses are not the property of the party who calls or summons them, but are, in law, witnesses for the court and, as such, each party is fully entitled and authorized to meet all witnesses, including those of the opposing party;
  • on the other hand, the witness must consent to the meeting and discussion, as they are not required to speak to counsel or answer questions, except under oath, in court;
  • (…)
  • when meeting with an unrepresented witness, as in this case, the lawyer has a duty to inform the person of their status and interests and to act with integrity, loyalty and honesty.

(our translation)

Counsel has a duty to keep a witness’s contact information confidential prior to a formal summons.

Finally, the Court discussed the criteria of witness security, while noting that this is typically not a real issue in civil matters, unlike in criminal proceedings. However, the Court noted that in order to protect a witness and its right to privacy, the plaintiff’s lawyer has a duty not to communicate the witness’s contact information before its official summons to the Court. In addition, the Court emphasized that it is up to the witness to decide whether or not to answer counsel’s questions before the hearing.

For all these reasons, the Court ordered the defendant to disclose the witness’s contact information, i.e., his mailing address, telephone number and e-mail address. The Court also ordered the plaintiff’s counsel to keep this contact information confidential, except in the context of a summons to appear at the hearing.

Conclusion

This judgment reiterates the guidelines for calling witnesses in civil proceedings. As in criminal proceedings, witnesses in civil matters do not belong solely to the party who calls them, but rather to the Court. Therefore, each party is entitled and authorized to meet all witnesses, including those called by the opposing party.

Nevertheless, the Court emphasized that the lawyer is still obligated to keep the contact information confidential. In order to protect witnesses and the right to privacy, counsel cannot communicate this information directly before the witness is officially summoned to testify in Court.

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