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Preparing Witness Disclosure: Notice of Likely Witnesses and Other People Holding Knowledge of the Matter
Question: What are the consequences of not properly completing Form 13A – List of Proposed Witnesses in Small Claims Court proceedings in Ontario?
Answer: Failing to accurately complete Form 13A – List of Proposed Witnesses at least 14 days before the settlement conference could lead to serious evidentiary repercussions, potentially affecting the credibility of your case under Rules of the Small Claims Court, O. Reg. 258/98. Ensure fairness and transparency by accurately disclosing all individuals with relevant knowledge. For help navigating Small Claims Court procedures and ensuring compliance, consider reaching out to Caruso Legal Services for personalized support.
Providing Details of Potential Witnesses
Within the context of a Small Claims Court proceeding, one of the most important, yet often misunderstood, steps in the process is the preparation and service of a properly completed Form 13A – List of Proposed Witnesses document. This document plays a vital role in ensuring fairness and transparency leading up to trial, and a failure to properly complete the Form 13A – List of Proposed Witnesses document may result in serious evidentiary consequences or diminished credibility in the eyes of the court.
The Law
The relevant rule, Rule 13.03(2)(b) of the Rules of the Small Claims Court, O. Reg. 258/98, mandates that each party must serve and file a Form 13A at least fourteen (14) days prior to the Settlement Conference hearing. The court uses this information to better understand the scope of testimonial evidence and the potential factual narratives that may be presented at trial. The list is also used to provide opposing parties with the opportunity to contact or even summon third-party witnesses who may offer clarifying or contradictory information within the search for truth. Specifically, Rule 13.03(2)(b) states:
Disclosure
13.03 (2) At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court, ...
(b) a list of proposed witnesses (Form 13A) and of other persons with knowledge of the matters in dispute in the action.
Purpose
Form 13A serves a dual purpose. Firstly, it provides the court and opposing party with a list of the individuals the submitting party intends to call as witnesses at trial. Secondly, and equally importantly, it requires the disclosing party to identify any other individuals with knowledge of the matters in dispute, regardless of any intention to actually call these individuals as witnesses. This second requirement is frequently overlooked, yet its importance is underscored in Ontario jurisprudence and the ethical duty of full and fair disclosure.
Structure
A diligent examination of Form 13A reveals two distinct sections:
- List of Proposed Witnesses
This section is reserved for listing individuals whom the party intends to call to provide live testimony at trial. The form requires the full name, address, phone number, and email address of each proposed witness. Use of the address of a representative or law firm, rather than an actual address for contact and service of the witness, may result in procedural inefficiencies or difficulties in effecting a summons and may be frowned upon by the court. - List of Other Persons with Knowledge
This often-neglected section requires disclosure of all other individuals who possess relevant knowledge about the matters in dispute. The duty to disclose arises from the presence of relevant knowledge, without regard to whether the individual will be called as a witness. Accordingly, this section is triggered by relevance, rather than reliance.
Disclosing Persons Holding Knowledge
The importance of this broader disclosure requirement was addressed directly in the decision of Geensen v. Kag Developments Ltd., 2017 CanLII 21822, wherein the court expressed concern regarding the failure of a party to disclose the names of bar patrons involved in a physical altercation, despite the absence of an intention to call those individuals as witnesses. Within the case, it was expressly said:
34. My experience has been that parties and representatives routinely overlook the second half of Form 13A. The first half requires a list of the parties “proposed witnesses” or in other words those the party may call to testify at trial. In this case the defence completed that section albeit giving only the law firm’s address, which is unsatisfactory since it is not an address for service of a summons on the proposed witnesses.
35. The second half of Form 13A requires disclosure of “other persons with knowledge of the matter in dispute in this case”. That requirement is triggered by knowledge of the other persons and not by whether the party intends to call them to testify. In other words it turns on relevance, not reliance. In this case the identity of the other participants in this bar brawl was not only relevant but highly material and obviously so. The defence failed to honour its disclosure obligations in that regard. Had proper disclosure been given, plaintiff’s counsel could have contacted Mr. Roszell or the other pool players, and he might then have determined before trial that there was evidence that his client had started the brawl. The option to contact third party witnesses is the purpose behind that part of Form 13A.
This judicial commentary underscores the rationale for full disclosure—namely, that the presence of individuals with material knowledge should be openly acknowledged, to permit both parties the opportunity to make informed decisions about evidence and potential testimony.
“The second half of Form 13A requires disclosure of “other persons with knowledge of the matter in dispute in this case”. That requirement is triggered by knowledge of the other persons and not by whether the party intends to call them to testify. In other words it turns on relevance, not reliance.”
~ Deputy Judge Winny
Geensen v. Kag Developments Ltd., 2017 CanLII 21822
Requirements and Considerations
When preparing Form 13A, approach the task with diligence and foresight:
- By ensuring completeness via inclusion of all individuals with relevant knowledge. If there is any uncertainty regarding relevance, it is prudent to err on the side of inclusion;
- By providing accurate and usable contact information that enables effective communication whereas the ability to serve a Summons depends upon the availability of complete and practical contact details;
- By maintaining objectivity whereas the obligation to disclose extends to all persons with material knowledge, regardless of whether the anticipated testimony may support or contradict the position of the disclosing party; and
- By updating the Form 13C as necessary when new information emerges or when new individuals are identified as possessing relevant knowledge, the Form 13A should be amended and re-served accordingly.
Conclusion
Disclosure under Form 13A reflects more than a procedural obligation. It functions as a substantive mechanism to promote fairness, transparency, and procedural integrity in Small Claims Court litigation. Properly preparing and serving a comprehensive Form 13A—particularly with respect to individuals possessing relevant knowledge who may remain outside the courtroom—demonstrates a party’s respect for due process and evidentiary fairness. As emphasized in Geensen, the effectiveness of a trial process may depend significantly on whether both parties have the opportunity to explore all available sources of material fact.
