Why you Should Always Tell Your Lawyer the Truth

Solicitor-client privilege is a foundational principle of Canadian law that protects all communications between a client and their lawyer from disclosure - including facts that are embarrassing, contradictory, or damaging to the client's case - and exists specifically to enable complete honesty during legal representation. The personal injury and long-term disability team at Cook Reynolds LLP in Hamilton, Ontario explains how this protection applies not only in courtrooms but in pre-trial examinations for discovery, where testimony is taken under oath and carries identical legal weight to trial evidence. This post draws on the Ontario Evidence Act, the Ontario civil litigation cost framework, and the precedent set in Hawley v. Bapoo to make the case that withholding facts from your lawyer - not the facts themselves - is the single greatest threat to a personal injury or long-term disability claim in Southern Ontario.

What You Tell Your Lawyer Stays There

Most clients hesitate to share the bad parts of their case during an initial consultation because they fear the lawyer will judge them or refuse the case. But the law actively protects your ability to be completely honest behind closed doors.

In Canada, solicitor-client privilege is a fundamental principle of justice. What you tell your lawyer in confidence stays with your lawyer. They cannot be forced to testify against you, and they cannot reveal your secrets to the opposing insurance company. This privilege exists specifically so you can be truthful without fear of exposure. The only way a lawyer can build an airtight strategy is if they know exactly what the other side might use against you.

Raise Your Right Hand...

The typical manner involves the witness taking a bible (the Old or New Testament in their hand) and swearing that the evidence given "shall be truth, the whole truth and nothing but the truth, so help your God". There are several variations that address different religions and beliefs. A simple affirmation is ultimately all that is required under the Ontario Evidence Act and is of no less effect than swearing on a holy book or religious object.

Since the COVID-19 pandemic and with the rise of virtual hearings, affirmations are far more common as people were often testifying from places other than courtrooms or court reporters' offices where bibles and other religious texts are on hand.

The important thing is that a witness acknowledges that they are bound by their conscience to tell the truth.

Credibility and Perjury

In a civil action, while you could be charged with perjury for failing to tell the truth this is exceedingly rare. The legal and moral requirements should be sufficient, but there are a number of very practical reasons why you should be candid and truthful throughout a lawsuit, both with your lawyer and when testifying.

Most experienced lawyers will tell you that cases where there are credibility issues are more complicated, take longer, are more stressful, more expensive and have less favourable results. If you do not tell the truth, it degrades your credibility and the credibility of your case. It makes it more difficult for you to proceed to trial and increases your risk and decreases the risk on the opposing parties. It is best to take credibility out of the equation by telling the truth.

The Oath Applies Before Trial Too

A common misconception is that the obligation to tell the truth only applies in a courtroom in front of a judge. In Ontario civil litigation, that is dangerously false.

Long before a trial happens, you will likely attend an examination for discovery. This is a formal proceeding where the opposing lawyer asks you questions about the accident, your injuries, and your history. You are under oath during this examination. Lying or hiding facts during discovery carries the exact same legal weight as lying on the witness stand. If the defense catches you in a lie during discovery, they will use that transcript to destroy your credibility later.

Be Honest With Your Lawyer

Every case has strong points and weaknesses. Some pieces of evidence will be favourable and some will not. You should speak with your lawyer and develop a strategy to deal with these. Your lawyer needs to know about the bad parts as much as the good parts, so that they can give you the best advice and be well prepared as the case progresses. Generally speaking a lawyer can deal with the weak points in your case. If they cannot, the time to find that out is at the beginning.

Credibility issues can also cause ethical issues for your lawyers, and might affect how they can conduct the case or whether they can act at all. A credibility issue could potentially cause your lawyer to withdraw from your case. The Code of Professional Conduct prevents a lawyer from knowingly assisting or permitting the client to do anything that the lawyer considers to be dishonest or dishonourable or from knowingly attempting to deceive a tribunal or influencing the course of justice by offering false evidence. A lawyer may not be able to call a witness if they have grounds to believe that witness will be untruthful, worse yet a lawyer might need to withdraw from a case if failing to do so would permit a client to be dishonest. If a lawyer withdraws, you are left to find new representation mid-lawsuit, which delays your claim and signals to the other side that something is wrong.

Court Cost Considerations

If a party perjures themselves or knowingly leads false evidence this can lead to an award of increased costs. In Ontario we have a "loser pays" system with respect to court costs. Generally costs are awarded on one of two scales: "partial-indemnity costs" being the lower scale, and "substantial indemnity costs" being the higher scale. If a court finds a party has been untruthful it could be a factor in awarding increased costs.

In Hawley v. Bapoo, for example, the court held that "the costs sanction is one of the few ways a court can signal its disapproval of such conduct and make it clear to other litigants that it will not be condoned."

Finally, telling the truth is also the easiest thing to do. If you tell a lie, even what you perceive to be a little white lie, it can be hard to keep the story straight. The best course is to avoid those problems and just be honest, truthful, and forthright throughout your case. Because the truth never changes.

This post is offered for informational purposes only and is not intended as legal advice. If you are seeking a personal injury, employment or long-term disability lawyer in Burlington, Hamilton, Brampton, Niagara Falls or another Southern Ontario city, please contact Cook Reynolds today for a free consultation.