Scope of production and discovery NEW  
Requests for further production NEW  
Effect of failure to disclose or produce for inspection NEW  
Preservation of evidence
Spoliation NEW  
Proportion and Marginal Utility NEW 
Document Retention Policies
Acceptable Use Policies 
Form of production NEW  
Meet and confer
Process for review of electronic documents for relevance and privilege
Disclosure of privileged and private communications
Use of a third-party Inspector and Electronic Discovery vendor to retrieve information from electronic sources
Cost Shifting
Metadata, deleted and hidden information
Duplicate Documents
Admissibility of Internet Information NEW  
Examination of an IT Representative
Forensic Collection and Preservation NEW  
Privacy Issues NEW  
Third Party Information and Norwich orders NEW 
Anton Piller Orders NEW 
Temporary Internet Files

Scope of production and discovery

30.01 (1) (a) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194, interprets "document" to include: "a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form". This interpretation builds on the definition of "document" in s. 1.03 (1) to include "data and information in electronic form"; “electronic” includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means, and “electronically” has a corresponding meaning; (“électronique”, “par voie électronique”).

Business records to be admitted in evidence. Section 30 of the Canada Evidence Act.

Authentication of electronic documents. Section 31.1 of the Canada Evidence Act. Following sections deal with "the best evidence rule in respect of an electronic document" and with the "presumption of integrity".

Definitions. Section 31.8 of the Canada Evidence Act. Includes definitions of an "electronic document", data, computer system, and "electronic documents system".

NEW  eBay Canada Limited v. Canada (National Revenue), 2008 FCA 141 (CanLII) Date: 2008-04-17 Docket: A-105-08 Sharlow J.A. Motion by eBay to stay execution of a judgement authorizing Revenue Canada to require eBay to to provide information to the Minister about PowerSellers whose eBay registration indicates a Canadian address. The required information includes the names of the PowerSellers, their contact information, and the amount of their gross annual eBay sales. Dismissed. LexisNexis summary is here.

eBay Canada Limited v. Canada (National Revenue), 2007 FC 930 (CanLII) Date: 2007-09-18 Docket: T-2124-06. Hughes J. An application to review an order to divulge account, address and sales volume information about Canadian eBay sellers who qualified for the PowerSeller program by virtue of the volume of their sales. The information on the PowerSellers is stored in servers in the U.S., but can be accessed by eBay Canada. "[16] The issue before me is, therefore, whether section 231.2 of the Income Tax Act permits an Order that will require a Canadian resident to provide information to which it has access in Canada but is stored in data facilities owned by another party located outside Canada." "[23] The issue as to the reach of section 231.2 when information, though stored electronically outside Canada, is available to and used by those in Canada, must be approached from the point of view of the realities of today’s world. Such information cannot truly be said to “reside” only in one place or be “owned” by only one person. The reality is that the information is readily and instantaneously available to those within the group of eBay entities in a variety of places. It is irrelevant where the electronically-stored information is located or who as among those entities, if any, by agreement or otherwise asserts “ownership” of the information. It is “both here and there” to use the words of Justice Binnie in Society of Composers, Authors and Music Publishers of Canada v. Canadian Ass’n of Internet Providers, [2004] 2 S.C.R. 427 at paragraph 59." 

Brian Dressler Medicine Professional Corporation, order HO-005 of the Information and Privacy Commissioner/Ontario, 2007-06-07. Ann Cavoukian, PhD. A video image of a woman using a washroom in a methadone clinic was intercepted by a wireless device located in a car near the Clinic. On page 7 of the order, the Commissioner writes, "In the present case, at the time that the Clinic broadcast the video image, a “record” was created in the sense of an account of something that occurred ..., specifically, a woman using the washroom to provide a urine sample. That record was created electronically in the form of encoded data. The wireless transmission of this data is analogous to a conversation, in which sound is “encoded” with information through the use of language." She subsequently goes on to write, "Further, I find that when the CCTV camera captured the image of the woman, the Clinic created information in “recorded form” under section 4(1) of the (Personal Health Information Protection) Act."

Dulong v. Consumers Packaging Inc., [2000] O.J. No. 161 January 21, 2000 OSCJ Commercial List Master Ferron.. The court held that a broad request from a plaintiff that the corporate defendant search its entire computer systems for e-mail relating to matters in issue in the litigation was properly refused on the grounds that such an undertaking would, "having regard to the extent of the defendant's business operations, be such a massive undertaking as to be oppressive". (para 21).

Joseph Pruner Ltd. v. Ford Motor Co. of Canada, [1992] O.J. No. 88 January 20, 1992 McWilliam J. The court ordered production of "all data relating to vehicle deliveries from the defendant to the Ford and Mercury Dealerships in Ottawa and Hull for the calendar years 1980-1988. The defendant has a system called the GRS which permits it to keep on tapes the order date, the factory leaving date, the dealer receiving date, and the date each vehicle was sold by vehicle identification number (VIN). The information on these tapes are relevant, the plaintiff says, to the issue of favouritism in the provision of Ford Tempos in 1984 to a competing dealer."

Optimight Communications Inc. v. Innovance Inc., 2002 CanLII 41417 (ON C.A.), Parallel citations: (2002), 18 C.P.R. (4th) 362; (2002), 155 O.A.C. 202, 2002-02-19 Docket: C37211. Moldaver, Sharpe and Simmons JJ.A. The appellants appeal a Letter of Request issued in a California court seeking the assistance of Ontario courts in enforcing an order for production of 34 categories of documents by Innovance, Inc. Appellate Court limited the scope of production and discovery. Schedule A details the electronic sources and search terms.

Sourian v. Sporting Exchange Ltd., 2005 CanLII 4938 (ON S.C.) 2005-03-02 Docket: 04-CV-268681CM 3. Master Calum U.C. MacLeod. Production of information from an electronic database. An electronic database falls within the definition of “document” in our (Ontario) rules. The challenge in dealing with a database, however, is that a typical database would contain a great deal of information that is not relevant to the litigation.  Unless the entire database is to be produced electronically together with any necessary software to allow the other party to examine its contents, what is produced is not the database but a subset of the data organized in readable form.  This is accomplished by querying the database and asking the report writing software to generate a list of all data in certain fields having particular characteristics.  Unlike other documents, unless such a report is generated in the usual course of business, the new document, the requested report (whether on paper or on CD ROM) would have to be created or generated. Ordering a report to be custom written and then generated is somewhat different than ordering production of an existing document.  I have no doubt that the court may make such an order because it is the only way to extract the subset of relevant information from the database in useable form. On the other hand such an order is significantly more intrusive than ordinary document production. A party must produce relevant documents but it is not normally required to create documents.  Accordingly such an order is discretionary and the court should have regard for how onerous the request may when balanced against its supposed relevance and probative value. (Italics P.D.)

Robak Industries Ltd. v. Gardner et al, 2005 BCSC 1133 (CanLII), 2005-08-11 Docket: S046557. Master A.N. Patterson. Counsel for the plaintiff wrote to counsel for the defendant requesting document disclosure.  Such disclosure was to include such things as emails and cell phone records. Not every email relating to xxx has been disclosed. In addition, it does not appear that cell phone records for the period in question have been produced.  It is clear that there is to be wide production of documents and that if it is clear that documents have not been produced through inadvertence or otherwise, an affidavit of documents is appropriate.

Irwin Toy Ltd. v. Doe,  12 C.P.C. (5th) 103 (ON S.C.), September 8, 2000 Docket: 00-CV-195699CM. Wilkins J. Plaintiffs brought action for damages for defamation arising out of publication of electronic mail message to approximately seventy-five recipients using the internet. The moving parties seek to obtain the identity of "Joe Doe". Further investigation identified that this particular internet alias was tracked to an internet protocol address that was further traced and ascertained to refer to a subscriber of iPrimus Canada, an internet service provider. "The moving party demonstrated on the affidavit material that it has a prima facie case as against Joe Doe in respect to the allegations of claim made in the Statement of Claim. In my view, that is the appropriate test for the court to apply in determining whether or not to order a non-party internet service provider to disclose the identity of an internet protocol address. (Italics P.D.)...iPrimus Canada, is directed to provide that information to the plaintiffs.

Northwest Mettech Corp. v. Metcon Services Ltd., 1996 CanLII 1056 (BC S.C.)  1996-08-30 Docket: C955055. Master B.M. Joyce. In my view the plaintiff is not entitled to production of the hard drive itself. They are entitled to production of only the relevant electronic data which is resident on that hard drive. (Italics P.D.) As I understand it, a computer hard drive is simply a medium on which data is stored on a semi-permanent basis in the form of electronic impulses. It may be thought of as an electronic filing cabinet which contains electronic files, each of which in turn contains electronic documents. The defendants are obliged to list all relevant documents of whatever form (including electronic documents resident on computer hard drives). In my view they are not required to list the entire contents of nor are they required to produce their entire electronic filing cabinet any more than a party is required to list or to produce the complete contents of its steel filing cabinets which house documents which are in paper format.

Walter Construction (Canada) Ltd. v. Greater Vancouver Sewerage & Drainage District, Heard: April 15, 2003; May 7, 2003 Judgment: October 17, 2003 Docket: Vancouver S015854, A980651. V. Gray, J. Documents are defined in Rule 1(8) (British Columbia) as follows: 'Document' has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device." In Prism Hospital Software Inc. v. Hospital Medical Records Institute  (1991), 62 B.C.L.R. (2d) 393, Mr. Justice Parrett held that the word "document" must be given an expansive meaning and relates to any information stored by any means, including magnetic media.  Walter is entitled pursuant to the Rules to have access to the electronic documents.  It may be that the electronic documents include documents which are partly or fully privileged, or which include irrelevant information which may be sensitive.  There may also be other difficulties associated with producing the electronic documents. If the parties cannot agree on what electronic documents must be produced, they have liberty to apply for a further order. (Italics P.D.)

Procter & Gamble Co. v. Kimberly-Clark of Can. Ltd., 25 C.P.R. (3d) 244, 30 F.T.R. 178 April 13, 1989 Docket: Doc. T-1493-86. Teitelbaum J. The issue was whether plaintiff was entitled to inspect the originals of the computer tapes and whether or not plaintiff was entitled to take copies of the above listed computer tapes pursuant to Rule 453 of the Federal Court of Canada Rules. Counsel for the defendant conceded that the computer tapes that it listed on its Rule 447 and 448 List of Documents were documents and conceded that the plaintiffs were entitled to take a copy of the documents (computer tapes). The issue was the format of the copy. Counsel stated that what was meant by the Rule was that the defendant was only required to give to the plaintiffs a copy of everything contained on the computer tape "in a human readable form". There was no necessity, he stated, to have a copy of the computer tape itself made. (Italics P.D.) The court ruled "It is not enough for the defendant to offer to provide a copy of the document "in a human readable form". The document listed on the List of Documents is not the "human readable form" of the computer tape but the computer tape itself."

Requests for further production

NEW  Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 (CanLII) Date: 2008-06-11
Docket: 0701-0179-AC. Reasons for judgment reserved by Carole Conrad J.A.  Appeal from an order by the case management judge to produce the imaged hard drives in specie and of drives containing the "hybrid" files (those patients whose care was partially funded by the CHR). Reflecting on the decision in Spar Aerospace Limited v. Aerowerks Engineering Inc. , the Court stated: "While I agree with Madam Justice Veit’s decision, I would add a caveat. Even in circumstances where it is clear that a litigant is thwarting the litigation process, and the court deems it appropriate to order production of a hard drive, measures should be taken to protect disclosure of irrelevant and immaterial information which the producing party objects to produce. Although litigation confidentiality exists, many times that will not be sufficient to protect personal, confidential and private material. A judge should always hear representations as to how information that is neither material nor relevant can be protected from exposure, and frame any production order in the least intrusive manner." (para 41)

NEW  Passerello v. Minaco, 2007 CanLII 39891 (ON S.C.) Date: 2007-02-08 Docket: 06-CV-299791PD1 Master M.J. Sproat. Plaintiff moves to compel answers in a dispute about a share purchase transaction. Defendant had produced very few emails, which lead to the conclusion that there had been an inadequate search of electronic sources of information. “In my view, a proper search of the electronic documents must be done, including a search of the hard drive and back up tapes, and all relevant documents produced. In addition, counsel for the defendants must advise as to the nature and the scope of the search efforts to the plaintiffs.”

Ritchie v. 830234 Ontario Inc. (Richelieu Hardware Canada Ltd.), 2008 CanLII 4787 (ON S.C.) Date: 2008-01-18 Docket: CV-07-0213 D.C. Shaw J. In this suit for wrongful dismissal, the plaintiff moves for an order “that the defendant preserve, retrieve and produce all relevant electronic documents in its possession or control The plaintiff seeks to have a third party information technology company image and store the contents of all computers, mobile handheld devices and other electronic devices of every kind used by the defendant. The plaintiff then wants the defendant to review the imaged file index to determine if privilege is claimed and to produce in electronic form all relevant documents for which privilege is not claimed.” The defendant has produced the attachment to one email as the one relevant document. Defendant did not produce the container email, claiming the email had no relevant information and has long since been purged. Plaintiff has produced “no evidence on this motion that there is any other relevant data and information in electronic form”, but speculates about the existence of other e-mails exchanged among his immediate supervisor, the regional manager and the general manager of the company. Plaintiff asks the court to assume there were other (relevant) emails. Citing Master Dash in White v. Winfair 2005 CanLII 13037 (ON S.C.), the Court declined to grant the order based on the lack of convincing evidence of the existence and relevance of the documents sought. The Court goes on to state that the plaintiff may renew its motion if evidence of other relevant documents arises during examinations for discovery. The Court did, however, order the defendant to "use its best efforts to retrieve this (container) e-mail and produce it and the attachment, in electronic form to the plaintiff."

Commissioner of Competition v. Labatt Brewing Company Limited, 2008 FC 59 (CanLII) Date: 2008-01-28 Docket: T-325-07 Anne L. Mactavish J. Decision to set aside a production order granted to the Commissioner of Competition on an ex parte basis. Among the criteria included excessive burden on respondents and requests for information that has already been produced or which is not relevant to the inquiry. Respondents also asserted that the the information provided by the Commissioner in support of its application was misleading, inaccurate or incomplete, such that the order should never have been made. See Dan Michaluk's blog for more information.

Shell Canada Limited v. Superior Plus Inc., 2007 ABQB 739 (CanLII) Date: 2007-12-03 Docket: 0301 09751 Dennis G. Hart, J.C.Q.B.A. This action is a suit for damages from the evacuation of a mine site resulting from a fire caused by a leak from the defendant’s propane delivery truck. The plaintiffs had also sued their insurance company for damages related to the fire and cost overruns during construction of the mine. The statement of defence had been amended with new allegations that the plaintiffs had failed to ensure a functioning and commissioned fire protection system. In this motion, the defendant alleges that the plaintiff is withholding relevant and material records, that the search terms were inadequate, and seeks further production. The insurance collection of 50,000 documents included 15,000 related to the fire. These 15,000 documents were reviewed by hand for relevance to the plaintiff’s suit against the defendant. This review was supplemented with a keyword search. The remaining 35,000 documents in the insurance collection were searched for relevant documents using less intensive search criteria. The Court concluded that the approach taken by the plaintiffs to review the insurance documents complied with Principle 10 of the Ontario eDiscovery Guidelines, was reasonable, and that the additional production sought by the defendant will not yield relevant and material records.(para 41) The Court observed that the adequacy of the search terms would not be an “issue at all if counsel had collaborated on the terms as suggested in the Ontario Guidelines.” (para 36) Dan Michaluk’s blog has an excellent summary of the case.

Spielo Manufacturing and Manship v. Doucet and Dauphinee, 2007 NBCA 85 (CanLII) Date: 2007-11-15 Docket: 99/07/CA M.E.L. Larlee J.A, J.T. Robertson J.A, J.C. Marc Richard J.A. Cites Ontario eDiscovery Guidelines and Sedona Canada Principles in draft form, with link to Sedona Conference website. Appeal from decision in June, 2007. Court points out that if there were to have been an appeal, it should have been against the original order of Savoie J. Dan Michaluk’s summary is here.

Hummingbird v. Mustafa, 2007 CanLII 39610 (ON S.C.) Date: 2007-09-19 Docket: 06-CV-304092PD1 Master Sproat "...the defendants seek a disk image of Mustafa’s hard drives which Hummingbird used to produce documents in their affidavit of documents and supplementary affidavit of documents and to advise of the anticipated cost of this request. Essentially, the defendants wish to have a mirror copy of the hard drive of the computer used by Mustafa while employed by Hummingbird". In his conclusions, relies on Reichman to include the hard disk in the definition of a document, and interprets the hard disk as permitting the inspection of the "original" of the production. Goes on further to state that provision of the mirror-image is the most cost-effective approach, in line with Rule 1.04 (just, most expeditious and least expensive determination of the proceedings). (Since the disk is indeed the one used by the defendant while at Hummingbird, there would be no concerns about protection of privacy. PD)

NEW  Spar Aerospace Limited v. Aerowerks Engineering Inc., 2007 ABQB 543 (CanLII) 2007-09-04 Docket: 0403 24218 J.B. Veit J. The court granted a request by the plaintiff for a declaration that the defendants have failed to provide an adequate affidavit of records within the time prescribed by court order and for a collateral declaration that ...the plaintiff was entitled ... to obtain the defendants’ imaged hard drives and all records seized during the execution of an Anton Piller order. No protection provided for personal information that may have been co-mingled with the business information on the imaged hard drives. The defendant's appeal from the order was dismissed.

NEW  Doucet v. Spielo Manufacturing Inc., 2007 NBQB 37 (CanLII) Date: 2008-01-29 Docket: M/C/1157/03 Lucie A. LaVigne J. In January 2008 the court found that there was no contempt, acknowledging that the defendants had made some effort in November and December 2007 to comply, and that the burden of discovering the electronic information was considerable. Dan Michaluk gives a summary in his report.

Doucet v. Spielo Manufacturing Inc., 2007 NBQB 245 (CanLII) Date: 2007-06-29 Docket: M/C/1157/03 Lucie A. LaVigne J. Cost shifting issues. Retrieval of information from backup tapes. Failure to comply with a production order. Third motion dealing with discovery. Plaintiffs seeking declaration that defendants have not complied with the order, are in contempt and have abused the process of the court. Re computer access, defendants contend they no longer have a computer system and that documents are only available on backup tapes, even though plaintiffs had advised them from the beginning that they would be looking for electronic information. There are 427 backup tapes.

Agustawestland International Ltd. v. Canada (Minister of Public Works and Government Services). (unreported) Federal Court. Date: 2007-6-19 Docket: T-1605-04. Madam Prothonotary Mireille Tabib. "The Defendants' obligation to produce a list of documents is confined to listing relevant documents in their Affidavits of Documents. They are neither required to list the entire contents of, nor produce a listing of, their entire electronic filing cabinet. I am not satisfied that the index to the electronic filing cabinet is, of itself, a document which is relevant to the determination of the issues raised in the pleadings. Its relevance, as a document, is confined to assisting in resolving discovery issues. Production of documents is required only in respect of documents that are relevant to the substantive issues in the pleadings."

Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770 (CanLII) Date: 2007-05-31 Docket: L051505. Shabbits J. Requiring an affidavit to verify that production is complete. "In Foundation Co. of Canada Ltd. v. Burnaby (District), [1978] B.C.J. No. 557 (B.C.S.C.), Legg J. discussed the purpose of the rule that a party may be required to verify by affidavit that the documents which it has listed are all the documents that are or have been in their possession. He explains, at para. 7, that the purpose of Rule 26(3) is to enable a party to require that every reasonable effort has been made by its opponents to reveal the existence of all relevant documents that are or have been in their possession. Legg J. states that when some documents that are significant to the defence or claim of a party have for whatever reason been omitted, that in the absence of any adequate explanation or reason for such omission, an order directing the delinquent party to deliver an affidavit verifying the list of discovered documents ought to be made." (para 55)  "In my opinion, the defendants have adopted a narrow view as to what their lists of documents ought to include. I conclude that the defendants should be put on their oaths so that their consciences are appropriately engaged in the decision as to what documents are material to the proceedings, and whether they have yet been produced." (para 59)

Stergiou v. Stergiou, 2007 CanLII 17642 (ON S.C.) 2007-5-18 Backhouse J. The wife sought temporary orders for the production of the hard drive to her husband's personal computer for imaging. "The evidence and documentation that has been produced support that the husband has not been candid about his home computer. The wife’s proposal that a lawyer be retained to act as an independent counsel to parse any matters of solicitor and client privilege is a reasonable one. The hard drive of the husband’s home computer shall be produced for imaging and delivered to Stacie Glazman to parse any matters of solicitor and client privilege. The remaining contents shall then be delivered to the wife’s solicitor." (para 41)

Stanfield v. The Queen, 2007 TCC 480 (CanLII) Date: 2007-05-10 Docket: 2004-1415(IT)G. The Honourable Gerald J. Rip, Associate Chief Justice. Respondents motion to compel (Appendix 2) includes copies of all documents printed on that computer and all data on the hard drive as it respects the joint venture (Q115) and the hard drive and copies of any documents .... printed out on that computer respecting the joint venture trades (Q117). In Q118, the respondent states: "The witness' evidence is that he didn't have any information on that computer relating to these trades. The Respondent claims that this is contradictory to what he reported therefore it is relevant to the issue and the Crown is seeking to explore this at discovery."

Roeske v. Grady, 2006 BCSC 1975 (CanLII) Date: 2006-01-06 Docket: M022824. H.A. Slade J. Defendant applied for an order that the plaintiff provide to the solicitors for the defendants her PowerBook computer, including but not limited to the computer’s hard drive and any removable floppy CD or other DVD disks containing data originating on her PowerBook computer, twenty days before the scheduled start of the trial in an action that had commenced in 2004. Examinations for discovery had already been completed and expert reports exchanged. Defendant was willing to pay for the imaging of the hard disk. The court rejected the idea advanced by the defendant that the hard disk is a document that should have been produced, stating: "As it is the information and not the medium for its storage that may be relevant, I see no basis for the delivery of the hard drive as a document and no basis from departure from the general rule that plaintiff’s counsel have the first opportunity to vet any information derived from it for relevance." (para 27) "In the circumstances, taking account of the marginal value for trial purposes and the onerous burden it would put on the plaintiff late in the day, I conclude that I should exercise my discretion in this matter in favour of the plaintiff." (para 32)

Doucet v. Spielo Manufacturing Inc., 2006 NBQB 249 (CanLII) Date: 2006-07-14 Docket: MC115703. R. Savoie J. Employment case involving wrongful dismissal, unlawful termination, unjust enrichment and breach of fiduciary duty. The court order that the Defendants provide access to the computer system of the Defendant Spielo Manufacturing Incorporated (“Spielo”), including the archives of such system, by the Plaintiffs or their agent. Detailed order attached to decision does not appear to protect privacy or confidentiality.

Desgagne v. Yuen et al, 2006 BCSC 955 (CanLII) Date: 2006-06-21 Docket: M040544. Myers J. In a motion the Defendants seek production of the the hard drive from the plaintiff's home computer for analysis by an expert, as well as the plaintiff's Palm Pilot and video game unit. "It is true that documents contained in electronic form present new challenges. That does not mean, however, that the Court should lose sight of the underlying principles regarding document production. For the purposes of this part of the motion (as opposed to the request for the metadata, which I discuss below) the documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party’s filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed." (para 20) Value of the production outweighed by competing interests, which included not only the time and expense of production but also confidentiality. (para 38 and following analysis for each type of evidence sought).

Rhodia UK Ltd. v. Jarvis Imports (2000) Ltd., 2005 FC 1628 (CanLII) Date: 2005-11-30 Docket: T-1832-04 Danièle Tremblay-Lamer J. "It is well established that the party seeking further production must offer persuasive evidence that documents are available, but have not been produced, and the burden of showing that another party's productions are inadequate lies with the party making the allegation: Montana Band v. Canada, [2001] F.C.J. No. 991 (T.D.) at para. 5; Havana House Cigar & Tobacco Merchants Ltd. v. Naeini 1998 CanLII 7605 (F.C.), (1998), 80 C.P.R. (3d) 132 at para. 19, aff'd 1998 CanLII 7619 (F.C.), (1998), 80 C.P.R. (3d) 563 (F.C.T.D.); Apotex Inc. v. Merck & Co., 2004 FC 1038 (CanLII), (2004) 33 C.P.R. (4th) 387 (F.C.) at para.13 -14." (para 5)

Del Zotto v. Canada (Minister of National Revenue), 2005 FC 653 (CanLII) 2005-05-09 Docket: T-2207-01 W. Andrew MacKay D.J.F.C. "[28] It is well settled that in the absence of evidence that personal information exists in the possession of a government institution, mere speculation that it should exist provides no basis for the Court to order production (see Sheldon Blank & Gateway Industries Ltd. v. the Minister of the Environment, 2001 FCA 374 (CanLII), 2001 FCA 374, Sheldon Blank v. Minister of Justice, 2004 FCA 287 (CanLII), 2004 FCA 287, per Létourneau J.A. at para. 76; and Clancy v. Canada (Minister of Health), [2002] F.C.J. No. 1825, per Blanchard J.). Where the evidence before the Court indicates that information requested does not exist there is no basis for deeming a refusal to produce requested information."

Park v. Mullin, 2005 BCSC 1813 (CanLII) Date: 2005-12-30 Docket: 04/0348. J.L. Dorgan, J. The court held that it : “…. has used its discretion to deny an application for the production of documents in the following circumstances: (1) where thousands of documents of only possible relevance are in question: Peter Kiewit Sons Co. v. B.C. Hydro; B.C. Milk Marketing Board v. Aquilini; and (2) where the documents sought do not have significant probative value and the value of production is outweighed by competing interests, such as confidentiality, and time and expense required for the party to produce the documents: Goldman, Sachs & Co. v. Sessions.”

Dominey v. Cosmetology Assn. Of N.S., 2004 NSSC 116 (CanLII) Parallel citations: (2004), 224 N.S.R. (2d) 288 Date: 2004-06-10 Docket: SH 210641. Leblanc J. "While the general approach to disclosure is clearly a wide and liberal one, there must be some limits upon what must be disclosed. In Gould Estate v. Edmonds Landscape and Construction Services Ltd. (1997), 166 N.S.R. (2d) 334 (S.C.), J.M. MacDonald J. (as he then was) acknowledged the liberal rules of disclosure in Nova Scotia but went on to say, “disclosure cannot be deemed unlimited. The defendant must establish some practical relevance to the materials being sought” (para. 7). In considering relevance, he applied a cost-benefit analysis as described by Sopinka J. In R. v. Mohan, 1994 CanLII 80 (S.C.C.), [1994] 2 S.C.R. 9, concluding that such an analysis applied in the context of disclosure just as it did in the context of admissibility at trial (para. 8)." (para 9)

Walter Construction v. Catalyst, 2003 BCSC 1582 (CanLII) Date: 2003-10-17 Docket: S01585. Gray J. In a suit for breach of contract, plaintiff seeks an order for further production, including the electronic versions of documents already produced in paper. No support for the position that further production would be onerous. The court found that the the documents sought would be relevant and ordered the production. See Annex A for excerpts from the Notice of Motion. N.B. no apparent provision for privilege, although court does mention that there may be sensitive of privileged information in the electronic documents in para 38, inviting the parties to apply for a further order if they cannot agree on what will be produced.

Effect of failure to disclose or produce for inspection

Failure to Disclose or Produce Document

Rule 30.08 (1) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194 provides for the situation "where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection".

Failure to Serve Affidavit or Produce Document

Rule 30.08 (2) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194 provides for the situation "where a party fails to serve an affidavit of documents or produce a document for inspection."

Failure to comply with an Interlocutory Order

Rule 60.12 of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194 states:

Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.

NEW   C.B. Constantini Ltd. v. Slozka, 2007 BCSC 615 (CanLII) Date: 2007-03-22 Docket: S062914
A.W. MacKenzie J. A hearing about four counter-claims that follow the ongoing refusal by the defendant to produce documents in contempt of orders by the court. Orders have included forensic examination of defendant’s hard drives. The October 2006 motion for directions is in C.B. Constantini Ltd. v. Slozka, 2006 BCCA 473 (CanLII). The May 2006 application for injunctive relief is in C.B. Constantini Ltd. v. Slozka et al, 2006 BCSC 1210 (CanLII).

 

Preservation of evidence

Nac Air, LP v. Wasaya Airways Limited, 2007 CanLII 51168 (ON S.C.) 2007-11-23 Docket: CV-07-0464 H.M. Pierce J. Plaintiff alleges defendants accessed its confidential website to obtain information about rates, having formed that opinion after several months of monitoring access to its website and patterns of rate changes. (para 6) Plaintiff was granted an Anton Piller order to seize computer files and other documents, but during execution seized images of a computer that was not included in the order. Defendants moved to have the AP order set aside, arguing that the plaintiffs did not prove that there was a real possibility the defendants would destroy the information. Court focused on whether there was a possibility of intentional (italics in the decision) destruction, choosing not to accept plaintiffs' argument that the destruction of "evidence of browser sessions including IP addresses" would happen during everyday use of the computer, whether intentional or otherwise. Court also questioned urgency, since plaintiff waited from March to November before seeking the order, although plaintiff had explained that it was monitoring access to the website to confirm its suspicions. Court "concluded that the plaintiffs have not demonstrated on a balance of probabilities that there is a real possibility that the defendants may destroy such material before discovery." The Court ordered the return of the material seized and substituted a non-specific order to "preserve documents relevant to issues in the litigation". (para 36)

Doust v. Schatz, 2002 SKCA 129 (CanLII) Parallel citations: (2002), 32 R.F.L. (5th) 317; (2002), 227 Sask. R. 1 Date: 2002-11-26 Docket: CA02129;462. Tallis J.A. "A party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action. The process of discovery of documents in a civil action is central to the conduct of a fair trial and the destruction of relevant documents undermines the prospect of a fair trial." (para 27)

HSBC Bank Canada v. Creative Building Maintenance Inc., 2006 CanLII 18361 (ON S.C.) Date: 2006-05-26 Docket: 06-CL-0006425. Cumming J. "THIS COURT ORDERS that unless otherwise ordered by this Court or authorized or agreed to by the Receiver, the Individuals shall not: (a) part with the possession or control of any and all of the Records or monies appropriated from HSBC, RoyNat, and KeyBank; (b) hide, destroy, or deface the Records; (c) directly or indirectly remove anything with a market value in excess of $25,000 from the property known municipally as 2205 Dunwin Drive, Mississauga Ontario L5L 1X1 (the "Headquarters") or such parts of the Headquarters as are in the Individuals' control. (d) erase or delete from any means of electronic storage or transmit any of the Records from the Headquarters or alter, deface, discard, conceal or destroy in any manner any of the Records or any-other thing in their possession; or (e) activate or operate either locally or remotely from any location away from the Headquarters or access or alter any Records stored in any location remote from the Headquarters that may constitute the Records." (para 10)

See also Nicolardi v. Daley, 2002 WL 35652 (Ont. Master)

Spoliation

NEW Jay v DHL, 2008 PESCTD 13 (CanLII) Date: 2008-02-13 Docket: S1 GS-18505. Kenneth R. MacDonald J.  In a case involving loss of opportunity costs (among other claims), the plaintiff has sought disclosure of evidence of revenue by other contractors working for the defendant in the form of copies of waybills and associated invoices showing the weight and dimensions of the packages delivered. The plaintiff has been requesting this information since 2003 and successfully moved for an order for its production in January 2006. Having not received it by late October 2006 the plaintiff moved to strike out the statement of defence. The court delayed judgment to give the defendants more time to produce the documents. The plaintiff again moved to strike the defendants’ pleadings in May 2007 and that motion was heard in November 2007. At that hearing the Senior VP of the defendant reviewed the processing of waybills and invoices in Canada. Since 2000 paper copies of waybills had been scanned and destroyed after 9 months. The policy continued even after the plaintiff had specifically requested the information in 2003. Paper waybills represent about 30% with the remaining transactions being processed electronically. All computer facilities are centralized in the U.S. In October 2005 the computer system crashed, losing critical information. Evidently backup processes had not been strictly followed, and although the images could be recovered, the indexes by which the transactions/waybills would be searched were irretrievable. Using alternate approaches the defendant has been able to produce some of the information, but not the dimensions and weight requested. The court dismissed the statement of defence and recommends that the plaintiff proceed with a motion for default judgment.

Vescio v. Garfield, 2007 CanLII 24676 (ON S.C.) 2007-07-03 Docket: 03-CV-245266CM2 Moore J. Case involving missing hospital records in the case of a child who subsequently became very ill and disabled. Plaintiff alleges spoliation. "224] The plaintiffs also assert that non-preservation of documents in contravention of a duty to preserve the documents, whether the result of intentional or negligent acts or omissions, raises the doctrine of spoliation and an adverse inference against the defendants." "[237] Again I note that the absence of records has not hampered the plaintiffs’ experts in reaching their conclusions. The available records are sufficient in number, nature and content, when read in concert with the evidence of the very people who saw Isaac that day, to establish that Isaac was healthy, not jaundiced and was feeding well at the time of his discharge on Sunday."

Inform Cycle Ltd. v. Rebound Inc., 2007 ABQB 319 (CanLII) 2007-05-16 Docket: 0501 02030 D.L. Shelley J. The Plaintiffs "suggest that the Rebound Defendants have disposed of electronic evidence or failed to preserve it but do not indicate what this evidence might be...they fail to indicate what these documents might be and confirm that through the course of cross-examination there were documents which were identified which were subsequently produced by way of undertaking. They do not indicate what additional documents the Rebound Defendants have failed to produce." (para 20) The Court dismissed the claims.

Arrow-West Equipment Ltd. v. GDT Trading Ltd., 2006 ABQB 762 (CanLII) Date: 2006-10-17 Docket: 0503 07699. L. Darlene Acton J. An application to find the Defendants in contempt of court for swearing a false affidavit, destruction or manipulation of evidence of a laptop, and failure to attend Examinations for Discovery. The court was not satisfied beyond a reasonable doubt that the Plaintiff has proven that the Defendants manipulated the evidence or destroyed or permanently deleted any of the Plaintiff’s data... While the Plaintiff has not proven that there was manipulation of evidence which would amount to contempt of Court by the Defendants, the activity which took place on the computer does raise suspicions. (paras 41 and 42). Defendants declared to be in civil contempt for failing to comply with the orders of Lefsrud J. and were fined $5,000 each.

NEW  Burrill v. Ford Motor Company of Canada Ltd., 2006 CanLII 34271 (ON S.C.) Date: 2006-10-11 Docket: 26726. Heeney J. Liability in a motor vehicle accident. Question of improper assembly of the front left wheel. Although truck and its component parts were made available to all experts on both sides for inspection, the component parts were later lost or destroyed while in the custody of the plaintiff's insurer and could not be produced for exhibit during the trial. Defendant's counsel concedes there is no great prejudice to the defendant because experts had had the opportunity to view the parts. Although the parts were considered relevant and were destroyed while litigation was pending, the Court concluded the the allegation of spoliation was not proven because there was no evidence to support that the parts had been destroyed for fraudulent purposes or to suppress the truth. (paras 123-127). Relies on Dyk v. Protec Automotive Repairs, 1997 CanLII 2114 (BC S.C.) for an analysis of American and Canadian case law.

Western Tank & Lining Ltd. v. Skrobutan et al, 2006 MBQB 205 (CanLII) Date: 2006-09-14 Scurfield J. Evidence that the defendants attempted to destroy evidence of their pre-resignation activities by erasing information from their computers attracted an adverse inference that they were probably involved in the direct solicitation of the plaintiff's customers before leaving the employment of the plaintiff. The court also took the spoliation into account to impose more rigorous injunction prohibitions than it would have normally. (paras 20-23)

Sussex Insurance Agency.Com Inc. et al v. ICBC, 2006 BCSC 1269 (CanLII) Date: 2006-08-18 Docket: S013226. N. Garson J. After the court dismissed the plaintiff's claim, it applied for an order that the trial be reopened, based on an allegation that the defendant, ICBC, concealed and destroyed documents that were relevant to the plaintiff’s case. The court concluded that the plaintiff has not proven there was a conspiracy or intentional wrong doing on the part of ICBC employees, inside counsel, or outside counsel, charged with managing and conducting the defence of this action, and that none of these documents either individually or when considered collectively would probably affect the conclusions. (para 99 - 103)

Spencer v. Quadco Equipment Inc. and others, 2005 NBQB 2 (CanLII) Date: 2005-01-05 Docket: S/C/755/00. William T. Grant J. A nice discussion of the law starting at paragraph 17, in which the court says "The law concerning spoliation in Canada begins with the decision by the Supreme Court of Canada in St. Louis v. R. (1895) S.C.R. 649 which stands for the proposition that where one party destroys evidence there is a rebuttable presumption that the evidence destroyed would have been adverse to that party’s interest." In the following paragraphs there is a discussion of the case law in various jurisdictions, including the U.S. cases Silvestri v. General Motors Corp., 2001 U.S.App. Div. LEXIS 24413 (4th Cir. 2001) and Northern Assurance Co. v. Ware, 145. FRD 281, 283 (D. Me. 1993).

Dreco Energy Services Ltd. v. Wenzel, 2006 ABQB 356 (CanLII) Date: 2006-05-12 Docket: 0203 12910. S.J. Greckol J. A large corporate commercial and intellectual property suit. After a fine was imposed by the judge because answers to undertakings were not delivered to counsel for the Plaintiff, the Defendant appealed the fine. The Court of Appeal (Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 (CanLII) considered new evidence that certain computer records were destroyed or erased. The CA remitted the order back to the court, saying "In terms of the sanction for contempt, we are of the view that the amount ordered is not adequate for its purpose. Requiring those in contempt to pay a part only of thrown‑away costs related directly to the contempt does not bring home to the contemnors the seriousness of their actions and their responsibilities for the consequences attributable to that contempt. There is a public policy aspect to this entire issue. Generally, in principle, those who are found in civil contempt ought, at a minimum, to be required to accept responsibility for a substantial portion of the costs directly related to that contempt. It may be that a judge would also consider it appropriate to impose further monetary penalties or other sanctions, whether including striking of pleadings, drawing of adverse inferences, etc." (para 9) The CA went on to suggest seven considerations for assessing which sanctions should be imposed, which the judge used in her analysis. (para 10). The Court ordered the Defendant to pay the Plaintiff's "throw-away" costs, amounting to $136,146.27, plus GST, and to take all available steps to try to retrieve the information that has been lost and are to bear the costs of those efforts in any event of the cause. If the computer files cannot be retrieved, pursuant to Rule 704(1)(c), the Defendants are to pay a fine of $75,000.00, for which they will be jointly and severally liable. (paras 53,54)

Brandon Heating & Plumbing (1972) Ltd. et al v Max Systems Inc., 2006 MBQB 90 (CanLII) Date: 2006-04-10 Docket: CI 99.02.00265. Mykle J. "The plaintiff knew from the pleadings that the computer hardware and network operating system were relevant to this action. In fact, the plaintiff was specifically asked, and undertook, to preserve the hardware in the state that it was at the time of the discovery, for the purpose of inspection." (para 26) "The destruction of the hardware required a willful act on the part of the plaintiff, and was a clear breach of the undertaking not to do this until advised as to whether it would be inspected. At the very least, it shows a careless disregard for the undertakings given." (para 27)

North American Road Ltd. v. Hitachi Construction Machinery Company, Ltd., 2005 ABQB 847 (CanLII) Date: 2005-11-14 Docket: 0003 08116. C.P.Clarke J.C.Q.B.A. "The Applicant submits that the Respondents had a duty to preserve this evidence in the face of the pending or anticipated litigation. The Applicant also argues that as remedy for the spoliation that occurred, it should be given access to the material information gleaned from the Respondents’ expert reports, so as to level the evidentiary playing field. (para 18) The Applicant suggests that the Court has a broad power to sanction for spoliation arising from the inherent power of the Court and from the sections 12 and 14 of Queen ‘s Bench Civil Practice Note No. 1. (para 19)

Netbored Inc. v. Avery Holdings Inc., 2005 FC 1405 (CanLII) 2005-10-14 Docket: T-2289-03. Hughes, J. This is an application for a review of the execution of an Anton Piller Order granted by this Court on December 15, 2003, to convert an interim injunction granted ex parte that same date into an interlocutory injunction and, for a show cause order in respect of allegations of contempt of the Anton Piller Order against one of the Defendants. S.E. had knowledge of the Order which included in its terms, particularly paragraphs 7 and 9(a) a requirement to identify and turn over material containing the Plaintiff's copyrights.    While the judge held that this Order is vague and ambiguous, a reasonable person would properly be expected to know that the hard drive of his computer is a most probable place where copyright material of whatever description relevant to the issues here is likely to be found. A prudent, honest, person would have quickly advised his lawyers of its existence, taken steps to preserve its contents, and turn it over for inspection when appropriate. (Italics P.D.) This is even more evident when one considers that his sister's computer was quickly identified and preserved for just such a purpose.

Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 (CanLII) 2005-06-06 Docket: 0403-0234-AC. Fraser, C.J.A. The Court of Appeal lays out seven factors for consideration when assessing possible sanctions: "1) the role of counsel, including the extent to which the actions of the respondents’ counsel might have contributed to the respondents’ contempt; (2) the motivation for the destruction/erasure of the computer records while the undertakings to produce them remained extant; (3) the consequences flowing from the destruction of those records and what redress should flow from that, including consideration of whether any adverse inferences should be drawn as a result thereof; (4) the entire context and history of the litigation; (5) the amount of reasonable thrown-away costs properly incurred; (6) the nature of the contempt; and (7) the degree of culpability of the contemnors."

iTrade Finance Inc. v. Webworx Inc., 2005 CanLII 9196 (ON S.C.) Date: 2005-03-24 Docket: 03-CV-246248CM4. A. Karakatsanis J. The plaintiff moved for a finding of contempt of court by the defendant based on non-disclosure of a laptop and the use of Evidence Eliminator to destroy data on the laptop when it was eventually produced. The court found findings for contempt.

Logan v. Harper, 2003 CanLII 15592 (ON S.C.) Date: 2003-10-17 Docket: 94-CQ-056153. Master MacLeod. "There is debate about whether or not an emerging tort of spoliation exists. Spoliation may not be a tort. It is an evidentiary doctrine. This means that if appropriate a negative inference may be drawn against a party that destroyed relevant evidence. Document destruction must be disclosed." (para 42).

NEW  Cheung v. Toyota Canada Inc., 2003 CanLII 9439 (ON S.C.) Date: 2003-02-10 Docket: 98-CV-149812. Hoy J.  Spoliation claim based on failure to preserve the van and destructive testing of the rear axle of the van prior to Toyota having notice of the accident or the claim. Accident occurred in 1996. Ewaschuk J issued a preservation order in September 2001, requiring “all photographs, data, findings and opinions arising out of the investigation, examination or testing of the van, except for documents for which privilege was claimed.” Also required for production were the component parts in possession of the Estate’s expert. Photographs taken 6 weeks earlier than those of the Estate show contradictory evidence about the state of the component. When asked to produce the tires, the Estate’s expert could not, and was also unable to provide an explanation. The Court ordered that “the Estate is precluded from adducing or relying on any reports or other evidence to the extent that it relates to or is in any manner based upon the missing tires.”

Spasic (Estate) v. Imperial Tobacco Ltd., 2000 CanLII 17170 (ON C.A.) Parallel citations: (2000), 49 O.R. (3d) 699; (2000), 188 D.L.R. (4th) 577; (2000), 135 O.A.C. 126 2000-07-21 Docket: C31079. On appeal from the order of Cameron J. dated November 25, 1998. Borins J.A
The motions judge then referred to the decision of the Divisional Court in Rintoul v. St. Joseph’s Health Centre  (1998), 42 O.R. (3d) 379 in which a majority of the court, relying on Endean v. Canadian Red Cross Society 1998 CanLII 6489 (BC C.A.), (1998), 157 D.L.R. (4th) 465 (B.C.C.A.), ruled that a separate cause of action for spoliation by a party to the lawsuit did not exist in Ontario. He concluded at p. 396 that as he was “bound by the majority decision in Rintoul as a matter of stare decisis”, paragraphs 8 to 15 of the statement of claim were to be struck out on the ground that they did not disclose a reasonable cause of action. We were informed by counsel that although the Supreme Court of Canada granted leave to appeal in Endean, the appeal had been abandoned....The tort of spoliation is essentially novel in Canada. Canadian authorities have traditionally viewed the destruction of evidence as a matter of evidence giving rise to procedural remedies, including rule 30.08(2) of our (Ontario) rules, where warranted. (Italics P.D.) This view that procedural remedies are sufficient should not preclude consideration of a substantive remedy for the wilful destruction of evidence.

Report on Spoliation of Evidence, BCLI Report No. 34 November 2004, published by the British Columbia Law Institute. BCLI is the effective successor to the Law Reform Commission of British Columbia, which ceased operations in 1997. "When evidence is destroyed, mutilated, altered, or concealed both litigants and the civil justice system suffer. Spoliation of evidence can cause courts to render decisions on imperfect evidentiary records, frustrate litigants in the prosecution of their actions, and, in extreme cases, deny people the opportunity to obtain a legal remedy even though they have suffered harm. This Report examines those evidentiary and procedural rules and discusses proposals for the further development of the law."

Werner v. Warner Auto-Marine Inc., (1996) 3 C.P.C. (4th) 110 (Ont. C.A.). The trial judge dismissed the plaintiff’s action and awarded costs against the plaintiff and the plaintiff’s lawyers on a solicitor and client basis, holding that the destruction of physical evidence after a protective order had been issued had “severely prejudiced” the defendants. The Court of Appeal reversed the trial judge’s dismissal of the action, holding that this was excessive, particularly given that the improper actions were directed by the plaintiffs’ insurers and lawyers and not the plaintiffs themselves. However, the cost sanction was allowed to stand, and the plaintiff was not allowed to rely on destructive tests done in breach of the preservation order.

Proportion and Marginal Utility

Rule 1.04 (1) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194, says, "These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1)."

Rule 216.1 of the Alberta Rules of Court says:

216.1(1) The Court may modify or waive any right or power under this Part, on terms or otherwise, or may impose terms on any party, where

(a) any party acts or threatens to act in a manner that is vexatious, evasive, abusive, oppressive, improper or prolix, or

(b) the expense, delay, danger or difficulty in complying fully would be grossly disproportionate to the likely benefit.

Rule 1(5) of the British Columbia Supreme Court Rules says:

(5) The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

Rule 68 (Expedited Litigation Project) of the British Columbia Supreme Court Rules. In September 2005, Rule 68, Expedited Litigation Project Rule, was introduced to facilitate the efficient conduct of Supreme Court cases where the dollar-value of the claim is $100,000 or less, exclusive of interest and costs. It was introduced as a two year pilot project in the Vancouver, Victoria, Prince George and Nelson registries. Rule 68 limits pre-trial procedures and evidence that can be called at trial. It also requires each of the parties to disclose information to the other party early in the litigation process.

NEW  Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 (CanLII) Date: 2008-06-11
Docket: 0701-0179-AC. Reasons for judgment reserved by Carole Conrad J.A.  Appeal from an order by the case management judge to produce the imaged hard drives in specie and of drives containing the "hybrid" files (those patients whose care was partially funded by the CHR). The Court prefaced its analysis with a number of comments about the current state of electronic discovery: "The widespread use of computers for record keeping, communication and information storage has vastly expanded the breadth of potential discovery in litigation. Although technology is helpful in the sense that it makes fuller disclosure possible, it also creates an unfortunate paradox. The cost of sorting and producing all the relevant information in a party’s possession may put litigation beyond the economic ability of a vast number of litigants. Thus, it is necessary to ask such questions as: How much discovery is enough? Do all cases justify the same type of disclosure? Should there be some rule of proportionality that governs production based upon the issues in the lawsuit? How is irrelevant and immaterial information protected from production in those situations where a court orders production of a hard drive for examination by an expert? Who pays the cost?" (para 23). The Court cited Section 6.1.4 of QB Civil Practice Note 14, which urges parties to consider "[T]he desirability of limiting search efforts for any category of Discoverable Records where these efforts are considered to be unduly burdensome, oppressive or expensive having regard to the importance or likely importance of this category of Discoverable Records to the proceeding." Finally, the Court refers to Sedona Canada Principle 2 on proportionality.

NEW  Kairos Community Development Ltd. v. Nova Scotia (Community Services), 2007 NSSC 330 (CanLII) Date: 2007-11-14 Docket: SH 265555. Suzanne M. Hood J. Dispute about service fees and rates. Plaintiff seeks production of “documentation related to the service fees and rates (including but not limited to administrative fees and mileage rates) that the Defendant has paid to other service providers who provide supervised apartments and group homes for persons with mental health and disabilities in Nova Scotia, for the period of 1998 to present.” Question of relevance and burden to produce. The plaintiff says that this documentation is necessary in order for it to establish its loss and says therefore that it is clearly relevant. (para 20) Based upon the information before me, I conclude that the documentation with a semblance of relevance does not include documentation outside the so- called Central Region. (para 25) “It is perfectly clear that these documents, although stored in a disorganized fashion, are within the control of the defendant. I conclude that it is not unduly burdensome in all the circumstances of this case for the defendant to produce the documentation which I have concluded to be relevant. The plaintiff has no other way to obtain documentation which is critical to its case and should not be left without the opportunity to proceed with its lawsuit because of the fashion in which the defendant keeps its records. Nor do I conclude that this is one of those exceptional cases where the party requesting the documentation should pay for its production. If the records were kept in a different fashion, it would not be difficult to produce them. It is not the fault of the plaintiff that this is not the case.” (para 44) “The defendant may be able to obtain it more easily from some of the service providers who may have kept their records, which would be smaller in number, in a more accessible fashion than those of the defendant. The possibility that this could occur does not affect the order which will flow from my decision, but it is an option that the defendant may wish to explore.” (para 49) paras 29-33 outline burden.

NEW  Vector Transportation Services Inc. v. Traffic Tech Inc., 2008 CanLII 11050 (ON S.C.) Date: 2008-03-17 Docket: 05-CV-300129 PD2 Perell J. The defendant in a case about a wrongful solicitation of clients by a former employee has appealed a Master's order to produce the laptop he uses for work purposes to a forensic data recovery expert who would inspect the computer for e-mails containing names of the plaintiff’s clients or customers. With $1 million at stake, the plaintiff requested the order because the defendant had not produced emails that the plaintiff could prove had been on his computer since he had been one of the recipients. Defendant claims these emails were not produced because they had been deleted. The defendant relies on Baldwin Janzen Insurance Services (2004) Ltd. v. Janzen and Desgagne v. Yuen to support the position that the Master had erred in his order. After reviewing Principle 2 of The Sedona Canada Principles (published January 2008), the Court decided that the plaintiff had produced evidence of the existence of relevant electronic information on the laptop and concluded that the Master had been correct to order its production for inspection. The Master’s order asks for a highly targeted search of the recovered contents of the laptop, which also distinguishes it from the requests for the entire contents of a drive in both Baldwin and Desgagne. Furthermore, the plaintiff has agreed to pay for the work of the forensic data recovery expert.

Contour Optik Inc. v. Viva Canada Inc., 2005 FC 724 (CanLII) 2005-05-19 Docket: T-1927-02 Richard Morneau Prothonotary. The Court quotes Reading & Bates Construction Co. et al. v. Baker Energy Resources Corp. et al. (1988), 24 C.P.R. (3d) 66, stating "Mr. Justice McNair, in a general six-point reminder, first defines, in points 1 to 3, the tests for relevance of a question or document, and then itemizes in points 4 to 6 a series of circumstances or exceptions in which, at it happens, at the end of the day, a question need not be answered or a document need not be produced." In particular, 4 says "The court should not compel answers to questions which, although they might be considered relevant, are not at all likely to advance in any way the questioning party's legal position"; 5 says "Before compelling an answer to any question on an examination for discovery, the court must weigh the probability of the usefulness of the answer to the party seeking the information, with the time, trouble, expense and difficulty involved in obtaining it. Where on the one hand both the probative value and the usefulness of the answer to the examining party would appear to be, at the most, minimal and where, on the other hand, obtaining the answer would involve great difficulty and a considerable expenditure of time and effort to the party being examined, the court should not compel an answer. One must look at what is reasonable and fair under the circumstances" (underscored by the Court); and 6 "The ambit of questions on discovery must be restricted to unadmitted allegations of fact in the pleadings, and fishing expeditions by way of a vague, far-reaching or an irrelevant line of questioning are to be discouraged". (underscored by the Court.)

Strata Plan LMS 3851 et al v. Homer Street et al, 2006 BCSC 1362 (CanLII) Date: 2006-09-08 Docket: S76792 J. Truscott J. “[17] Chief Justice McEachern in Boxer v. Reesor et al (1983), 43 BCLR 352, accepted that there must always be a reasonable limit to production of documents and a reconciliation between the right to full disclosure with the proper management of the trial process. Mr. Justice Myers in Desgagne v. Yuen, 2006 BCSC 955 (CanLII), 2006 BCSC 955, refers to it as a matter of common sense."

Farris v. Staubach Ontario Inc., 2006 CanLII 19456 (ON S.C.) Date: 2006-05-24 Docket: 03-CV-259605CM 3. Master Hawkins. "That is the cost side of a cost/benefit analysis of this motion. The benefits of the requested searches and documents relevance review seem to me to be minimal. No one can guarantee that the whole exercise will fail to turn up a single new relevant document. Having said that the plaintiff is, on the evidence before me, unable to identify a single relevant document which is apparently in the possession, control or power of TSC which it has yet to produce or which the proposed searches will reveal. The plaintiff does not submit that documents already produced point to the existence of a single relevant document which TSC has failed to produce." (para 23)

Baldwin Janzen Insurance Services (2004) Ltd. v. Janzen, 2006 BCSC 554 (CanLII) Date: 2006-04-06 Docket: S046775. M.A. Humphries J. This is an application to compel the defendant to produce a Supplemental List of Documents, listing his hard disk drives (“HDD”) and a mirror image copy of those hard disk drives as documents in its possession. The plaintiff wants the mirror-image HDD produced to its own computer expert for a computer forensic analysis. "Without some indication that the application of the interesting technology might result in relevant and previously undisclosed documents, the privacy interests of the third parties and the avoidance of unnecessary and onerous expense militate against allowing such a search merely because it can be done." (para 36)

Baldwin is cited by Master Hyslop in Value Analytix Ltd. v. Doman Industries Limited et al, 2006 BCSC 860 (CanLII) Date: 2006-06-02 Docket: 36603, in his refusal to order the production of hard drives.

Peter Kiewit Sons Co. of Canada Ltd. (c.o.b. Kiewit-Ceco) v. British Columbia Hydro & Power Authority, [1982] B.C.J. No. 1599, Vancouver Registry No. C794669. March 26, 1982. McEachern C.J. "One of the matters in issue between these parties is the extent to which the Plaintiffs may require production and inspection of documents relating to this and other contracts which were underway at the same time as the contract in question." (para 12). Plaintiff was seeking an order for production of more documents. The Court concluded "It does not follow that this motion should be dismissed because, notwithstanding the foregoing, every reasonable effort must be made to enable the Plaintiffs to locate any documents which may assist the parties to ascertain the truth. What is not permissible, or reasonable, in my view, is to require a party, in a case such as this, to incur enormous expense in what may be a futile search for something which may not exist." (para 24, italics added). "I would give consideration to any reasonable proposal the parties may make regarding the foregoing. If they cannot agree, then, in order to make an effective order, I would direct only that the Plaintiffs may apply again for an affidavit, and subsequent inspection, of documents which may be uncovered by a search of greatly reduced scope. To put it differently, the Plaintiffs must choose a smaller target within B.C. Hydro. As is well known, B.C. Hydro is the largest enterprise in the Province, and the Plaintiffs must define a more manageable area for enquiry. In addition, the Plaintiffs must establish a prima facie case that something relevant will be uncovered before a further affidavit and further inspection will be ordered." (para 27, italics added). "Upon any such further application I would expect a senior responsible officer of B.C. Hydro to verify on oath the extent of its production to date, the magnitude and estimated expense of the search required to satisfy the further production which is being sought, and such further circumstances as may be necessary to enable the Court to decide whether a further search will be fruitful. In addition, I would expect such deponent to verify, upon grounds which are stated, what his belief is regarding the likelihood of further relevant documents being uncovered. " (para 28, italics added).

Canada (Commissioner of Competition) v. Air Canada (T.D.), [2001] 1 F.C. 219, 2000 CanLII 17157 (F.C.) Parallel citations: (2000), 78 C.R.R. (2d) 134; (2000), 8 C.P.R. (4th) 372; (2000), 186 F.T.R. 49 Date: 2000-07-21. Reed J. The burden of producing e-mail was raised in this case dealing with anti-competitive behaviour by Air Canada. Air Canada argued that a section 11 Order under the Competition Act would require it to search four years' worth of the 6,000 - 12,000 e-mails received by each relevant employee annually and spend two to three weeks recreating the file for e-mail received more than six months prior to the order. Moreover, it argued that e-mail from only the most senior employees should be included in the search since junior employees would not be involved in policy. While the Federal Court found that the production request made by the Commissioner for Competition was not irrelevant to the inquiry, the court ultimately did not rule on the issue, since the parties agreed to negotiate with respect to the scope of the request.

Jaskhs Enterprises Inc. v. Indus Corp., 2004 CanLII 32262 (ON S.C.) 2004-10-01 Docket: 03-CT- 023643 CP;03-CV-257165 CM2. Cullity J. I am satisfied that the demands made on behalf of Osiris in Mr Campbell's letter of February 4, 2004, that it has continued to insist upon, were excessive and unreasonable both in the nature and extent of the information required and the timelines it purported to impose. Mr McLean's description of the demands as "over the top" was in my opinion justified. The ongoing obligations to which the franchisees would be subjected would extend significantly beyond "access" required to provide reasonable protection for the interests of Osiris Inc., in the event that it is successful in the litigation. Its demands are, in my opinion, more consistent with a desire to harass the defendants than to obtain compliance with the order.

Nova Scotia (Attorney General) v. Royal & Sun Alliance Insurance Co. of Canada, 2003 NSSC 227 (CanLII) Date: 2003-11-20 Docket: S.H.No.149142. Gerald R. P. Moir, J. Plaintiff applied for an order directing the Defendants to answer a number of interrogatories. The application for one of the interrogatories was supported while the application for the other two were dismissed. In its reasons, the Court said: "Subject to two qualifications, the information sought must be logically and legally relevant. The first qualification recognizes that relevancy is not adequately assessed outside trial. At this stage, one must find a semblance of relevancy. Secondly, in addition to information that is relevant, we allow questions on discovery or through interrogatories which are reasonably calculated to lead to admissible evidence. Finally, there is a discretion to limit discovery where it would be just to do so, such as were the burdens that would be placed upon the party making answer clearly outweigh the interests of the party questioning." (para 8, italics added.)

Document Retention Policies

Weber v. Erb and Erb Insurance Brokers Ltd., 2006 CanLII 9987 (ON S.C.) Date: 2006-03-31 Docket: 661/96 D.J. Gordon J. "[93] Ten years later, it is appropriate an adverse inference be drawn as to the failure to produce the documents results from the documents not supporting the plaintiff’s position. [94] Further, the normal retention period for business records has now expired. There is a strong probability the February 1996 records no longer exist. The plaintiff offers no evidence to the contrary. Failure to produce, or even provide an explanation, supports such an inference. I so find. [95] Accordingly, I conclude there is actual prejudice to the defendant. Without these documents, at the very least, there is a substantial risk a fair trial will not be possible. The action is dismissed."

Fareed v. Wood, 2005 CanLII 22134 (ON S.C.) Date: 2005-06-21 Docket: 444/01. D.J. Gordon J. In para 56, the Court writes, "In Sopinka, Lederman and Bryant, “The Law of Evidence”, 2nd. Ed. 1999 Butterworths, at p. 297, the learned authors discuss the inferences that may be drawn where a witness is not produced. The principle is stated as follows: In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation a party litigant does not testify, or fails to provide affidavit evidence on the application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist the party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it." (para 56) "Surely Mr. Wood has knowledge of what transpired. In the absence of evidence, the only inference that can be drawn is that he did know assets were being depleted, that such was improper and that he took no steps to prevent it occurring. In fact, he was an active participant by virtue of redeeming or selling investments when there was no obvious need to do so." (para 60)

But compare to: Stevens v. Toronto Police Services Board, 2003 CanLII 25453 (ON S.C.) Date: 2003-11-20 Docket: 01-CV-216238CM2. Juriansz J. "[38] In assessing the evidence I have not drawn any adverse inference from the fact that audio recordings of the police radio transmissions relating to these events were destroyed upon the expiry of their standard retention period. I accept the officers' testimony they were not broadcasting transmissions while chasing and apprehending the plaintiff and so I am satisfied the tapes would not have been helpful. Summaries of the radio transmissions were produced and the destruction of the tapes was innocent."

Moezzam Saeed Alvi v. YM Inc. (sales), 2003 CanLII 15159 (ON S.C.) Date: 2003-09-08 Docket: 01-CV-221218CM2. Cameron J. "..... a properly run company should have a documents retention policy requiring retention of files for a reasonable period extending beyond the limitation period for civil cause of action in contract or tort and the limitation period for a reassessment under the Income Tax Act. Failure to do so risks a court making an adverse inference on the absence of evidence." (para 48)

Ontario v. Johnson Controls Ltd., 2002 CanLII 14053 (ON S.C.) Date: 2002-12-04 Docket: 00-CV-189963. Cameron J. "Johnson bears substantial responsibility for any loss of its documents. There is no evidence of any document retention or destruction policy. A policy with a short retention period might offer some justification to dispose of "smoking guns" and other prejudicial evidence. Any such policy that permits destruction within much less than ten years after an event probably fails to take reasonable account of the standard six year limitation period under the Limitations Act for actions in tort or contract, plus some period to allow for a discoverability period, which allows for discovery of the damage and those responsible prior to the commencement of the limitation period. A short retention period would also ignore the extended period under s. 8 of the Act." (para 50) "The absence of a document retention policy also constitutes a failure to recognize the court's ability to draw an adverse inference in certain circumstances for failure to produce a document and a failure to address the practical need to retain documents once notice of a proceeding has been received. " (para 51)

36332 B.C. Ltd. v. Imperial Oil Ltd., 2002 BCSC 587 (CanLII) Parallel citations: (2002), 6 B.C.L.R. (4th) 168 Date: 2002-04-23 Docket: C963124. Ross J. "The nature of the problem is such that claims are likely to be raised years after the commercial activity. ... that circumstance, combined with the nature of such cases, suggests to me that commercial prudence would dictate the adoption of document retention policies that preserve the means of investigation of claims." (para 47).

Malcolm v. Transtech Holdings Limited et al., 2000 BCSC 943 (CanLII) Date: 2000-06-19 Docket: C940534. Boyd J. "McKenna testified that all of these documents did exist until shortly before his own examination for discovery conducted in March 1999. The records of the 30 companies involved in the Group were stored in a dead storage warehouse in Surrey, B.C. McKenna remarked at trial, that had plaintiff’s counsel asked, the necessary documents could have been preserved and produced. However he insisted that no such demand or request was made and accordingly, having complied with the retention periods set out in the Limitations Act, the Income Tax Act and the Companies Act, he said the documents were destroyed in late 1998 or early 1999. As of that date, this action had been outstanding for some four years." (para 38) "I am satisfied that any sophisticated businessman (and that includes McKenna and his co-defendants) would be well aware that any documents bearing on the issues involved in this action ought to have been produced some years earlier. I infer that no documents were ever produced to verify the “tacit agreement” because no such documents exist." (para 39)

Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. (Ontario Statute).

Acceptable Use Policies

Inform Cycle Ltd. v. Rebound Inc., 2007 ABQB 319 (CanLII) Date: 2007-05-16 Docket: 0501 02030. D. L. Shelley J.C.Q.B.A. In seeking return of $1,500 he believed the Plaintiff, his former employer, still owed him, an employee of the Defendant used the Defendant's internet connection and computers to register "inform cycle" as a domain name and then redirected it to a pornographic site. Question of whether Defendant is liable for employees actions. Notes in passing that Defendant does not have a written internet policy.
 

Form of production

NEW  Shekdar v. K&M Engineering & Consulting Corp., 2007 CanLII 57814 (ON S.C.) Date: 2007-11-20 Docket: 03-CV-246488CM3 Master Sproat.  The parties disagreed about how the electronic information was to be produced. Plaintiffs objected to defendant’s proposal that the electronic data be made available via the internet because it would inhibit the unfettered ability to test and analyze the electronic data without the defendants having the ability to monitor such steps. The plaintiff preferred that the electronic data be produced via a memory stick. The Court agreed “that the plaintiff is entitled to conduct its testing and analysis as it sees fit and without any monitoring by the defendants. In my view, such monitoring would destroy the plaintiff’s entitlement to protect his litigation strategy.” (Not clear whether the defendant had proposed to host a website containing the electronic data. Presumably the use of the internet to transfer the data would not pose the same risks. PD)

Tarapaski v. Tarapaski, 2007 ABQB 286 (CanLII) 2007-5-2 Justice J.B. Veit. Subsequent to the court-ordered seizure of third party electronic records by the Monitor, this decision deals with objection that the documents had not been listed in the affidavit of documents. A large volume of information was produced. Discussion of limiting production only to documents that are both relevant and material. Court notes in para 3 that "At this time, Alberta does not have rules on electronic discovery of documents." 

Thomson v. Berkshire Investment Group Inc. et al., 2007 BCSC 50 (CanLII) Date: 2007-01-10 Docket: S053413. R.B.T. Goepel, J. Lists of documents when large volumes of information are involved. Claiming privilege on groups of documents. Cites Blank on the distinction between litigation privilege and solicitor-client privilege. Cites Lowry J. (as he then was) in G.W.L. Properties Ltd. v. W.R. Grace and Co. (1992), 14 C.P.C. (3d) 74 (B.C.S.C.) at ¶ 23: "It is not always possible, nor desirable, that documents be listed individually by date as the plaintiff wishes in this instance. Sometimes, when large volumes of documents are produced, a more worthwhile description can be achieved by grouping documents, or files of documents, that relate to a particular subject, or time period, or geographical location of origin or some other relevant common ground. Groupings of documents may, in some circumstances, be quite large. What is important is that the list provide the party seeking discovery with a meaningful, reliable and complete disclosure as well as an effective aide to retrieving the documents when an inspection is conducted. What is required in each case depends on the nature of the documentation that must be described. In my view, the ingenuity of counsel in the approach taken to drawing a list of documents that serves the purpose of the rule is an essential element of the discovery process, at least in the conduct of complex commercial litigation that involves large volumes of documents generated from a variety of different sources over a period of many years as in this case." (para 69) (Italics P.D.)

Andersen v. St. Jude Medical Inc., 2006 CanLII 31906 (ON S.C.) Date: 2006-09-15 Docket: 00-CV-195906CP. Master MacLeod. "The plaintiff seeks access to the SAS database in its native format. This is the database maintained by the University of Pittsburgh utilizing popular software used in clinical studies. ... It has not been demonstrated if and whether the porting to Excel is accurate or complete. The plaintiff’s expert has access to the SAS software and wishes to have the data in native format in order to perform his own analysis. Unlike many data bases which mix relevant and irrelevant information there is nothing in the AVERT data base that is not relevant. ... I accept the request of the plaintiff as a reasonable one. A database is a document under our rules and therefore the data is to be transmitted to the plaintiff’s expert in its native format. Counsel should confer about how to ensure forensic continuity so that there is no doubt the copy is complete and accurate."

Jorgensen v. San Jose Mines et al, 2004 BCSC 1653 (CanLII) Date: 2004-11-26 Docket: L023369;S036753. I.H. Pitfield, J. The defendants sought delivery of the electronic database used by the plaintiffs to compile the list of documents. The court held that the use of a software program to facilitate the production of the list is a choice that it made and it is part of that firm's work product, but ordered the defendant to tender $4,000 to the plaintiff’s firm in order to have a copy of the database in electronic form. The $4,000 covered a share of the cost of preparing the database.

Logan v. Harper, 2003 CanLII 15592 (ON S.C.) Date: 2003-10-17 Docket: 94-CQ-056153. Master MacLeod. The defendants had produced the documents along with a searchable index in electronic form. The index did not permit full-text searching of the documents, although the version of the application used by counsel for the defendants did offer that feature. The master considered litigation support and document management software not normally subject to disclosure, and accepted as reasonable that plaintiff’s counsel purchase a licence for the software independently in order to have the full-text search feature.

Wilson v. Servier Canada Inc., 2002 CanLII 3615 (ON S.C.) 2002-09-27 Docket: 98-CV-158832. Cumming J. the court granted the plaintiff’s motion for an order directing the defendant to release the objective coding of the documents in their litigation support database in order to satisfy meaningful disclosure, given the volume of documents.

Cholakis v. Cholakis, [2000] M.J. No. 6 (Man. Q.B) January 11, 2000. Docket: Winnipeg Centre CI 95-01-92830. Monnin J. Information printed as a hard copy may not be enough. The interest of broad disclosure in a modern context require, in my view, the production of the information in the electronic format when it is available.” ( para 30). These same defendants will have a reasonable period of time in which to see whether the electronic program can be modified such that the production of the data is limited to those areas of the financial statements that were ordered to be disclosed in the Order of June 5, 1998. If this cannot be done without impairing the accuracy of the remaining information, then the program and data should be produced in their original form. If the information is provided in a revised format, there should be an accompanying affidavit from these defendants or a party involved in the revisions, providing details as to how the information was modified and confirming that only the irrelevant information has been removed from the program. (paras 34, 35)
 

Meet and confer

JDS Uniphase Inc. v. Metconnex Canada Inc., 2006 CanLII 34432 (ON S.C.) Date: 2006-10-16 Docket: 05-CV-31806. Master Beaudoin. In this case the parties attempted to comply with (i.e. the Ontario eDiscovery) guidelines in that they discussed the method of exchanging and producing documents in an electronic format. There was an agreement to this effect reached by the parties on the 12th of December 2005.... Notwithstanding the Plaintiffs’ efforts to produce documents in a common format the Defendants identified deficiencies in the Plaintiffs’ Summation database. Numerous e-mails were exchanged between the parties and their common document-processing company. After some time, an agreement was reached where the Plaintiffs would produce its Summation database with same level of functionality as that of the Defendants (e.g. including the metadata). There was an increased cost in the amount of $26,983.46. The Defendants paid one half of that cost and now seek to have their share reimbursed. (para 8 and 9). Discussion of cost splitting.

Sycor Technology Inc. v. Kiaer, 2005 CanLII 46736 (ON S.C.) 2005-12-15 Docket: 04-CV-264018CM 2. Master Calum U.C. MacLeod. Production of documents from electronic sources by the plaintiff, where the cost of printing and photocopying the documents will exceed $50,000. Suggestion of using electronic production and possibly computer experts to identify what exists and what is truly relevant to the issues that are actually in dispute. Parties are to meet and discuss the method and cost of production.  First cite of Ontario eDiscovery Guidelines. Reference to the eDiscovery issue of LAWPro magazine.

CIBC World Markets Inc. v. Genuity Capital Markets, 2005 CanLII 3944 (ON S.C.) Date: 2005-02-16 Docket: 05-CL-5690;05-CL-5716. J. M. Farley J. "I would expect that the sooner all counsel sit down together to map out a litigation schedule, the better off all parties will be. I would request counsel to jointly advise me of a target date for that schedule to be provided to me. The court expects counsel/parties to work out problems/difficulties as quickly and reasonably as possible and in a practical way while not infringing on anyone’s true rights. If for some valid reason something cannot be accomplished in that regard, counsel should attend upon me at a convenient 9:30 appointment or at a case conference."

Logan v. Harper, 2003 CanLII 15592 (ON S.C.) 2003-10-17 Docket: 94-CQ-056153. Master Calum U.C. MacLeod. Before indexing and scanning the documents, it would be useful for the parties to discuss how the documents are to be identified and organized and to agree upon the electronic format for the documents.  If the parties can agree on a mutually acceptable system it may well save time, cost and confusion. It may be that Health Canada has an indexing and identification system that it would be appropriate to adopt.

Canada (Commissioner of Competition) v. Air Canada (T.D.), [2001] 1 F.C. 219, 2000 CanLII 17157 (F.C.) Parallel citations: (2000), 78 C.R.R. (2d) 134; (2000), 8 C.P.R. (4th) 372; (2000), 186 F.T.R. 49 Date: 2000-07-21. Reed J. "Counsel for the Commissioner noted that, at the time the Commissioner sought the section 11 order, he did not know what the record-keeping practices of Air Canada were. Counsel indicated that in so far as there were real difficulties in responding to the requests, as a result of the form in which they had been asked, this should be the subject of discussion between counsel, before the Court was asked to adjudicate further on it. That aspect of Air Canada's present motion was therefore set aside to allow for such discussion." (para 27.)

Process for review of electronic documents for relevance and privilege

Air Canada v. Westjet Airlines Ltd., 2006 CanLII 14966 (ON S.C.) Date: 2006-05-06 Docket: 04-CV-266629CM2. Nordheimer J. "This motion raises the relatively new issue of a party’s obligations regarding the production of electronic documents or “e-discovery” as it is sometimes referred to. Specifically in this motion, the plaintiffs seek an order: (i) confirming that if any privileged documents are inadvertently produced by the parties during its document production, such productions will not constitute a waiver of privilege, and; (ii) confirming that if documents are produced by the parties during the document production process, such production will not constitute an admission of the relevance of all or a portion thereof." Motion was dismissed. Discussion includes references to the American Sedona Principles and the Ontario eDiscovery Guidelines.

Disclosure of privileged and private communications

Trafford Holdings Ltd. v. Batchelor, 2007 BCSC 58 (CanLII) Date: 2007-01-12 Docket: 06 3526. B.F. Ralph J. Implementation of six factors mentioned in Celanese to determine if counsel should be removed in a case where the solicitor had been present during the execution of an Anton Piller order and had seen materials that were privileged. The court concluded that they wasn't sufficient evidence that the plaintiff's solicitors had received privileged information during the search and the application was dismissed.

Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (CanLII) Date: 2006-07-27 Docket: 30652. Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ. Headnotes from Supreme Court of Canada: "Civil procedure — Removal of counsel — Plaintiffs’ lawyers seizing electronic documents from defendants’ premises pursuant to Anton Piller order later found to include documents subject to solicitor‑client privilege — Plaintiffs’ lawyers conducting partial review of documents — Defendants seeking to remove plaintiffs’ lawyers as solicitors of record — Whether onus on plaintiffs to rebut presumption of prejudice — Whether plaintiffs’ lawyers should be removed."

Chan v. Dynasty Executive Suites Ltd., 2006 CanLII 23950 (ON S.C.) Date: 2006-07-17 Docket: 02-CV-223930 CM3. Belobaba J. In a case alleging fraud, conspiracy and breach of fiduciary duty, the defendants moved for removal of plaintiff's counsel. Defendants had inadvertently included privileged documents in their production set and notified plaintiff's counsel as soon as they became aware. Plaintiff's counsel refused to return the documents despite repeated requests, saying in the first instance that the documents weren't privileged and in any case, any privilege had been waived. Court ruled that the firm be removed as the solicitor of record for the plaintiff.

Dublin v. Montessori Jewish Day School of Toronto, 2006 CanLII 7510 (ON S.C.) 2006-03-15 Docket: 04-CV-277495CM2. Master Carol A. Albert. The issue is whether an email communication over which Montessori Jewish Day School of Toronto and the other defendants (“Montessori”) claim privilege, and which was inadvertently produced to the Dublin plaintiffs (“Dublin”), ought to be returned and treated as a privileged communication. An issue was that the email was printed from an account other than the original recipients, raising the question of whether privilege had been waived because information had been disclosed to someone else. "The fact that an email from Ms Nashman to Mr. Steinberg was printed from her husband’s account does not mean that it was read by him any more than letter mail addressed to her and placed in the home’s mail slot would be opened by Bruce. There is insufficient evidence to find that Bruce read the email." Motion for the return of the document inadvertently produced was granted.

National Bank Financial Ltd. v. Potter; Barthe v. National Bank Financial Ltd.; 1384156 Ontario Inc. v. National Bank Financial Ltd., 2005 NSSC 264 (CanLII) 2005-10-05 Docket: S.H. 206439/208293/216543. Revision to 2005 NSSC 113 (below).  J.E. Scanlan J.

National Bank Financial Ltd. v. Daniel Potter, 2005 NSSC 113 (CanLII) 2005-05-10, Docket: SH 206439. J.E. Scanlan J. Solicitor-client communications are privileged. In this case solicitors for National Bank Financial Limited (NBFL) did not properly respect solicitor-client privilege of the applicants; Daniel Potter, Knowledge House Inc. (KHI) and Starr’s Point Capital Incorporated. Counsel for NBFL came into possession of KHI servers, including all privileged and private communications. Counsel for NBFL who have been or may have been privy to the contents of the privileged solicitor-client communications were removed.

Potter v. Courtney, 2005 NSSC 174 (CanLII) Date: 2005-06-22 Docket: S.H. 235231. Suzanne M. Hood J. Tort of Conspiracy brought by plaintiff against Raymond Courtney of Navigator Technologies, with whom plaintiff had contracted for the disposal of the computer equipment owned by Knowledge House Inc. Plaintiff claims that defendants turned emails over to National Bank Financial, following which Financial sued the plaintiff. Since the legal determination of the tort of civil conspiracy will be based upon facts which will only come out at trial in the KHI matter, the motion to strike the pleadings has been dismissed and this action stayed.

National Bank Financial Ltd. v. Daniel Potter et. al., 2004 NSSC 100 (CanLII), Parallel citations: (2004), 224 N.S.R. (2d) 231, 2004-05-14 Docket: S.H.206439. Application by Nova Scotia Barristers' Society to intervene as a friend of the court. Background: the plaintiff Bank came into possession of a server originally owned by one of the defendants, Knowledge House Inc.  That server contained e-mails to and from a number of individuals who are party to this or related proceedings. The judge stated the issues reach far beyond the question of the plaintiff getting as much information as it can to prosecute this case or the defendants keeping out.  How should lawyers deal with evidence which they know or suspect may include privileged communications?  What processes could be instituted when they encounter such as situation?  Is the situation different when dealing with electronic communications which may be held in several locations at once?   What are the ownership rights of information stored on a server owned by a third party and does it alter the expectations in relation to solicitor-client privilege?  What should occur if privileged information is viewed by opposing counsel? These are all questions that go well beyond the specific interests of the parties to the present litigation. How these, and many other issues that m