Older Canadian E-Discovery Case Law
(Common Law)
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below Disclaimer
Created March 1, 2011
This digest contains older e-Discovery caselaw, typically before 2005,
that is infrequently cited and that has been removed from the
e-discovery case digest. More recent case law may by found on the OBA e-Discovery case law digest and the LexUM e-Discovery case law digest.
Scope
of production and discovery
Requests
for further production
Effect
of failure to disclose or produce for inspection
Demands for
particulars
Preservation of evidence
Spoliation
Discovery
Plan
Proportion
and Marginal Utility
Document
Retention Policies
Acceptable Use
Policies
Form of production
Meet and confer
Process
for review of electronic documents for relevance and privilege
Disclosure of
privileged and private communications
Cost Shifting
Metadata, deleted and hidden
information
Duplicate Documents
Admissibility
of Internet Information
Examination
of an IT Representative
Forensic Collection and
Preservation
Privacy Issues
Third
Party Information and Norwich orders
Anton Piller
Orders
Temporary
Internet Files
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. 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 productionRhodia
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."
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.
1998 CanLII 5136 (NS 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)
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.
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).
Demands
for particulars
Border
Enterprises Ltd. v. Beazer East, Inc., 2003 BCSC 49
(CanLII) Date: 2003-01-09 Docket: C974540 Tysoe J (as he was then). In
an environmental case, the defendants demand particulars of the
allegations. In essence, "the real competition between the parties is
that the Federal Crown wishes to keep its allegations against Beazer as
broad as possible, while Beazer wishes to know the allegations with
particularity. The Federal Crown wishes to leave the door
open in case the discovery process discloses additional information
which supports claims of the nature pleaded against Beazer.
On the other hand, Beazer wants to know the case it has to meet and
wishes to limit the amount of documents which it is obliged to produce
on discovery." (para 29) The court held, "(T)he Federal Crown is
required to make specific allegations against Beazer on the information
which is known to it and those allegations form the basis of relevancy
for discovery purposes. If the Federal Crown learns
additional information, it is entitled to provide further particulars
and the discovery process will be widened accordingly." "If such
misrepresentations were made by Beazer to it, the Federal Crown should
be aware of the nature of each misrepresentation, when it was made, who
made it, to whom it was made and how the Federal Crown relied on it to
its detriment. The discovery process should be limited to the
known misrepresentations but if other misrepresentations come to light,
the Federal Crown can provide further particulars pursuant to Rule
19(11.1)." (para 32) The court goes on to propose "(a) staged
production of documents in the present circumstances for two
reasons. First, the Federal Crown has not yet provided
adequate particulars of its claims against Beazer and the parameters of
discovery are governed by the pleadings (including
particulars). Second, in a case such as this one, where the
Federal Crown is making broad allegations of material non-disclosure,
there should be reasonable limits placed on the extent of document
disclosure until there is evidence which establishes that further
disclosure is warranted. If one stage of document disclosure
illustrates that there are likely to be other relevant documents, then
there should be a further stage of disclosure." (para 53)
Culligan
Canada Ltd. v. Fettes, 2009
SKQB 343 (CanLII) 2009-09-01. Ball J. In an application for injunctive
relief in a breach of fiduciary duty and misuse of confidential
information by former employees, the plaintiff seeks, among other
things, an order for preservation and production of information. In
para 50, the court states that the plaintiffs did try to recover
information from the laptops used by the former employees, but the
critical documents on the disks had disappeared and there was a
disk-wiping utility on all the laptops, according to the forensic
company FDR. In para 87, the court confirms the parties were
obligated to take "reasonable and good faith steps to preserve and
disclose relevant electronically stored documents. If deleted or
residual documents may be relevant, that information must be
communicated to the other party early to mitigate the consequences of
potential claims of spoliation". In para 88, the court then extracts
language from Practice Direction 6, E-Discovery Guidelines, that came
into effect September 1, 2009. The Guidelines require parties to confer
early and throughout the proceedings. The court therefore declines to
make the order until the conferences have taken place.
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)
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).
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."
Dawes
v. Jajcaj et al.,
1999 BCCA 237 (CanLII) Date: 1999-04-14 Docket: CA021160.
Written reasons by The Honourable Mr. Justice Finch. "[69] At present
therefore, the principle of spoliation remains simply an evidentiary
presumption which can, as the cases indicate, be rebutted. There is no
common law duty of care to preserve property which may possibly be
required for evidentiary purposes. An obligation to preserve property
can only be imposed by court order granted pursuant to the provisions
of British Columbia Rules of Court, r.46(1). What remedy might flow
from the intentional, or negligent, breach of such an order is a
question which does not arise in this case."
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.
Discovery Plan
Rule
29.1 of the Ontario Rules of Civil Procedure was introduced
in January 2010 and requires the preparation of a discovery plan.
Section 29.1.03(3)
states that the plan shall include:
- the intended scope of documentary discovery under
rule 30.02, taking into account relevance, costs and the importance and
complexity of the issues in the particular action;
- dates for the service of each party’s affidavit of
documents (Form 30A or 30B) under rule 30.03;
- information respecting the timing, costs and manner
of the production of documents by the parties and any other persons;
- the names of persons intended to be produced for oral
examination for discovery under Rule 31 and information respecting the
timing and length of the examinations; and
- any other information intended to result in the
expeditious and cost-effective completion of the discovery process in a
manner that is proportionate to the importance and complexity of the
action.
First
Choice Capital Fund Ltd. v. First Canadian Capital Corp.,
2000 SKQB 403 (CanLII) Date: 2000-09-29 Docket: QB 1757/96 JCS. Baynton
J. Not a *new* case, but included for its approach to the broad nature
of the documentation sought, which might "well take months to amass and
thousands of square metres to store." "The first is to limit the
discovery and production order to those individual plaintiffs who have
been selected for the test case. The second is to limit the
time focus of the order to the status of the respective individual
plaintiffs during the period of time they received the offering
memorandum and acquired the investments that are the subject of this
lawsuit. The third, as suggested by the solicitor for Blewett
& Blewett and Company, is to provide for discovery and
production of the documents set out in the first category in two
stages. The first stage would consist of a statement or
affidavit prepared by each individual plaintiff involved in the test
case outlining his or her net worth, summarizing his or her business
experience, and setting out in general terms the nature of the
documents in his or her possession or power which would establish or
support the information given in the statement or affidavit.
The second stage (if Deloitte deemed it necessary to bring a more
focussed application) would consist of an order for disclosure of
specific kinds of documents." (para 22) 1176560 Ontario Ltd. v. Great
Atlantic & Pacific Co. of Canada Ltd.,
2003 CanLII 21408 (ON S.C.) Master MacLeod discusses the exercise of
discretion by the court to control the discovery process in paragraphs
11 and 12. "Control of the process by the court may take different
forms. Firstly, even relevant inquiries may be restricted if
they are
unduly onerous or abusive. Secondly, the court may direct
that the
party requiring discovery or production that appears to be relevant but
not essential shall pay the cost. Thirdly, in complex cases,
it may be
necessary to provide for managed production and discovery where the
court plays an active ongoing role in managing the process.
In the
latter situation, it may be necessary to examine the information
uncovered by a particular level of production and to refine the issues
in dispute before determining if a more detailed level is required. It
may even be necessary to put the parties to certain elections
concerning their position at trial before determining the extent of
production or discovery." 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.)
Murao
v. Blackcomb Skiing Enterprises Ltd. Partnership,
2003 BCSC 558 (CanLII), 2003-04-10, J Sinclair-Prowse J. In this
personal injury case, the plaintiff had been rendered a quadriplegic at
the age of 17 while riding in the snowboard park at Blackcomb Mountain.
Although the defendant had already produced all reports of snowboarding
accidents that had occurred that year in the snowboard park, the
plaintiff sought accident reports from several previous years. The
defendant sought an exemption from this further production under B.C.
Supreme Court Rule 26(1.2) . The Court recognized that the production
sought would be costly and time consuming but decided this was
outweighed by the relevance of the additional documents sought and the
seriousness of the plaintiff’s injuries. In obiter commentary, the
Court stated that it might have ruled differently had the plaintiff’s
injuries been less serious. (summary courtesy K.Littmann)
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.
Peter
Kiewit Sons Co. of Canada Ltd. (c.o.b. Kiewit-Ceco) v. British Columbia
Hydro & Power Authority, 1982 CanLII 575
(BC S.C.), 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).
Document
Retention
Policies 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).
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.
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)
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.
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 may arise, are dealt with may well affect the rights
of the public and the administration of justice in many future cases.
Autosurvey
Inc. v. Prevost, 2005 CanLII 36255 (ON S.C.)
2005-10-11, Docket: CV-05-004518-00. M.G.J. Quigley J. In early May of
2005, the Plaintiff, Autosurvey Inc. (“Autosurvey”) commenced
litigation against its former business partner, Joseph Prevost
(“Prevost”), and his co-defendants (collectively the “Defendants”).
Autosurvey alleged that Prevost and the other Defendants
misappropriated intellectual property originally invented by Prevost,
but which Autosurvey claims now belongs to it. This motion
arises in response to Autosurvey’s actions in conducting a self-help
search of Prevost’s computer server and seizing its contents.
The Defendants sought an order staying this action. In the
alternative, they asked the Court to remove the firm of Davis Webb as
solicitors of record for Autosurvey. They sought these serious remedies
in response to Autosurvey’s conduct and in response to the actions of
Autosurvey’s solicitors. The court considered: "As
serious as it might be to remove Autosurvey’s counsel as solicitors of
record in this action as an expression of the Courts distaste and
rejection of their conduct and their client’s conduct, in my opinion it
provides the Defendants with no real or meaningful remedy in the
unusual circumstances of this case. If such a limited
sanction were to be imposed, Autosurvey itself would still remain
seized throughout the course of the litigation between these parties
with knowledge of the Defendants privileged communications.
As such, the only remedy, which can properly recompense the Defendants
in any meaningful way for Autosurvey’s conduct, is to bring the
proceedings to an end."
Emms,
Re, 2005 CanLII 6376 (ON S.C.) Date: 2005-01-27
Docket: 02-5149. R. MacKinnon J. Electronic documents seized during a
fraud investigation were reviewed for privilege. "After
hearing submissions and considering all documents and computer media
which Mr. Emms wished me to review, I issued a detailed order requiring
in part that a written record be created of all documents ruled
privileged (whether seized computer media or hard copy) and that it and
they be sealed and filed with the court. The Crown and police
were further prohibited on a continuing basis from reading or perusing
them. All CD documents ruled privileged were ordered deleted
from the court laptop after a new CD was made from that laptop of all
files on those 6 parsed down CD’s not ruled privileged.
Copies of the new CD were ordered to be provided to Mr. Emms, the court
and police. The remaining contents of the court laptop were
ordered to be fully erased and totally deleted. "
Pacific
Northwest Herb Corp. v. Thompson, 1999 CanLII 2038
(BC S.C.) Date: 1999-12-06 Docket: C9848. Melvin J. In a suit alleging
inappropriate conduct by a former employee, the plaintiff brought a
motion to retrieve information from the former employee's home
computer. Because the employee had used the computer to draft documents
related to a matrimonial dispute as well as communications with his
lawyer, he sought advice about how to erase information from the hard
disk and then used "F disk" to remove all information, including the
operating system.
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. (See paras 18-30, which
were cited in
Barker
v. Barker 2007 CanLII 13700 (ON S.C.).
Thomson
Kernaghan & Co. Ltd., (Bankruptcy of), 2003 CanLII 47453 (ON
S.C.)
2003-05-15 Docket: 31-OR-206917T Sidney N. Lederman J.
This is a move by the Trustee in a bankruptcy case for an order
directing the Trustee to refrain from incurring any further fees or
costs, in connection with the production of documents and oral
discovery in certain legal proceedings pending in the United States
unless the parties seeking such production and discovery cover such
fees and costs. The bankrupt is named as a party defendant in each of
the U.S. actions. Counsel for U.S. plaintiffs in one of the actions has
expanded their production request to require searching through emails,
computer hard drives and servers with a deadline of six weeks. The
Trustee asserts that the cost burden of meeting this request is out of
proportion with the order granting partial relief to the plaintiffs in
the U.S. actions from the stay of proceedings pursuant to the
Bankruptcy and Insolvency Act. The Trustee seeks protection for the
costs incurred in meeting the requests since it is not in the interests
of the bankrupt to assist plaintiffs litigating against other U.S.
defendants. The court does not accept the U.S. plaintiff’s argument
that the Trustee will benefit from the discovery and production in its
action against the bankrupt, and decided that the Trustee is entitled
to indemnification for the costs of the labour and expense pertaining
to the computer searches, printing and delivery of documentation and
oral discovery requested by the U.S. parties.
Business
Depot Ltd. v. Genesis Media Inc.,
2000 CanLII 22370 (ON S.C.), 2000-05-09, J. Macdonald J. Appeal from a
Master's decision requiring the plaintiff to pay for the accounting
required in its counter-claim against the defendant . "The
master
held that the appellant had advanced the claim for an accounting on the
basis of a very weak suspicion that it had been overcharged. The master
accepted that it would cost the respondent a significant amount to
search all of the storage boxes for the relevant documents from the
years 1992 through 1998." Appeal dismissed.
Bank of Montreal v. 3D
Properties Inc. et al. (No. 1) (1993), 111 Sask.R. 53 (Q.B.).
: May 20, 1993 Docket: Doc. Q.B. 535/90. Grotsky J. All reasonable
costs incurred by the plaintiff, including inter alia, searching for,
locating, editing, and producing said "documents": computer records,
discs, and/or tapes for the applicant shall be at the applicant's cost
and expense.
Prism Hospital Software
Inc. v. Hospital Medical Records Institute. 62 B.C.L.R. (2d)
393, [1992] 2 W.W.R. 157, 40 C.P.R. (3d) 97 November 25, 1991 Docket:
Vancouver Doc. C872267. Parrett J. During the course of this
litigation, and specifically during disclosure, the defendants produced
a quantity of magnetic media. This took two forms: firstly, floppy
disks, and secondly, magnetic tape backups. Plaintiff examined each
disk disclosed by the defendants, and after restoring the tape backups,
each hard disk as recorded by those tape backups. During the course of
his examination, he located and read a series of files or information
which though deleted, as I have described, continued to exist....The
files and programs stored on magnetic media are "documents," just as
files in programs stored on paper are. The difference between them is
the media and the techniques used to access that file or information.
...If the information accessed is fragmentary or incomplete, depending
on the purpose for which it is tendered, it may be necessary to provide
expert opinion as to what the information means. That particular
problem is best addressed in each individual case where the material
and the purpose for which it is tendered can be assessed by the trial
judge on the facts before him.
In Reichmann v. Toronto
Life Publications Co. et al. (No. 2), [1986] O.J.
1727 (Ontario High Court), there was a motion by the defendants to
compel the plaintiffs to produce a copy of a computer diskette upon
which a the document had been produced. The motion was
allowed. The computer diskette was included in the definition
of ‘document’ in the Rules. The court further indicated that
it would be inconsistent with current trends to refuse production and
discovery of the diskette. "The plaintiffs have been provided with a
copy of the manuscript produced from the disc but the defendants have
resisted production of the disc itself. I do not at all understand the
technology involved but it appears to be the position of the plaintiffs
that information would be made available to them by the possession of
the disc which is not obtainable from the product of the disc with
which they have been provided. "
Nicolardi
v. Daley, 2002 WL 35652 (Ont. Master), Heard:
January 31, 2002 Judgment: February 15, 2002 Docket: 97-CV-126314CM.
Dash Master. A party's obligation to disclose and produce all documents
in its possession, control or power, includes an obligation to
accurately disclose all such documents in its sworn affidavit of
documents, including documents once in a party's possession, but no
longer in their possession. As indicated "documents" include documents
that exist only in electronic form, and documents no longer in a
party's possession would include documents purged from a computer where
no paper or electronic copy exists. I am of the opinion that when a
failure to deliver all documents is an issue in the action, the
vigilance required to accurately convey this information is even more
critical. Further, even in the absence of this requirement in the
rules, a party should take proper care to ensure that
information it conveys as to the existence or state of documents is
accurate, particularly when the information it conveys is uniquely
within the knowledge of that party. (Italics P.D.) It is
certainly foreseeable that an opposing party may rely on information
provided as to the existence of documents, or as to the existence or
state of a computer in which documents reside electronically, and may
incur costs in pursuing production or inspection of those documents.
Robertson
v. Edmonton (City) Police Service (#9), 2004 ABQB
243 (CanLII) 2004-03-29 Docket: 010316123 Frans F. Slatter J. "There is
little authority on whether drafts are automatically producible in an
ordinary civil context when the final document is producible. The
production of the final version presumes that the final document is
material, relevant and not too remote to the issues. The test must be
whether the draft is also relevant and material, which must in turn
depend on whether some relevant inference can be drawn from the
differences between the draft and the final version. In some cases the
draft might be relevant itself, as when it discloses that the party
knew something, or when it first knew that fact. Here it is suggested
that differences between the various drafts will be relevant." (para 60)
Admissibility
of Internet InformationITV
Technologies Inc. v. WIC Television Ltd., 2003 FC
1056 (CanLII) Parallel citations: (2003), 29 C.P.R. (4th) 182; (2003),
239 F.T.R. 203 Date: 2003-09-10 Docket: T-1459-97. Tremblay-Lamer J. "In
my view, when considering the contents of a web site, the original is
found on the Internet and provides better evidence than a print copy.
The Court was able to see the documents as they existed on the
Internet, and could witness such features as hyperlinking and
interactive streaming that could not have been realistically reproduced
on paper." (para 13) "Overall, I am of the view that
the use of the Internet at trial was beneficial and on several
occasions, provided evidence which could not have otherwise been before
the Court. For example, the Internet was used by counsel for WIC to
confirm that the print copy of the meta tags (key information on a web
site) was in conformity with the information found on ITV Technologies'
web site. This would not have been possible without access to the
Internet.
(para 15)
ITV
Technologies Inc. v. WIC Television Ltd., 2003 FC
1056 (CanLII) Parallel citations: (2003), 29 C.P.R. (4th) 182; (2003),
239 F.T.R. 203 Date: 2003-09-10 Docket: T-1459-97. Tremblay-Lamer
J. "Given that web sites are continually changing
and evolving, a web site which appears on the Internet today would not
necessarily look the same as it did for example, in 1997. In order to
look into the past, both parties relied on the web site
www.archive.org,
which contains a digital library of Internet web sites. By using the
Way Back Machine, the parties were able to access the web sites as they
had existed at the relevant time period. I am satisfied that this web
site is reliable, and that the Court could rely on its digital library
for an accurate representation of the web sites at the relevant time
period." (para 14)
Examination
of an
IT Representative
Telemax Communications Inc. v. Canquest Communications (Canada) Inc.,
2006 CanLII 7033 (ON S.C.) Date: 2006-03-10 Docket: 02-CV-233323CM2.
Master Dash. "[13] Telemax sold pre-paid phone cards. Canquest provided
switching services to Telemax to route the pre-paid card calls and
provide PINs for card users pursuant to various agreements between
Canquest and Telemax. Canquest through its switch was to capture and
store telephone usage in its computer database including PINS,
originating and destination telephone numbers, number of seconds on
each call and other time related data. Canquest generated Call Detail
Records (“CDR”) that was used to generate invoices. This commercial
dispute centres on the validity of the invoices rendered by Canquest to
Telemax for use of its switching services. Telemax claimed it did not
pay the invoices because they were excessive and not supported by the
data provided. Telemax has contended throughout that it never received
complete and accurate billing data from Canquest to support the
billings rendered." Corporate representative examined did not have the
necessary technical knolwedge. Under Rule 31.03(2)(b), the Court can
permit further corporate representatives to be examined in special
circumstances.
Netsmart
Inc. v. Poelzer, 2002 ABQB 800 (CanLII) Parallel
citations: (2002), [2003] 1 W.W.R. 698; (2002), 20 C.C.E.L. (3d) 195;
(2002), 8 Alta. L.R. (4th) 255 Date: 2002-09-20 Docket: 20311169
Neopost
Canada Ltd. v. 566812 Ontario Ltd., 2003 CanLII
34014 (ON S.C.) Date: 2003-09-16 Docket: 03-CV-254839CM1. Motion for
plaintiff to examine defendant's documents in place, in a case
involving theft of trade secrets from a former employer. Complex
request for an Anton Piller order involving a
not-yet-named defendant. Solicitors for the as-yet-unnamed defendant
did arrange for the forensic investigation firm Kroll Lindquist Avey to
seize and photocopy or image the documents in PCAN’s office, including
those in the offices of the individual defendants and other sales staff
and on their hard drives. They seized over 26 bankers’ boxes of
documents, including the contents of a paper recycling bin. One
banker’s box of documents clearly belonging to Neopost, including some
found in the recycling bin, have been returned to Neopost’s solicitors.
Kroll Lindquist Avey are still reviewing documents in an effort to
determine those belonging to Neopost.
First
Choice Capital Fund Ltd. v. First Canadian Capital Corp.,
1999 SKQB 235 (CanLII) Date: 1999-12-08 Docket: QB 1757/96 JCS. Baynton
J. "The second is an order requiring the defendants to preserve
potential evidence. Specifically, the plaintiffs seek an order
requiring the defendants to preserve all electronic data in their
possession or power that relates to any matters in question in the
action, by making two image copies of it, by retaining the image copies
intact for use in the action until further order, and by filing with
the court on or before January 15, 2000 written confirmation that the
image copies have been made and will be retained intact until further
order."
Geophysical
Service Inc. v. Sable Mary Seismic Inc., 2003 NSSC
73 (CanLII) Parallel citations: (2003), 213 N.S.R. (2d) 303 2003-04-01
Docket: SH190408. D.M. Hall J. An Anton Piller
order is set aside with the return of all copies of the materials
seized, owing in part to a breach of the order relating to the maximum
number of persons attending and also that the
prima facie case justifying the original request was not
sufficiently strong to require such an invasive order. As to the threat
of possible destruction, the court noted "Furthermore, if he had had
any inclination to destroy potential evidence I am certain that such
would have been dispelled by the fact that it is now known that such
evidence exists."
Privacy
IssuesSomwar
v. McDonald's Restaurants of Canada Ltd., 2006
CanLII 202 (ON S.C.) Date: 2006-01-10 Docket: 05-CV-283913-SR. Stinson
J. "With advancements in technology, personal data of an individual can
now be collected, accessed (properly and improperly), and disseminated
more easily than ever before. There is a resulting increased concern in
our society about the risk of unauthorized access to an individual’s
personal information. The traditional torts such as nuisance, trespass,
and harassment may not provide adequate protection against infringement
of an individual’s privacy interests. Protection of those privacy
interests by providing a common law remedy for their violation would be
consistent with Charter values and an "incremental revision" and
logical extension of the existing jurisprudence." (para 29)
Shred-Tech Corp. v. Viveen, 2006 CanLII 41004 (ON
S.C.) Date: 2006-12-05 Docket: C346-05. D.J. Gordon J. The defendants
are former employees and suppliers of the plaintiff. The plaintiff
retained an investigative agency to examine the activities of the
defendants in establishing a competing business. During discovery, the
defendants received the investigative report and became aware that the
investigator had obtained the defendants’ Bell Canada telephone records
without their consent or court order and that the investigator had made
audio and video recordings secretly and without permission. In a
counterclaim, the defendants allege invasion of privacy, trespass and
breach of confidentiality.
King
v. Merrill Lynch Canada Inc., 2005 CanLII 43679 (ON
S.C.) 2005-11-23 Docket: 02-CV-01979. R. Smith J. "Another key piece of
evidence contradicting the evidence of King, Crook and Firman was the
electronic record of telephone calls, which were recorded
contemporaneously by an electronic chip in the receiver of each
telephone set, at Merrill Lynch’s Ottawa office. The data recorded
shows the date and time of the call, the number called and the
originating number and the length of the call. The recording equipment
and software was owned by Avotus Corporation (“Avotus”), which is a
company in the business of recording telephone data and generating
reports for clients. Avotus provides such services for a number of
other large clients, including General Electric, Daimler Chrysler,
Hewlett Packard and the Bank of America. (para 76). At the
end of each day, all telephone data was automatically sent by modem to
a server located in Mississauga, where the data was stored. The
telephone data was recorded in the usual and ordinary course of
business of Avotus and Merrill Lynch and I have previously ruled in a
motion that the telephone records, extracted from the recorded data,
were business records within the meaning of
s.
35 of the Evidence Act, R.S.O. 1990, c. E.23. (para 77)."
Loblaw
Companies Ltd. v. Aliant Telecom Inc., 2003 NBQB
215 (CanLII) Date: 2003-06-02 Docket: S/C/522/03. H. H. McLellan J.
Someone obtained confidential payroll information for a
number of senior employees of the applicant's distribution
division. That person apparently sent an email with that
information to thirty-four employees of the applicant. The applicant
seeks the identity of the intended defendant through discovery of
Yahoo! and Aliant Telecom in accordance with rule 32.12 (of the New
Brunswick Court of Queen's Bench). The application was granted and the
Respondents ordered to identify, preserve and safeguard from
destruction all relevant information in their possession to identify
the holders of the e-mail accounts and the IP addresses.
BMG Canada
Inc. v. John Doe (F.C.), [2004] 3 F.C.
241, 2004 FC 488 (CanLII) Parallel citations: (2004), 239 D.L.R. (4th)
726; (2004), 32 C.P.R. (4th) 64; (2004), 250 F.T.R. 267 2004-03-31
Docket: T-292-04. von Finckenstein J. Practice -- Discovery --
Production of Documents -- Federal Court Rules, 1998, rr. 233, 238
application for order requiring production by non-party to action --
Identity of customers of internet service providers (ISPs). “However
while the law protects an individual's right to privacy, privacy cannot
be used to protect a person from the application of either civil or
criminal liability. Accordingly, there is no limitation in PIPEDA
restricting the ability of the Court to order production of documents
related to their identity.” (para 39)
BMG
Canada Inc. v. Doe, 2005 FCA 193 (CanLII)
2005-05-19 Docket: A-203-04. Canada’s music industry seeks
the names of people downloading music from the internet. They allege
that the only means of ascertaining the identity is through the
Internet Service Providers (ISPs), who provide the internet service to
the infringers. The ISPs, citing privacy concerns, have refused to
provide the names of the Internet users, who are downloading files of
the recording industry, without a court order. “The
information sought by the plaintiffs may be buried in logs and tapes
but is not presently in a readable format. Since the documents in a
readable format do not currently exist and would have to be created,
Rule 233 has no application. The Rule contemplates the production of
documents which are "in the possession of a person". It cannot be said
that documents which do not exist are in the possession of a person.”
“Thus, in my view, in cases where plaintiffs show
that they have a bona fide claim that unknown persons are infringing
their copyright, they have a right to have the identity revealed for
the purpose of bringing action. However, caution must be exercised by
the courts in ordering such disclosure, to make sure that privacy
rights are invaded in the most minimal way.” “In
any event, if a disclosure order is granted, specific directions should
be given as to the type of information disclosed and the manner in
which it can be used. In addition, it must be said that where there
exists evidence of copyright infringement, privacy concerns may be met
if the court orders that the user only be identified by initials, or
makes a confidentiality order.” This is an appeal of the
dismissal of the motion. Appeal was dismissed.
K.P.I.N.
v. K.N.N., 2005 BCSC 163 (CanLII). 2005-01-05
Docket Vancouver E040663. Groberman J. Anton Piller
order in a matrimonial case. The court was satisfied that "the
defendant has shown a settled intention not to comply with court orders
for production of information and documents, that there is a very
strong prima facie case that the defendant has
secreted assets and attempted to move them out of the jurisdiction".
Order was necessary to preserve evidence. In the "Delivery of Listed
Items" section, the order required the defendant to give "effective
access to the computers, with all necessary passwords, to enable them
to be searched." The Plaintiff was to take.. "all reasonable steps ...
to ensure that no damage is done to any computer or data". The
Supervising Solicitor might remove any and all computers so that a true
copy could be made of the contents. Schedule I attached as an appendix
lists the following that could be removed: any and all computers,
"zip-drives, computer backup and storage devices and information", "any
and all email or electronic or other correspondence relating to
financial matters", and any "on-line statements and receipts, whether
in print format or electronic format showing on-line financial records
or transactions of any kind". Canadian
Derivatives Clearing Corp. v. EFA Software Services Ltd.,
2001 ABQB 425 (CanLII) 2001-05-07 Docket: 0101-01734. T.F. McMahon J. De
novo review of an ex parte application for an Anton
Piller order. Plaintiff alleges that defendant had given
information had received in confidence for the development of a
software application to a company with a major interest in it, which
was also a competitor of the plaintiff. Defendant had not disclosed the
relationship with the parent company during the negotiations for the
contract. The plaintiff made and was granted an ex parte application
for an Anton Piller order for the preservation of
relevant information in the hands of the defendant. Order involved
mirror images of the hard drives on the Defendants computers. Defendant
vigorously protested the order and this decision is a de novo
review. During review it became clear that the information on the
computers had since been changed to comply with other elements of the
order and that the Defendant had neither tape backups or an archive
copy that would reflect the state of the software under dispute at the
beginning of the action. “The result is that there has been an
erasure of evidence that was previously stored on EFA’s computers. It
is appropriate to apply R.468(a) (Alberta Court of Queen’s
Bench) to preserve the mirror image copy in the bailiff’s
hands, as it may now be the only existing evidence of the state of
affairs at the time the action was commenced. Again, I emphasize that I
do not find EFA acted in bad faith or deliberately set out to destroy
evidence. Electronic data poses a particular challenge. Merely printing
out material from the mirror image copy will be unsatisfactory. Data
deleted from a disk drive may be recoverable. Information about the
creation, revision and deletion of data may surface. One of CDCC’s
goals is to trace the travels of its Confidential Information through
EFA’s system. CDCC suspects that it may be able to find an
inappropriate informational link between the CDCC and NexClear
projects. That endeavour would require certain computer expertise, and
may be the subject of a further hearing before this Court. For that
purpose, preservation of the mirror image copy is essential. Given what
is now known about the release of at least some of CDCC’s Confidential
Information to NexClear and its consultants, this cannot be described
as a fishing expedition…
There is no evidence or indication that EFA would destroy such
evidence, either in bad faith or as a routine matter. There is,
accordingly, no need or justification for preserving these documents in
independent hands.” Original order is attached.
Yaghi
v. WMS Gaming Inc., 2003 ABQB 680 (CanLII) Parallel
citations: (2003), [2004] 2 W.W.R. 657; (2003), 18 Alta. L.R. (4th) 280
Date: 2003-07-31 Docket: 0003-03707. Moen J. "However, there
are special difficulties in proving a case that relies on electronic
data, and special concerns about the risk of destruction of electronic
evidence. Given the transitory nature of computer evidence, the ease
with which someone knowledgeable about computers can delete evidence
from a hard drive, and the intimidating fashion in which Mr. Yaghi had
behaved to this point, I am willing to infer a real possibility of
destruction." (para 79)
Harris
Scientific Products Ltd. v. Araujo, 2005 ABQB 603
(CanLII) 2005-08-08 Docket: 0003 04105. J.B. Veit J. "The
breaches of the execution of the Anton Piller order
were numerous and serious. Indeed, the execution of the order could
serve as the poster case of what not to do on the execution of such
orders." (para 7.) "Awards for wrongful Anton Piller
orders have historically been low. In order to prevent abuse
of this intrusive mechanism, courts must award a level of damages that
exceeds the mere cost of doing business and that reflects the affront
which the abuse of these orders causes to those whose privacy has been
invaded." (para 8) In addition to more substantial awards, Alberta
courts might consider revising the rules of practice that govern access
to Anton Piller orders. The English
Rules, which always require an undertaking of confidentiality, which
typically require the use of an independent supervising solicitor and
which sometimes require the creation of a fund out of which damages can
be paid, might serve as a useful guide in this area." (para 9).
Netsmart
Inc. v. Poelzer, 2002 ABQB 800 (CanLII) Parallel
citations: (2002), [2003] 1 W.W.R. 698; (2002), 20 C.C.E.L. (3d) 195;
(2002), 8 Alta. L.R. (4th) 255 2002-09-20 Docket: 20311169.
R. Paul Belzil J. This is an application to set aside or vary an Anton
Piller Order earlier granted by the same judge, and a
cross-application to release items seized pursuant to the Order.
Documents, computers, computer components, as well as electronic media,
CDs and floppy disks were seized from residences as well as business
locations. Counsel for the Plaintiff met with counsel for the
Defendants to review all of the items seized, resulting in a Consent
Order providing for the return of the computers after copies were made
of the hard disks. These copies then became the only source of evidence
of what was on the hard drive at the time of the seizure...."In the
Province of Alberta there is no clearly defined uniform procedure in
place with respect to the execution of Anton Piller Orders,
and in particular, there is no Rule of Court or practice note in
place."...
Ridgewood
Electric Ltd. (1990) v. Robbie, 2005 CanLII 3946
(ON S.C.) Date: 2005-02-18 Docket: 1685/04. Corbett J. Observation
about the frequency of Anton Piller orders in
employment cases. "With the advent of computer technology, in
many cases Anton Piller orders will be effective
only if they can be enforced with speed and with an element of
surprise. It is not acceptable that the search be delayed for days, or
even hours, once the defendant has notice of the order. The information
or property to be preserved may be copied, transferred across the
world, and erased from a computer with a few apt keystrokes. Once the
order is served, the premises must be secured immediately, and the
search must proceed." (para 23b) A discussion of
inherent problems with the Anton Piller process.
...."people do believe, rightly, that uninvited private persons are not
entitled to barge into a private residence without permission. People
do believe, rightly, that this sanctity of the hearth does give way to
a properly authorized police search. People do believe, rightly, that
misconduct in a police search can be addressed in the courts. I
suggest, with respect, that the use of Anton Piller
orders in private residences is not understood by the public, and
creates an atmosphere that is not consistent with a free, open and
democratic society. " (para 59)
Celanese
Canada Inc. v. Murray Demolition Corp., 2004 CanLII
10143 (ON S.C.D.C.) Parallel citations: (2004), 69 O.R. (3d) 632;
(2004), 237 D.L.R. (4th) 516; (2004), 183 O.A.C. 296 Date: 2004-02-06
Docket: 03-CV-250875CM2. MacFarland, Ellen Macdonald, and C. Campbell
JJ. This is an appeal from an interlocutory order of Nordheimer J.
dismissing a motion to remove Cassels, Brock & Blackwell LLP as
solicitors for the Plaintiff and other related relief. "It is important
we think to note that counsel often come to the Court seeking Anton
Piller orders on an extremely urgent basis. The orders
themselves are by their nature, lengthy and contain many terms. The
Court very much relies on counsel, in making such orders, to not only
bring forward all of the relevant evidence but also to draft the
proposed orders in a way that will be least intrusive and which will
preserve the purpose of the order which is the preservation
of the evidence." (para 4, emphasis in original
text)
Celanese
Canada Inc. v. Murray Demolition Corp., 2003 CanLII
6649 (ON S.C.) Parallel citations: (2003), 69 O.R. (3d) 618
Date: 2003-09-02 Docket: 03-CV-250875CM2. Nordheimer J. Problems with
privilege in the seizure of electronic documents. "I reiterate that in
future such orders should expressly address the issue of the seizure of
possibly privileged documents. I reiterate that supervising solicitors
should be attune to the issue and be prepared to respond to it
regardless of whether the formal order does."
Grenzservice
Speditions Ges.m.b.h. v. Jans, 1995 CanLII 2507 (BC
S.C.) Parallel citations: (1995), 129 D.L.R. (4th) 733; (1995), [1996]
4 W.W.R. 362; (1995), 64 C.P.R. (3d) 129; (1995), 15 B.C.L.R. (3d) 370
Date: 1995-11-29 Docket: C944646. "Perhaps the time has come to
consider developing a standard form Anton Pillar
order." (para 112)
Society
of Composers, Authors and Music Publishers of Canada v. Canadian Assn.
of Internet Providers, 2004 SCC 45
(CanLII) Date: 2004-06-30 Docket: 29286 Binnie J for the
majority opinion. "The practice of creating “caches” of data speeds up
the transmission and lowers the cost. The subsequent end user may have
no idea that it is not getting the information directly from the
original Web site. Cache copies are not retained for long periods of
time since, if the original files change, users will get out-of-date
information." (para 23)
Ministry
of Water, Land & Air Protection, Re, 2002
CanLII 42480 (BC I.P.C.) Date: 2002-09-12 Docket: 02-46 David
Loukidelis, Information and Privacy Commissioner. "This is called
“caching”; each computer stores and preserves images locally that may
be wanted again. Using the readily accessible local copy prevents
reloading the image from a remote (and slow) source. Unix and Windows
operating systems routinely cache images, as do individual web
browsers. In particular, Netscape Navigator and Microsoft Internet
Explorer make use of caches in RAM memory and on hard disk. These
images are stored with particular names and time/date stamps, and they
can be retrieved, copied and printed. The user will not necessarily be
aware that these images are being stored, but it happens nonetheless."
(para 12) As noted in the SCC decision, though, cache copies are not
retained unless the users explicitly store them so they are available
"off-line".
Peg Duncan
March 1, 2011
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