The Rules of Civil Procedure in Ontario require
litigants to preserve and to produce documents and information that
are relevant to the legal dispute in question. Given how many
workplaces operate, the role of electronic documents and data has
become more important than ever. Although the rules vary slightly
from province to province, many of the general obligations are the
same for litigation across Canada. The following is a handy
quick-reference tip sheet designed to help employers work toward
meeting their obligations when litigation looms. If counsel is
retained, specific advice can be provided regarding the relevance
of particular documents or information. It is useful to consider
The parties to litigation are required to actively search for,
preserve and ultimately produce (unless a legal privilege is
applicable) any information that is relevant to the issues in
dispute in a legal action.
Tip: The obligation covers information that is helpful,
neutral, or harmful. There are significant sanctions for failing to
disclose information, and there is a strong chance that a good
lawyer will ask the proper questions to determine if something is
The issues that are in dispute are defined by the pleadings
(most notably the Statement of Claim and the Statement of Defence)
that have been prepared. In an employment context, a good starting
location will be the employee's file.
Tip: Legal counsel can assist in determining relevance.
Generally an allegation of constructive dismissal, dismissal for
cause, or of harassment will have more issues that require the
production of information as opposed to the average wrongful
Very often there is relevant and important information to be
obtained that does not exist in the paper file kept by Human
Tip: It is rarely appropriate to stop the search at only the
E-mails are one of the most common forms of relevant electronic
Tip: Extra steps are often required to retrieve relevant
e-mails from the company server, or any number of other computers,
personal devices or removable storage devices such as memory
Spreadsheets, word-processed documents, accounting programs,
attendance logs, electronic voicemail, electronic calendars and
many other sources of information may need to be canvassed.
Tip: Steps should be taken to consider what other sources
beyond e-mail might provide relevant information, and to ensure
that this information is preserved.
Electronic documents are prone to manipulation and can be
changed, even unintentionally. Electronic records can provide
information that is not obvious from their face.
Tip: A paper copy may show the document itself, however, a
piece of electronic information may contain "metadata"
that indicates such useful information as when the item was 1)
created, 2) edited, or 3) viewed. If there is reason to believe
that this metadata could provide important information, then the
electronic record itself will likely have to be produced.
With the assistance of forensic analysis, deleted items can
frequently be recovered if the particular hardware (for example the
desktop computer itself) is preserved.
Tip: It can often be determined whether a party has taken
steps to delete information. This determination can significantly
impact credibility and consequently either help or harm your
If a certain piece of information has been deleted or gone
missing, or if no steps were taken to preserve the item, then it is
possible that an adverse inference could be drawn against the
responsible party. It could be assumed that since the employer (for
example) did not take care to locate or to preserve a particular
item, then the item was not helpful to the employer and may even
have been harmful.
Tip: It is a very unsafe practice to ignore or
"bury" information that is considered harmful to your
If a party fails to produce an item at the early stages of
litigation, and they later wish to rely on this item, they may be
prevented from doing so. That said, the duty to disclose relevant
items is ongoing.
Tip: It will assist you to do a careful search at the outset
of litigation or even at the first suggestion that a conflict will
There have been plenty of disputes in the past regarding the
length to which parties should be required to search for, preserve
and produce information that is claimed to be relevant. As of
January 1, 2010, the Rules have been amended to take
specific consideration of the time, expense, and undue prejudice
that is required to gather and / or produce requested
Tip: This analysis was not formally recognized previously
and it will be interesting to see how the law develops in this
regard. The intention is clearly to make the process of searching
for information more proportional to the nature of the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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