Canada: Tips for Employers - Gathering the Evidence When an Employee Decides to Sue

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 that:

  • 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 missing.

  • 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 dismissal.

  • Very often there is relevant and important information to be obtained that does not exist in the paper file kept by Human Resources (HR).

Tip: It is rarely appropriate to stop the search at only the HR file.

  • E-mails are one of the most common forms of relevant electronic information.

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 sticks.

  • 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 case.

  • 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 case.

  • 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 arise.

  • 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 information.

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 claim.

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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