Canada: Records Management @ Gowlings: August 9, 2011

Last Updated: August 15 2011

Edited by Louis A. Frapporti and Christopher Purdon

Legal Technology


Markson v. MBNA Canada Bank, 2011 ONSC 871 (CanLII)

In this class action the plaintiff claimed that the defendant bank had contravened s. 347 of the Criminal Code (charging or receiving interest at a criminal rate) by charging in excess of 60% interest on credit card cash advances.

The plaintiff brought a motion for an order requiring the defendant do conduct a more thorough search of their records, produce a further and better affidavit of documents, and a declarations that legal opinions obtained by the defendant regarding s. 347 were not subject to privilege.

The litigation plan stated that documents to be provided at this stage were those that were "relevant and necessary," and laid out specific categories of such documents. The plaintiff took issue with the document production by the defendant in its original affidavit of documents. Specifically, the plaintiff complained that not all relevant documents had been disclosed, and that the defendant had claimed privilege over documents that it was obliged to disclose.

The plaintiff identified three categories of documents that they sought production of:

  1. communication with cardholders, including communication that explains or gives meaning to the terms of cardholder agreements;
  2. all versions of cardholder agreements, disclosure statements and other documents that communicate or impact on the terms of the agreements with cardholders and the meaning and effect of the terms relating to interest on cash advances, and;
  3. all documents relating to the defendant's consideration of s. 347 of the Criminal Code or the charging of interest at a criminal rate.

During the course of the motion the parties agreed to expand the document search with regards to 1 and 2 (communication with cardholders and cardholder agreements). The judge found that the defendant had made significant efforts to identify and produce relevant documents, however affidavit evidence made it clear that some documents were still missing. The judge disagreed with the defendant's claim that the request for further documents offended the principle of proportionality.

With regards to the disclosure of documents concerning legal advice on s. 347 of the Criminal Code, the judge found that sufficient clarity and particulars had been provided.

The plaintiff argued that the documents were not privileged because the communications "arose in furtherance of an anticipated unlawful or criminal purpose." Also, the plaintiff argued that the defendant had "put its state of mind in issue through its reliance on the voluntariness defence" and had thus waived privilege.

The judge found that since such communication is prima facie privileged, the onus is on the plaintiff to prove that the defendant engaged in such communications for the purpose of committing a crime. The plaintiff had not met the burden of proof in this case. The judge also found that simply because the defendant had relied on the voluntariness defence did not mean that they were required to produce privileged documents.

Ultimately, the judge held that a further and better affidavit of documents be produced with regard to communications with cardholders, and versions of cardholder agreements. However, the request for privileged documents was dismissed.

Webb v. Jones, 2011 ONSC 2479 (CanLII)

In this case involving a pedestrian-vehicle accident, the judge first addressed a discrepancy in the plaintiff's affidavit. The date cited as the date of the accident was incorrectly listed as one year after the statement of claim had been issued. The judge noted that "[i]f affidavits are to be filed based on information and belief, counsel should take care that the deponents have their facts correct."

This motion was for further production of documents, specifically medical records for the plaintiff for three years preceding the accident. The judge noted that the production of these records is dependant on whether they are relevant to the claims made by the plaintiff in the action. Rule 30.02 creates an obligation on the plaintiff to produce "every document in his possession, control or power that is relevant to an issue in the action." This obligation is separate and distinct from the obligation to answer undertakings, and is an ongoing obligation.

The Court used the definition for "relevant" found in the Blacks Law Dictionary, Seventh ed. It provides that a document is relevant if it has probative value. The document must be "logically connected to an tending to prove or disprove a matter in issue." That is, there must be some persuasive value concerning an alleged fact for a given document to be relevant.

Ultimately, the judge found that the requested productions were relevant because the preceding three years of medical records contained information about complaints that were similar to ones that were allegedly attributable to the accident. However, the judge cautioned that this did not allow the defence to go "on a fishing trip through the plaintiff's medical history." It was limited to specific types of complaints and whether they arose before the accident.

The judge indicated that the order to produce the medical documents could be fulfilled by the plaintiff giving the defence authorization to obtain the records at their own expense.

Finally, the judge noted that the obligation to provide ongoing disclosure is necessary for a number of reasons. Specifically, "rolling production" of records facilitates settlement discussions and is necessary for trial preparation

Guestlogix v. Hayer, 2010 ONSC 4384 (CanLII)

The judge in this matter issued a Case Management Memorandum regarding how certain documents were to be disclosed. Originally, plaintiff had sought disclosures in a format other than the disc that the defendant was prepared to produce.

The judge indicated that if the plaintiff continued with their motion to get the production in a specified format, they would have to provide facts and law to answer three questions before the Court:

  1. Is the data sought by the plaintiff available in the format sought?
  2. Why does the plaintiff require the production of the data in the format sought?
  3. What, if any, undue burden would be imposed on the defendants to produce the data in the format sought?

The judge went on to indicate that the answers to these questions would be based on the principle of proportionality found in Rule 1.04(1) of the Rules of Civil Procedure, as well as the e-discovery proportionality from the Sedona Canada principles (Rule 29.1.03(4)).

In this supplemental Memorandum to the original, the judge added a requirement that the parties each serve and file a "Proportionality Chart-Document Production" in the format determined by the Ontario E-Discovery Implementation Committee.

The charts can be found at

Animal Welfare International Inc. v. W3 International Media Ltd., 2011 BCSC 299 (CanLII)

The plaintiff claimed damages alleging that the defendant failed to account for profits earned while the parties were operating an internet-driven animal supplies business. The plaintiff also sought disgorgement of profits earned by the defendant who allegedly continued using the plaintiff's customer list, website and database after the agreement was terminated.

In this application, the plaintiff requested production of certain documents. The documents were classified in one of three categories; a machine readable copy of the database customers of the original website and the defendant's new website, bank statements for any accounts held by the defendant to the date of trial, and pharmacy administrator reports for the original and the new website showing weekly sales, cost of goods, and profits.

Under a Profit Sharing Agreement, the plaintiff and defendant each attended to different aspects of the business, but the profits were to be split 50/50. Between 2007-2008 the plaintiff realized that it was being underpaid, while the defendant was diverting money from the account to itself.

The agreement was terminated in 2009, and the plaintiff sought damages for, in part, the defendant's failure to deliver the database back to the plaintiff, and for using the customer list for its new competing website.

Originally, Justice Rice had ordered that the customer databases of both websites be delivered up to the plaintiff in accordance with a clause in the agreement for division of the assets. This order was appealed and the appeal judge remitted the issue of what conditions should attach to the production of those documents to the trial judge.

The defendant argued that the order of Rice J. should be subject to conditions. First, that the requested data from both the original website and the new conflicting website should be referred to an expert who would obscure all private customer information and code each such entry. Then those customers whose codes appeared on both list would be identified in a list to be produced by the expert to the parties.

The defendant submitted that the customers of the new website had legitimate privacy concerns in terms of their credit card and personal information being supplied to the plaintiff. They also argued that the plaintiff's implied undertaking not to misuse the information obtained on discovery was not enough assurance, since the plaintiff had no employees, assets, or real place of business in British Columbia. The defendant argued that an anonymity system as described above would not prejudice the plaintiff's case, would protect the confidentiality of the customers, and should be paid for by the plaintiff.

The plaintiff argued that the cost of vetting the 30,000-40,000 customer list would be substantial, and that its principals were professionals, so there was no risk of the information being misused.

The Court found that the implied undertaking not to misuse the confidential information was sufficient. Further, the Court noted that there must be some evidence that the party whose information is to be protected had an expectation of confidentiality vis-à-vis the information at issue.

The judge noted that the court should strive to consider the need to protect the privacy interests of third parties in this instance. However, the implied undertaking may be sufficient to ensure that the private information would not be misused by the plaintiff. In coming to this decision, the judge had considered the object of the Rules and the principle of proportionality in Rule 1-3(2). The judge ultimately decided to have the two principals of the plaintiff corporation sign confidentiality agreements.

With regards to the "Pharmacy Administration Reports," the defence counsel attempted to avoid disclosure by distinguishing between "charts" and "reports," only the former of which the plaintiff had specifically requested. The Court held that this semantic distinction did not prevent the defendant from having to disclose all relevant documents.

Finally, Justice Armstrong then went on to consider the electronic data that the Plaintiff requested. Upon considering the Rules of the Court, and the relevant case law, the judge was clear that electronic data falls under the broad definition of "document," and as such must be produced. He added that if the data is stored in electronic form, it must be produced to the Plaintiff in that form.

News and Articles

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
16 Jan 2018, Seminar, Birmingham, UK

Join Gowling WLG's pensions team as they explain some of the biggest challenges facing trustees and employers in the coming year and provide practical ways of dealing with them.

23 Jan 2018, Seminar, London, UK

Join Gowling WLG's pensions team as they explain some of the biggest challenges facing trustees and employers in the coming year and provide practical ways of dealing with them.

25 Jan 2018, Seminar, Birmingham, UK

2018 is set to be another big year in employment, with employers set to face new challenges and responsibilities. At our event, looking ahead to next year, we will be discussing four key issues you might face in 2018, providing useful tips and answering your questions.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions