Canada: Mathieson v. Scotia Capital Inc., 2008 CanLII 45409 (ONSC)

This matter involved the termination of an employee and allegations of bad faith against the former employer. The plaintiff argued that e-mails between 8 identified principals of the employer which mentioned his name should be produced. In answering an undertaking, the defendant searched the e-mails of those 8 principals for the plaintiff's name, resulting in 25,000 hits. The defendant produced 27 of those e-mails, while the plaintiff wanted all 25,000.

Master Sproat dismissed the motion and awarded $1500 in costs to the defendant. The Master held that the rules and principles applicable to electronic discovery did not apply since all of the documents in dispute could be printed in hard copy.

The Master also held that there was no evidence that the defendant had failed to disclose any relevant documents. Just because there were 25,000 hits, it did not mean that any documents had been improperly withheld. There were no gaps in the documents and no evidence that any relevant documents were missing. The Master distinguished Vector Transportation Services Inc. v. Traffic Tech Inc. et al, [unreported, March 17, 2008] Ont. SC per Perrell J. on the facts since in that case there was affidavit evidence that documents were missing and had been deleted.

Canadian National Railway Company v. Western Grain Cleaning & Processing Ltd.,2010 SKQB 59 (CanLII)

Both parties in this matter complained of deficient documentary disclosure but for different reasons. After determining that the defendant was not in contempt of court for failing to attend at examinations for discovery as per a court order, the Judge turned his mind to the issue of disclosure.

The plaintiff complained that the defendant had produced a "statement as to documents" which listed 96 groups of documents representing 19,000 documents. The plaintiff argued that there needed to be more description provided in order to make any use of the 19,000 documents. The judge agreed and ordered the defendant to provide more detailed descriptions of either all 19,000 documents or just those that actually met the "broad relevance" test applied in Saskatchewan. The defendant was ordered to provide a more detailed description of those documents that touch on any issues in the action in a way that is more than just background.

The defendant complained that the plaintiff's documentary disclosure only related to its own claim and ignored the issues raised by the defendant in its defence and counterclaim. The plaintiff responded that the claims in the defence and counterclaim were too vague to discern what documents might be relevant.

Most of the plaintiff's documents were electronic, meaning that they are to be disclosed in accordance with the principle of proportionality, including a consideration of whether the documents appear more directly relevant to the issues than some documents which must be disclosed under the broad relevance test.

Even under the broad relevance test, the defendant was asking for too much in the way of disclosure. It was unreasonable to request disclosure of every document of every description, relating to all transactions between the parties covering the entire period of business between the parties. The judge determined that the parties must proceed to discovery knowing that more documents will emerge as relevant once more is known about the action, and reminded the parties that disclosure is an ongoing obligation. With one exception for a group of documents that was relevant to the issues in the defence and counterclaim and was ordered to be produced, the defendant's application was dismissed.

The judge also determined that the proper officer had been put forth as a representative of the plaintiff, and awarded costs of the motion to the plaintiff in recognition of the defendant's breach of the prior court order.

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