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
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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