The Nova Scotia Court of Appeal recently grappled with questions
of relevance, proportionality and privacy in the context of whether
or not to order the production of electronic information.
The court in Laushway v. Messervey, 2014 NSCA 7 affirmed an
order requiring a plaintiff to produce a hard drive for forensic
review because it contained metadata (essentially data about data)
which could show how much time the plaintiff spent at his computer,
a point central to his lost income claim.
The Court of Appeal helpfully created a list of factors for
judges to consider when deciding whether to grant a production
order in similar circumstances (at para. 88):
If it would assist trial judges in the exercise of their
discretion when considering whether or not to grant production
orders in cases like this one, let me suggest that their inquiry
might focus on the following questions. They would supplement
the guidance already contained in the Rules. The list I have
prepared is by no means static and is not intended to be
exhaustive. No doubt the points I have included will be
refined and improved over time, and adjusted to suit the
circumstances of any given case:
1. Connection: What is the nature of the
claim and how do the issues and circumstances relate to the
information sought to be produced?
2. Proximity: How close is the
connection between the sought-after information, and the matters
that are in dispute? Demonstrating that there is a close
connection would weigh in favour of its compelled disclosure;
whereas a distant connection would weigh against its forced
3. Discoverability: What are the
prospects that the sought-after information will be discoverable in
the ordered search? A reasonable prospect or chance that it
can be discovered will weigh in favour of its compelled
4. Reliability: What are the
prospects that if the sought-after information is discovered, the
data will be reliable (for example, has not been adulterated by
other unidentified non-party users)?
5. Proportionality: Will the
anticipated time and expense required to discover the sought-after
information be reasonable having regard to the importance of the
sought-after information to the issues in dispute?
6. Alternative Measures: Are there
other, less intrusive means available to the applicant, to obtain
the sought-after information?
7. Privacy: What safeguards have
been put in place to ensure that the legitimate privacy interests
of anyone affected by the sought-after order will be protected?
8. Balancing: What is the result
when one weighs the privacy interests of the individual; the public
interest in the search for truth; fairness to the litigants who
have engaged the court's process; and the court's
responsibility to ensure effective management of time and
9. Objectivity: Will the proposed
analysis of the information be conducted by an independent and duly
qualified third party expert?
10. Limits: What terms and
conditions ought to be contained in the production order to achieve
the object of the Rules which is to ensure the just, speedy and
inexpensive determination of every proceeding?
The McCarthy Tétrault Opinions Group consists of
members of the firm's litigation department whose practices
focus on written advocacy and the provision of strategic advice and
opinions in the context of complex business disputes and
transactions. The members of the Opinions Group are Anthony
Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten
A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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