Canada: 2014 E-Discovery Year In Review

2014 was another eventful year for e-discovery and information management in Canada. Set out below are some of the major trends and developments that emerged over the last year.


The Sedona Canada Principles Addressing Electronic Discovery are being updated. For the past year, the Sedona Canada Working Group has been working on updating the principles, which were originally published in 2008 to reflect the growth of electronic discovery in Canada and the developments in the case law. The updated Sedona Canada Principles are expected to be published early in 2015.

The current principles continue to be recognized by courts in Canada. In Palmerston Grain v. Royal Bank of Canada, the Ontario Superior Court of Justice stated that the Sedona Canada Principles have been incorporated by reference into the Ontario Rules of Civil Procedure and that a failure to comply with the principles constitutes a breach of the rules. Other provinces, such as Alberta, have taken similar steps to incorporate the principles into the provincial process.


Courts continue to emphasize the importance of discovery planning and the need to put discovery agreements in writing. In Siemens Canada Ltd. v. Sapient Canada Inc.,Siemens asked the court to, among other things, impose a discovery plan on the parties. When the action started, the parties did not establish a discovery plan but proceeded to produce documents without communicating with each other. When Siemens produced 120,043 documents, and Sapient only produced 23,356 documents, counsel for Siemens began to question why Sapient had produced so few documents. The answer was their approach to discovery. While Siemens was partially successful on its motion, the Ontario Superior Court of Justice denied it any costs, noting that the parties were "the authors of their own misfortune" for proceeding without a discovery plan. And, in Coleman v. Neagu, the Ontario Superior Court of Justice held that an oral agreement to a discovery plan did not satisfy Rule 29.1.04(3) of the Ontario Rules of Civil Procedure, which requires that discovery plans be in writing. The takeaway from these cases is to ensure that you have a discovery plan and that it (and all revisions to it) be in writing.


Given the growth of electronically stored information, courts continue to emphasize the need for parties to craft a proportional discovery process based on the Sedona Canada Principles and the requirements of Rule 29.2 of the Ontario Rules of Civil Procedure. For example:

  • In Allianz Global Risks US Insurance Co. v. Canada (Attorney General), Master MacLeod of the Ontario Superior Court of Justice noted that "before producing large numbers of technically relevant but perhaps unimportant documents ... counsel are required to confer with a view to narrowing the scope of production." Master MacLeod stated that when dealing with electronic documents "the parties are required to consider proportionality and to have regard to the Sedona Canada Principles."
  • In Farrell v. Kavanagh, Justice Brown, then of the Ontario Superior Court of Justice, attached to his decision "Standard Case Management Directions for Proceedings Case Managed by D.M. Brown J." Under the section entitled "E-Discovery," it was stated that "[c]ounsel must explore creative ways to ensure that e-discovery costs remain proportionate to the complexity of the issues and the amount of money at stake in this case. Those creative ways can include (i) limiting the number of issues on which initial documentary discovery can be made, (ii) delaying e-mail documentary discovery until after core documents related to the limited issues have been exchanged, and then (iii) limiting the scope of e-mail documentary discovery."


Another trend has been to require parties to provide more details about the records over which they are claiming privilege. In Canadian Natural Resources Limited v. ShawCor Ltd., the Alberta Court of Appeal changed how litigants in Alberta are required to describe records over which they are claiming privilege. The court held that litigants must describe the records over which they are claiming privilege in their affidavits of documents "to assist other parties in assessing the validity of the claimed privilege." Before this case, litigants in Alberta were not required to specifically describe privileged records and could describe them merely as privileged bundles, identifying the various types of privilege claimed. The court noted that this new approach (supported by the latest revision to the Alberta Rules of Court that came into effect in 2010) is consistent with the approaches being taken in other jurisdictions for the listing of privileged documents in affidavits of documents, including British Columbia, Ontario, Saskatchewan and the Federal Court.


There is a high-profile case underway across the border between Microsoft and the American government, which will be worth watching in 2015. At issue in Microsoft Search Warrant Order, No. 13-2814 is whether Microsoft should be forced to hand over data that is stored overseas. Microsoft stores messages sent and received by its users at its "datacentres". The physical location of a user's data depends primarily on the proximity of that user to the various datacentres. In December 2013, in connection with a narcotics investigation, a judge from the Southern District of New York issued a search warrant to Microsoft related to an email account stored at premises "owned, maintained controlled or operated by Microsoft Corporation." Microsoft objected to the warrant to the extent it sought information stored at its datacentre located in Dublin, Ireland. Microsoft's motion to quash the warrant was denied, a decision upheld by U.S. District Judge Loretta A. Preska. Microsoft has since appealed to the U.S. Court of Appeals for the Second Circuit. No hearing date has yet been set.

From an e-discovery perspective this case raises two main issues: (1) the complexity of data privacy laws around the world, and (2) questions surrounding the possession, custody and control of data. On the data privacy side, countries around the world have a wide variety of different data privacy laws. The variance between laws can make cross-border e-discovery difficult to navigate. Compliance with orders such as this one could mean violating privacy laws in the jurisdiction where the data is actually housed. This case also raises questions of possession, custody and control of documents. Microsoft's primary argument on the motion to quash the warrant was that the warrant sought information located outside the U.S. While the court's analysis on this point focused on U.S. law (primarily the Stored Communications Act), the court held that the heart of the issue was not where the data was actually stored but whose control it was under.


Cybersecurity made headline news repeatedly in 2014. There were several significant data breaches resulting from both external and internal threats. Criminal hackers infiltrated computer networks, stealing confidential corporate and personal data, unencrypted company laptops were lost and/or stolen, and rogue employees stole confidential personal information that was in their employer's custody. While the retail sector has been hit especially hard this year, cybersecurity threats can (and do) occur in any industry, e.g., financial, biotech, health care, energy, education, government and hospitality.

At the same time that cybersecurity risks are increasing, the amount of electronic information being created, received and sent is also increasing. From an e-discovery and information management perspective, having an information governance policy that includes specified and enforced records retention periods is a step that is needed to mitigate the risk and impact of a cyber-attack. Ensuring laptops, phones and all external devices (USB keys, hard drives, etc.) are encrypted is another vital step in managing cyber-risk.


In August 2014, the Competition Bureau published draft guidelines regarding the Production of Electronically Stored Information. The draft guidelines were prepared with input from the Canadian Bar Association and are designed to standardize the production process for voluntary and involuntary productions of electronic records to the Bureau.

The guidelines are focused on technical aspects related to production such as document format, indexing and document delivery. The guidelines recognize that as technology changes, the production process will need to be updated accordingly. In the guidelines, the Bureau encourages producing parties to engage in dialogue regarding the production of electronically stored information. The Bureau continues to require that producing parties identify the specifications in the request for which each document is responsive and to limit the scope of permissible de-duplication to civil matters only (i.e., for criminal matters, all duplicates must be provided).

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.

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