I OVERVIEW

The Canadian court system has two main arms: provincial and territorial, and federal.2 There are 10 provinces and three territories.3 The court system is roughly the same across Canada, except in Nunavut (one of the territories). Each province has three levels of courts – a provincial or territorial court, a superior court and an appellate court. Nunavut has a single trial court. The courts apply common law principles, except in the province of Quebec, where the courts apply the Quebec Civil Code.4 The federal arm consists of the Federal Court (which specialises in areas such as intellectual property, maritime law and federal provincial disputes), the Tax Court and the Federal Court of Appeal.5 The Supreme Court of Canada is Canada's final court of appeal.6

In all provinces but Quebec, the discovery process starts once pleadings are closed. At this point, the parties are required to list all documents that are relevant to the proceeding that are or have been in the parties' possession, power or control, even if the documents will not be used at trial. The test for relevance is broad, if a document contains any information that touches on the issues in the case, it is relevant.7 Once the lists are provided, the other parties can serve a notice to inspect the documents listed. If the other parties want a copy of the documents listed, they are entitled to obtain copies at their own expense. In practice, however, it is now more common for parties to exchange copies of all documents electronically.

The province of Quebec is governed by civil law. This stems from when Quebec was founded by France in 1663 as 'New France'. The application of civil law continued even once France ceded sovereignty over Quebec to Britain. Document discovery in Quebec is set out in the Quebec Code of Civil Procedure (the Code) and differs from the rules applicable in the other provinces of Canada (which follow common law). One notable difference between the two systems is that, in Quebec, there is no general duty to produce or list all relevant documents that have been in a party's possession, power or control, especially if they are not intended to be used at trial.8 For many years in Quebec, parties only had to produce documents they intended to rely on. In addition, parties had to write each other request letters setting out what documents they wanted disclosed.

In 2016, revisions were made to the Code in several areas, including document discovery. The Code now emphasises the obligation to preserve evidence,9 cooperate and communicate diligently. In terms of resource allocation, the Code is still more restrictive than common law, directing all parties to limit the discovery to only 'what is necessary to resolve the dispute'.10 The Code now provides detailed mechanisms for gathering and collecting evidence before judicial proceedings take place.11

II YEAR IN REVIEW

The following themes have been prevalent in Canadian case law over the past few years: proportionality; the use of technology in the discovery process; and the need for parties to cooperate in the discovery process.

i Proportionality

In 6Points Food Services Ltd v. Carl's Jr Restaurants LLC et al,12 the plaintiff produced 24,000 documents. The defendants brought a motion asking the court to order the plaintiff to produce fewer documents, complaining that the plaintiff was attempting to 'bludgeon' them into settlement by its massive and unorganised production.13 The defendants did a random sampling of the plaintiff's production and found irrelevant documents, including dental benefits and plumbing receipts. The plaintiff had also produced documents from over 1,000 different authors. The defendants wanted the court to order the plaintiff to reduce the number of relevant documents. The court, while recognising the principle of proportionality and its aim at reducing unruly and costly discovery, refused to do this, saying that it would 'land the parties back before me and unduly intrudes on 6Points [the plaintiff] disclosure decisions'.14 However, the court did find that the plaintiff did not do the work required to streamline its production and ordered it to categorise or index its production to make it more meaningful and manageable.

ii Technology

In Ontario, the Superior Court of Justice has affirmed that parties should consider the use of appropriate technology when formulating a discovery plan to reduce costs and time,15 and has implicitly endorsed the use of predictive coding.16 At the federal level, the Canadian Competition Bureau has encouraged the use of technology in discovery to assist in 'document-heavy cases where they are as or more effective than the usual method of document collection and review'.17

iii Cooperation

In Thompson v. Arcadia Labs Inc,18 the parties failed to agree on a protocol for the production and exchange of electronic documents. The court agreed with the defendant that there should have been far more engagement between counsel about the form and method of production of documents that were not in dispute. The court clearly stated that a party cannot use volume or the arduous nature of making proper and complete discovery to avoid fulfilling discovery obligations: 'Each party is obligated in good faith to produce the documents that tend to prove or disprove material allegations in dispute whether it helps or hurts the producing party. Jurisprudence establishes that a party cannot simply produce a banker's box or filing cabinet of paper and invite the other party to look through it. This is no different in the electronic world. Documents must be identified with precision.'19 The court ordered counsel to 'meet, confirm and co-operate to eliminate all technical issues which are impeding the efficient exchange of documents. They should try resolutely to eliminate, narrow or focus any disagreement regarding scope.'20

In Koolatron v. Synergex,21 the plaintiff brought a motion asking for, inter alia, production of additional documents to satisfy undertakings made during examinations.22 The defendants argued that the cost to produce the additional documents was disproportionate to the modest amount at stake.23 Justice Price stated the parties' failure to create a discovery plan, especially with respect to additional documents, impeded his ability to decide the issues.24 In his order, Justice Price dismissed the plaintiff's production request without prejudice to the plaintiff's right to bring another motion once the discovery plan was in place. Moreover, the defendants were ordered to cooperate with the plaintiff in forming a discovery plan, including detailing where the additional documents were located and estimating the costs of production.25 Although the plaintiff was largely successful in the motion (and thus would typically be entitled to costs), no costs were awarded because the failure to establish a discovery plan 'contributed to the necessity of the motion'.26

III CONTROL AND PRESERVATION

In most provinces in Canada,27 parties to a lawsuit must disclose all documents in their possession, control or power relating to any matter at issue in the action.28 Throughout Canadian jurisdictions 'document' is broadly defined, and includes data and information stored electronically.29 A document is deemed to be in a party's possession, power or control if that party is entitled to obtain the original document or a copy of it and the party seeking disclosure of the document is not entitled to do the same.30

The rules of court in some jurisdictions give specific guidance regarding the control of electronically stored information (ESI). In the province of Nova Scotia, ESI is considered to be in the control of a party if it is 'in a database accessed by the party to the exclusion of another party' or if the party controls the ESI even though they 'can access [it] only through a custodian who is not an employee or an officer of the party'.31 These kinds of ESI must be disclosed and produced as well as ESI contained on a computer or a storage medium actually or formerly possessed by a party.32

The province of Saskatchewan similarly delineates how ESI must be disclosed.33 The parties should typically produce electronic documents kept in their 'active data and any other information that was stored in a manner than anticipated future business use, and that still permits efficient searching and retrieval'.34 Generally, the parties are not obligated to produce documents that have been corrupted or deleted, as long as no agreement or order has been made to the contrary.35

The preservation duty for ESI arises as soon as litigation is reasonably anticipated, though when that exactly occurs depends on the facts of each case.36 The dynamic nature of many types of ESI, as well as the ease with which ESI may be overwritten, hidden, altered or completely deleted, highlights the importance for early meetings and agreement on preservation among parties. Otherwise, parties may have differing expectations of what type of ESI to preserve, especially where one party has a very specific request, such as internet browsing history on a personal computer.37

Once it is determined that a preservation right has been triggered, a legal hold should be put in place. It is also a best practice (although not required) to serve the opposing party with a legal hold providing clear instructions detailing the kinds of information that should be preserved.38 In exceptional cases, parties may obtain an Anton Piller order to immediately freeze or hand over ESI, if the evidence is essential to the other party and there is a genuine risk that it will be destroyed. A court may infer such a risk based on other dishonest conduct of a defendant as well as the ease with which certain types of evidence may be removed or disposed of, which may be particularly likely with ESI.39

Where a party has improperly failed to preserve relevant ESI, courts may respond pursuant to their rules regarding abuse of process or contempt. Courts have broad discretion to remedy such failures through awards of costs; refusing to allow a party to introduce evidence that was not properly preserved without leave; requiring a party who has destroyed or lost relevant evidence to bear the cost of recovering the evidence; or in cases of intentional destruction, by allowing an adverse inference that the destroyed document would have not been helpful to the destroying party's case.

The availability of a separate tort of spoliation in Canada remains uncertain. If this tort did exist, the courts have stated that there would be a high threshold for the finding of spoliation. It would require intentional destruction of relevant evidence for the purpose of influencing the outcome of the litigation.40

IV REQUESTS AND SCOPE

As noted in Section I, the document discovery process commences once pleadings are closed. At this point, the parties are required to list all documents that are relevant to the proceeding that are or have been in their possession, power or control, even if the documents will not be used at trial.

The test for relevance in most provinces is very broad: if a document contains any information that touches on the issues in the case, it is relevant. In Imperial Oil v. Jacques,41 the Supreme Court of Canada recognised that the concept of relevance is generally interpreted broadly at the exploratory stages of an action. Saskatchewan courts have affirmed that 'relevance is broader on discovery than at trial, and greater latitude is permitted at this stage of the proceedings than later'.42

Some provinces in Canada are putting in place rules that require the parties to meet and confer before document discovery takes place. In Ontario, the parties are required to enter into a discovery agreement before any discovery is commenced.43 The discovery agreement is to contain the following: the scope of document discovery; dates for the service of the list of documents; information on timing, costs (including who will pay for discovery) and how documents are to be produced; the names of people intended to be produced for oral discovery; and any other information intended to result in the expeditious and cost-effective completion of the discovery process.44

In British Columbia, a case-planning conference can either be requested by a party or administered by the court.45 If a case planning conference is requested or ordered, the parties must file case plan proposals with respect to the following steps: (1) discovery of records; (2) examinations for discovery; (3) dispute resolution processes; (4) expert witnesses; (5) list of witnesses; and (6) type of trial, estimated trial length and preferred trial dates.46 At a case-planning conference, the judge or master may make an order addressing any of these factors.47

Many of the provinces in Canada have also adopted the Sedona Canada Principles Addressing Electronic Discovery. In Ontario, the Rules of Civil Procedure state that in preparing the discovery plan, 'the parties shall consult and have regard' to the Sedona Canada Principles.48 One of those principles is proportionality. That principle has been adopted into the Ontario Rules in Rule 29.1, which is entitled 'Proportionality in Discovery'. Under this Rule, in determining if a party must produce a document, the court is to consider the following factors:

  1. whether the time required to produce the document would be unreasonable;
  2. whether the expense would be unreasonable;
  3. whether producing the document would cause the party undue prejudice;
  4. whether requiring the party to produce the document would interfere with the orderly progress of the action;
  5. whether the document is readily available to the party requesting it from another source; and
  6. whether such an order would result in the party having to produce an excessive volume of documents.49

In Saskatchewan, Rule 5.7 of the Queen's Bench Rules directs the reader to the Civil Practice Directive on E-Discovery Guidelines for the use of electronic documents.50 The Practice Directive states, 'parties in actions which involve e-discovery should consult and have regard' to the Sedona Canada Principles.51 This Practice Directive emphasises the importance of proportionality and elaborates on the required disclosure of electronic documents that have direct relevance.52

Although the British Columbia Supreme Court Civil Rules do not refer directly to the Sedona Canada Principles, Rule 1.3 includes proportionality as an essential element to achieving its objective of ensuring a 'just, speedy and inexpensive determination of a proceeding on its merits'.53

In Palmerston Grain, A Partnership et al v. Royal Bank of Canada,54 two motions regarding electronic discovery (e-discovery) were before the court. One issue to be decided was whether there was a discovery plan in place that satisfied the parties' obligations under the Ontario Rules of Civil Procedure. The court reviewed the relevant Rules and the Sedona Canada Principles. The court stated that 'parties are required to comply with the Sedona Principles and failing to do so is a breach of the rules.'55 The court held that the discovery plan did not constitute a discovery plan as it did not contain the content required by the Rules.

In City of Ottawa v. Suncor Energy Inc.,56 a motion regarding electronic discovery was before the court. A diesel fuel spill occurred at an articulated bus garage, which was located on property owned by the city of Ottawa. The city claimed damages against Suncor, the supplier of the diesel fuel, and Transport Jacques Auger Inc., which was responsible for delivering the fuel. Suncor and Auger started third-party proceedings against several companies involved in building the garage, including EllisDon Corporation. The parties involved did not establish a discovery plan before starting examinations for discovery.57 During the examinations for discovery, EllisDon gave undertakings to provide information relevant to the EdgeBuilder, the Project System and the Fuel Management System.58 Although EllisDon produced its database on a portable drive, Suncor and Auger experienced difficulties when accessing these records, particularly owing to the number of irrelevant records that had been included. Suncor and Auger brought a motion for EllisDon to answer the undertakings by taking further action to produce documents in a more accessible manner. The court held that EllisDon must answer the undertakings by removing any irrelevant documents from the portable drive, adding a unique identifier to each document on the portable drive and meeting to discuss a discovery plan.59 The court referred to the Sedona Canada Principles and the requirement to develop a discovery plan, stating that 'participation in discovery planning is one element of counsel's duty as an officer of the court. In fulfilling that aspect of their duty, counsel are required to apply the principles of proportionality while seeking maximum procedural efficiency.'60 Furthermore, the court stated that the 'party producing the documents must identify them with precision'.61

V REVIEW AND PRODUCTION

As noted above, the law in Canada is that parties must review and produce documents with precision.62 In most provinces, parties are also required to provide a privilege log, although in practice this does not happen in each case. The timing for production of documents is governed by the Rules of Court in each province. Despite these rules, parties often negotiate the timing for the production of documents between themselves.63

If a party believes that potentially relevant documents have not been disclosed or that privilege has been improperly asserted over relevant documents, the party may demand that the opposing party produce the documents or bring a motion to the court regarding same.64 Where the court determines that the affidavit of documents (AOD) is not complete or a claim of privilege has been improperly made, the court may order the party to provide a more extensive AOD, order cross-examination on the AOD or assess the documents to determine whether or not they must be produced. 65

The court may impose sanctions against a party for failing to comply with the rules of court regarding the disclosure or production of relevant documents. In the province of Ontario, if a party fails to disclose a document in its AOD, there is a presumption that the non-disclosing party may not use the document at trial.66 If the document is favourable to the non-disclosing party, then the party may only use the document with leave of the trial judge.67 If the document is unfavourable, then the court will have discretion to make it available to the non-disclosing party 'as is just'.68 In general, courts will admit undisclosed documents, albeit with costs to the non-disclosing party and in some instances an adjournment.69 Advertent concealment of relevant documents may lead to significant costs sanctions.70

The provinces of British Columbia, Manitoba, New Brunswick and Prince Edward Island have similar rules regarding the consequences of failure to comply. If a party fails to disclose a relevant document in its AOD, the rules of these provinces prescribe that the non-disclosing party may not use the document at trial unless the court orders otherwise.71 In Newfoundland and Saskatchewan, the court may go so far as to order that the defence be dismissed and judgment entered accordingly, or to dismiss the proceedings entirely.72

It is a well-established rule in Canada that parties cannot use documents received through the discovery process for a collateral or ulterior purpose.73 According to the Supreme Court of Canada, remedies for breach of this rule may include a stay or dismissal of the proceeding, striking a defence or even contempt of court proceedings.74

There is a small but growing number of cases that discuss the use of advanced analytical tools in e-discovery in Canada. In the Ontario case of L'Abbé v. Allen-Vanguard,75 the court set out some general principles when conducting discoveries that involve vast numbers of documents, particularly ESI. The court emphasised the need to harness technology and referenced predictive coding and auditing procedures as e-discovery solutions.76 In Bennett v. Bennett Environmental Inc,77 the court tacitly approved the use of predictive coding. The use of advanced analytics received its most explicit endorsement in the recent case of The Commissioner of Competition v. Live Nation Entertainment, Inc et al.78 This was a Competition Tribunal matter involving allegations of deceptive marketing practices.79 In their affidavits of documents, the respondents declared that in conducting searches for relevant documents using technology-assisted review (TAR), they had found no relevant documents in their possession, control or power.80 The Commissioner of Competition objected to the affidavits of documents on the basis that the search for documents was inadequate.81 The Competition Tribunal had no objections to the use of predictive coding; the problem related to how TAR was used in this instance.82 The Tribunal went on to explicitly approve the use of TAR: 'The Tribunal encourages the use of modern tools to assist in these document-heavy cases where they are as or more effective and efficient than the usual method of document collection and review.'83

The general rule in Canada is that the party in possession or control of the documents is to produce the documents at its expense. The courts have discretion to depart from this rule if fairness and justice so require, or if its application would financially prevent a party from presenting its case in the action.84 When a case is over, the court has the discretion to award costs. There is a loser-pays cost system for most types of cases (but not for class actions in some provinces). In this type of system, the losing party may be ordered to pay some or all of the winning party's legal costs and disbursements (including lawyer's fees). The basic rule is that costs on a partial indemnity scale follow the event. 'Partial indemnity' means that the successful party does not recoup all its costs but a portion of them.85 In Ontario, for example, a successful party often recovers 25 to 35 per cent of the actual costs incurred. These costs will include the costs of document discovery.86 The court has discretion to depart from this normal rule, however, and order 'substantial indemnity' costs, which is meant to more closely match the costs actually incurred by the successful party.87 Substantial indemnity orders are rare and generally only ordered if the unsuccessful party has engaged in misconduct or has acted in oppressive or vexatious ways.

As to the actual production of documents, the Sedona Canada Principles Addressing Electronic Discovery state that 'whenever possible, the production of ESI should be made in searchable electronic format.'88

VI PRIVACY ISSUES

Privacy in the private sector is subject to the Personal Information Protection and Electronic Documents Act (PIPEDA), which governs how private sector organisations handle personal information.89 The provinces of Alberta, British Columbia and Quebec have enacted private sector privacy statutes which have been deemed 'substantially similar' to PIPEDA. As such, PIPEDA does not apply to commercial organisations operating only within these jurisdictions other than federal works, undertakings or businesses (such as airlines, banks and telecommunications companies), which continue to be covered by PIPEDA.

Section 5(3) of PIPEDA sets out the 'appropriate purpose' principle of the legislation.90 It states: 'An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider appropriate in the circumstances.'91

This term, 'that a reasonable person would consider appropriate in the circumstances', is an overarching requirement of Canadian privacy law. Lawyers and organisations are bound by this obligation in the discovery and disclosure of ESI.92 As such, they must carefully assess the reasonableness and necessity of producing electronically stored personal information.93 Courts will take privacy considerations into account when deciding whether to order the production of electronic devices containing sensitive personal information. As a general rule, courts are reluctant to grant discovery requests that are too broad or that involve non-relevant private information.94 In the case of Desgagne v. Yuen et al, for example, the British Columbia Supreme Court cited privacy concerns in denying a request to produce a plaintiff's entire personal hard drive.95

Under PIPEDA's appropriate purpose principle, organisations are responsible for personal information in their custody or control, including personal information transferred to a third-party service provider for processing on the organisation's behalf. Personal information can be transferred to a service provider, without consent, where the transferring organisation uses contractual or other means to provide a comparable level of protection while the information is being processed by the service provider.96,97

PIPEDA does not distinguish between domestic and international transfers of data. If an organisation is transferring personal information to a service provider outside Canada, the Privacy Commissioner has stated that the organisation needs to make it clear to individuals that their information may be processed in a foreign country and may be accessible to law enforcement authorities of that jurisdiction.98 This notice must be given in clear and understandable language and ideally when the information is collected.99

The coming into force of the European Union's General Data Protection Regulation (GDPR) on 28 May 2018 has potentially far-reaching consequences for the discovery of ESI in Canada as well.100 Canadian-based organisations may be subject to the GDPR if they have an establishment in the European Union, process personal data in connection with the offering of goods or services to individuals in the European Union or monitor the behaviour of individuals in the European Union.101

VII OUTLOOK AND CONCLUSIONS

The law of e-discovery in Canada is growing and developing. The principles of proportionality and reasonableness will, hopefully, continue to be adopted by the courts. We also hope to see the courts continue to endorse the use of technology in the discovery process. This progress is essential given the proliferation of electronic documents in this digital age.


Footnotes

1 Anne Glover is a partner at Blake, Cassels & Graydon LLP. The author would like to thank the following contributors to this chapter: Melissa Feriozzo, Rebecca Kim, Alison Henderson and Anne Laverty.

2 See Canada's Court System, Can. Jud. Council, https://www.cjc-ccm.gc.ca/english/resource_en.asp?selMenu=resource_courtsystem_en.asp#ptc (last visited Aug. 24, 2018) [https://perma.cc/7G9V-Q738] (describing the jurisdiction of the provincial/territorial courts and the federal court).

3 Provinces and Territories, Gov't Can. (July 25, 2018), https://www.canada.ca/en/intergovernmental-affairs/services/provinces-territories.html (last visited Aug. 24, 2018) [https://perma.cc/4SPX-A58B].

4 See Peter Doody et al., Court System of Canada, Historica Can. https://www.thecanadianencyclopedia.ca/en/article/courts-of-law/ (last updated Feb. 28, 2018) [https://perma.cc/3KDH-2ZY7] (stating that the Civil Code is the relevant source of law in Quebec).

5 See Can. Jud. Council, supra, note 2; supra note 4 (stating that the federal court has jurisdiction over disputes with the federal government, maritime issues and intellectual property claims).

6 Doody et al., supra note 4.

7 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 30.02 (Can.) (stating that all relevant documents are within the scope of discovery); see also, e.g., Court Rules Act, B.C. Reg. 168/2009 Rule 7–1 (Can.); Court of Queen's Bench Rules, Man. Reg. 553/88 Rule 30.02(1) (Can.); N.B. Rules of Court,
Rule 31.02 (Can.).

8 Bradley J. Freedman, Discovery of Electronic Records Under Canadian Law – A Practical Guide, 18 Intell. Prop. J. 59, 63–64 (2004).

9 Code of Civil Procedure, C.Q.L.R., c C–25.01, s 20 (Can.).

10 ibid., at a 19 (Can.).

11 ibid., at a 253–57 (Can.).

12 6Points Food Services Ltd. v. Carl's Jr. Restaurants LLC et al., 2018 ONSC 7469 at para 1.

13 ibid.

14 ibid., at para 27.

15 Fincantieri Marine Systems North America Inc. v. Anmar Energy Ltd., 2015 ONSC 219 at para 27.

16 Bennett v. Bennett Environmental Inc., 2016 ONSC 503 at paras 41 to 44.

17 The Commissioner of Competition v. Live Nation Entertainment, Inc. et al., 2018 Comp Trib 17 at para 15.

18 Thompson v. Arcadia Labs Inc., 2016 ONSC 3745 at para 11.

19 ibid., at para 19.

20 ibid., at para 24.

21 Koolatron v. Synergex, 2017 ONSC 4245 at para 57.

22 ibid., at para 18.

23 ibid., at para 19.

24 ibid., at para 63.

25 ibid., at para 81.

26 ibid., at para 79.

27 This does not include the province of Quebec.

28 Rule 30.02, Ontario Rules of Civil Procedure, R.R.O 1990, Reg 194; Rule 7-1, [British Columbia] Supreme Court Civil Rules, BC Reg 168/2009; Rule 30.02, [Manitoba] Court of Queen's Bench Rules, Man Reg 553/88; Rule 31.02, [New Brunswick] Rules of Court of New Brunswick, NB Reg 82-73; Rule 219, [Northwest Territories] Rules of the Supreme Court of the Northwest Territories, NWT Reg R-010-96.

29 Reichmann v. Toronto Life Publishing Co. (1988), 30 C.P.C. (2d) 280 (Ont. H.C.) (where the definition of 'document' included a computer disc used to store information; if information could be derived from possession of the disc that was not provided by the product of the disc, there might be a gap in the operation of the rule); Rule 30.01(1), [Ontario] Rules of Civil Procedure, R.R.O 1990, Reg 194; [Manitoba] Rule 30.01, Court of Queen's Bench Rules, Man Reg 553/88; Rule 31.01, [New Brunswick] Rules of Court of New Brunswick, NB Reg 82-73; Rule 218, [Northwest Territories] Rules of the Supreme Court of the Northwest Territories, NWT Reg R-010-96.

30 Ivey v. Canada Trust Co. (1962), [1962] O.W.N. 62 (Ont. Master) (a party is not required to produce documents merely loaned to it); Continental Can Co. v. Bank of Montreal (1974), 3 O.R. (2d) 167 (Ont. H.C.) (the court may refuse to compel a party to produce a document where that party has no legal right to deal with it; the party will be required, however, to disclose the document's existence).

31 Rules 14.13 and 16.03, Nova Scotia Civil Procedure Rules, Royal Gaz Nov. 19, 2008
< http://canlii.ca/t/52m88>.

32 ibid.

33 Rule 5.7 of the Saskatchewan Queen's Bench Rules refers to the Civil Practice Directive No. 1 E-Discovery Guidelines 1 CIV-PD No. 1 regarding the use of electronic documents.

34 Civil Practice Directive No. 1 E-Discovery Guidelines 1 CIV-PD No. 1 at p. 47.

35 ibid.

36 Corbett v. Corbett, 2011 ONSC 1602 at para 27.

37 Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 5271.

38 ibid., at 25.

39 ibid., at 28; Noreast Electronics Co. Ltd. v. Danis, 2018 ONSC 879.

40 Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 5271; 2018 ONCA 283.

41 Imperial Oil v. Jacques, 2014 SCC 66.

42 Cominco Ltd. v. Phillips Cables Ltd. [1987] 3 W.W.R. 562 at para 11; the broad relevance test has been affirmed in cases such as Gulka Enterprises Ltd v. Bayer Cropscience Inc. 2009 SKQB 101 at para 4, 101239408 Saskatchewan Ltd. v. S-5 Holdings Ltd. 2016 SKQB 144 at paras 17 to 19 and Smith v. Dawgs Canada Distribution Ltd. 2012 SKQB 305 at paras 2 to 5.

43 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 29.1.

44 ibid.

45 British Columbia Supreme Court Civil Rules, B. C. Reg. 168/2009, Rule 5.1.

46 ibid.

47 British Columbia Supreme Court Civil Rules, B. C. Reg. 168/2009, Rule 5.3.

48 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 29.1.03(4).

49 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 29.2.03(1).

50 Saskatchewan Queen's Bench Rules, Rule 5.7.

51 Saskatchewan Civil Practice Directive No. 1 E-Discovery Guidelines 1 CIV-PD No. 1 at p. 46.

52 ibid., at pp. 46–47.

53 British Columbia Supreme Court Civil Rules, B. C. Reg. 168/2009, Rule 1.3(2).

54 Palmerston Grain, A Partnership et al v. Royal Bank of Canada, 2014 ONSC 5134.

55 2014 ONSC 5134 at para 45.

56 City of Ottawa v. Suncor Energy Inc., 2019 ONSC 1340.

57 2019 ONSC 1340 at para 6.

58 ibid., at para 17.

59 ibid., at para 41.

60 ibid., at para 29.

61 ibid., at para 31.

62 ibid., at para 31.

63 In Alberta, the plaintiff must provide the affidavit of records to the opposing party within three months of being served with the statement of defence, while the defendant must provide the affidavit of records within two months of receiving the plaintiff's affidavit of records (Alberta Rules of Court, Rule 5.5). In Saskatchewan, the plaintiff must serve the AOD within 30 days of receiving the statement of defence, whereas the defendant must serve the AOD within 30 days subsequent to this (Saskatchewan Queen's Bench Rules, Rule 5.5). The Nova Scotia Civil Procedure Rules specifically address the disclosure of electronic information, delineating that an 'affidavit disclosing electronic information' and all relevant electronic information that is not privileged must be disclosed within 45 days of the close of pleadings (Nova Scotia Civil Procedure Rules, Rule 16.07 and 16.09). In the province of British Columbia, all parties must produce a list of documents within 35 days of the close of pleadings (British Columbia Supreme Court Civil Rules, Rule 7.1(1)). In Manitoba, Newfoundland and Prince Edward Island, the parties to an action must similarly produce an AOD within 10 days of the close of pleadings (Manitoba Court of Queen's Bench Rules, Rule 30.03(1); Newfoundland Rules of the Supreme Court, Rule 32.01; Prince Edward Island Supreme Court Rules of Civil Procedure, Rule 30.03). In New Brunswick, a party may serve a notice requiring an AOD, upon receipt of which the party is required to provide an AOD within 30 days (New Brunswick Rules of Court, Rule 31.03).

64 Alberta Rules of Civil Procedure, Rule 30.06; British Columbia Supreme Court Civil Rules, Rule 7.1(10)-(17); Manitoba Court of Queen's Bench Rules, Rule 30.04; New Brunswick Rules of Court, Rule 31.04; Newfoundland Rules of the Supreme Court, Rule 32.06; Nova Scotia Civil Procedure Rules, Rule 14.09; Ontario Rules of Civil Procedure, Rule 30.04; Prince Edward Island Supreme Court Rules of Civil Procedure, Rule 30.04; Saskatchewan Queen's Bench Rules, Rule 5.11-5.12(1).

65 Alberta Rules of Civil Procedure, Rule 30.06; British Columbia Supreme Court Civil Rules, Rule 7.1(14); Manitoba Court of Queen's Bench Rules, Rule 30.06; New Brunswick Rules of Court, Rule 31.06; Newfoundland Rules of the Supreme Court, Rule 32.07; Nova Scotia Civil Procedure Rules, Rules 14.12 and 16.14; Ontario Rules of Civil Procedure, Rule 30.06; Prince Edward Island Supreme Court Rules of Civil Procedure, Rule 30.06; Saskatchewan Queen's Bench Rules, Rule 5.12.

66 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 30.08(1)(a).

67 ibid.

68 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 30.08(1)(b).

69 ibid., Rule 53.08(1)-(2).

70 See Todd Archibald, James Morton and Sam Sasso, Discovery in Canadian Common Law (Toronto: LexisNexis Canada Inc., 2017) at 67.

71 British Columbia Supreme Court Civil Rules, Rule 7.1(21); Manitoba Court of Queen's Bench Rules, Rule 30.08; New Brunswick Rules of Court, Rule 31.08; Prince Edward Island Supreme Court Rules of Civil Procedure, Rule 30.08.

72 Newfoundland and Labrador Rules of the Supreme Court, Rule 32.10; Saskatchewan Queen's Bench Rules, Rule 5.14(2); Saskatchewan Queen's Bench Rules, Rule 5.14(2).

73 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 30.1, codifying the Common Law 'deemed or implied undertaking' rule. See Archibald et al., supra note 70, at 162–165.

74 Juman v. Doucette, 2008 SCC 8 at para 23.

75 L'Abbé v. Allen-Vanguard, 2011 ONSC 7575.

76 ibid., at paras 21 and 23.

77 Bennett v. Bennett Environmental Inc., 2016 ONSC 503.

78 The Commissioner of Competition v. Live Nation Entertainment, Inc. et al, 2018 Comp Trib 17.

79 ibid., at para 2. The Competition Commissioner alleged that the respondents promoted the sale of tickets to the public at prices that are not in fact attainable.

80 ibid., at para 5.

81 The Commissioner had previously obtained documents from a respondent that did not end up in the applicable affidavits of documents, including documents relating to the Respondents' marketing practices, consumer behaviour, and impact of the respondents' advertising (ibid., at para 6).

82 ibid., at para 14.

83 ibid., at para 15.

84 See Veillette v. Piazza Family Tr., 2012 CanLII 5414, paras 18–20 (Can. Ont. Sup. Ct. J.) (asserting that the court has the discretion to depart from the general rule 'if its application would financially prevent a party from presenting their case in the action'); Ho v. O'Young-Lui, 2002 CanLII 6346, para 10 (Can. Ont. Sup. Ct. J.) ('[T]he court has a discretion to depart from [the general rule] where fairness and justice so require.').

85 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 1.03

86 A Comparative Discussion of Who Pays for Document Discovery in Australia, Canada, Guernsey (Channel Islands) and Singapore and its Effect on Access to Justice, Vanderbilt Law Review, Volume 71, Number 6, Nov. 2018, p. 2,158.

87 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 1.03.

88 The Sedona Canada Principles Addressing Electronic Discovery, Second Edition, Nov. 2015, p. 53.

89 The public sector is governed by the Privacy Act and legislation in each province. There are also health sector privacy laws, which are not discussed in this chapter.

90 Personal Information Protection and Electronic Documents Act, SC 2000, c 5, s 5(3).

91 ibid.

92 Office of the Privacy Commissioner of Canada, 'A Privacy Handbook for Lawyers: PIPEDA and Your Practice', online: OPC < https://www.priv.gc.ca/media/2012/gd_phl_201106_e.pdf> at 23 [OPC Privacy Handbook].

93 Susan Wortzman, ed, E-Discovery in Canada, 3rd ed (Toronto: LexisNexis Canada Inc., 2017) at 164.

94 See The Sedona Canada Principles Addressing Electronic Discovery, Second Edition, A Project of the Sedona Conference Working Group 7 (WG7), Nov. 2015 at 62.

95 Desgagne v. Yuen et al, 2006 BCSC 955 at para 40.

96 PIPEDA, Schedule 1, s 4.1.3 (Principle 1); see also OPC Privacy Handbook, supra note 92, at 23.

97 The Office of the Privacy Commissioner of Canada initiated a consultation in April 2019 entitled 'Consultation on Transborder Dataflows' whereby they propose to reverse this long held position and instead require consent for any transfer of personal information to a service provider for processing.

98 OPC Privacy Handbook, supra note 92 at 23.

99 Office of the Privacy Commissioner of Canada, 'Guidelines for Processing Personal Data Across Borders' (27 January 2009), online: Personal Information Transferred Across Borders < https://www.priv.gc.ca/en/privacy-topics/personal-information-transferred-across-borders/gl_dab_090127/>.

100 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1 [GDPR].

101 GDPR, article 3(2). The GDPR also applies if the data processing activities are related to monitoring the behaviour of individuals in the European Union.