This case involved several companies complaints regarding document production of the Attorney General of Canada (“AG”).  The problems were divided into nine different categories, with two making up the substantial analysis of this judgment.

The nine categories of problems related to the documentary production were: 1) Omission to produce obviously relevant documents; 2) Missing attachments/missing pages; 3) Undisclosed content of various information-technology media; 4) Documents of inadequate technical quality; 5) The use of document removal place holders; 6) Missing survey data; 7) Documents that might have been disposed of or destroyed; 8) Excessive errors in the coding of documents; and 9) Missing documents from governmental services.  As noted, the last two categories made up the substantive analysis of the judgment.  The parties were able to come to an agreement on the other seven categories.

Regarding the excessive errors in the coding of documents, the Companies’ complained of numerous errors in the produced records regarding missing information, such as authors, dates and other important information.  The court accepted the AG’s evidence that coding errors on up to 10% of documents is acceptable in this industry.  Further, no legal proof existed to demonstrate that the error rate in the AG’s documents was in excess of 10%.  The Court ordered the AG to produce the relevant documents through affidavits for each of the 16 production rounds in order to demonstrate that the error rate was in fact not in excess of 10%.

Regarding the missing documents from governmental services, the Companies alleged the AG did not search certain document repositories within the government to determine if they held relevant documents.  The Court found that the AG wilfully and unilaterally excluded any document or publication held in various libraries under the control of the Government of Canada, and advised no one of its decision.  However, the Court did acknowledge that every document in the possession of the Government of Canada need not be provided; only the relevant documents to these files must be produced.

The Court ultimately found that the AG was obligated to uphold its obligations under the previously agreed upon timetable for production between the parties in relation to all documents which were contemplated by the parties as relevant and accessible to the AG.  Particularly relevant was the fact that the AG had previously taken an unwavering view towards documentary production of the Companies.  It was also noteworthy that the agreement for production was made when the AG had full knowledge of the circumstances.  The court rejected the AG’s arguments that the volume of documents was too great, making the undertaking to produce disproportional and in violation of the general rules applicable to document discovery and held there was no justification for changing the AG’s position.  The AG was therefore held to the same standard regarding document production that it agreed to and vigorously imposed upon the Companies’ when it demanded similar production.