As in the United States, eDiscovery in Canada continues to gain significant attention. Set out below are some of the important trends and developments in Canada from the past year.

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ONE | SANCTIONS

Canadian courts, like their U.S. counterparts, are imposing sanctions for failure to comply with eDiscovery obligations. Some examples of recent sanctions issued are:

  • In L'Abbé v. Allen-Vanguard Corp., the court ordered the defendant to pay costs as a sanction for breaching production obligations and failing to meet eDiscovery deadlines set out in court orders.
  • In Fuller Western Rubber Linings Ltd. v. Spence Corrosion Services Ltd., the court found the defendant in contempt of court for directing the destruction of electronic documents relevant to the litigation. The court ordered the defendants to pay the plaintiff's costs on a full-indemnity basis.
  • In Mansfield v. Ottawa (City), a successful plaintiff was denied costs of its motion for several reasons, the most important of which was the absence of a discovery plan.  

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TWO | COMPETITION BUREAU REVIEWS

In 2012, the Competition Bureau continued to issue supplementary information requests (SIRs) in connection with its review of certain mergers. SIRs are similar to "second requests" that the Department of Justice or the Federal Trade Commission can issue in the U.S. Complying with an SIR can involve the collection, processing, review and production of large amounts of electronic information. The Competition Bureau also has the power to issue voluntary information requests that, in some cases, can involve equally extensive eDiscovery and documentary production requirements. As of April 2012, the Competition Bureau had issued a total of 18 SIRs. For fiscal year (FY) 2011-2012, the Bureau issued eight SIRs, while five SIRs were issued in each of FY 2009-2010 and FY 2010-2011.

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THREE | SOCIAL MEDIA

The mainstream use of social media has forever changed communication. Over the last year in Canada, we have continued to see a number of motions for the production of material posted on social networking sites. Some recent examples include:

  • In Morabito v. DiLorenzo, the plaintiff refused to answer any questions about his Facebook or MySpace pages on the grounds they were private. The court found that the photographs of the plaintiff (taken before and after an accident) were relevant and ordered the plaintiff to re-attend examination for discovery (deposition) to answer questions about photographs of himself he posted to his Facebook or MySpace pages. If such photographs existed, he was ordered to produce them. The court found that the defendant had not established the relevance of the plaintiff's status updates or messages posted by others on his wall.
  • In Wesaquate v. Webb, the court held that nothing in the plaintiff's examination for discovery suggested that her Facebook site may contain relevant information. The court held that "the defendant is not entitled to go on a fishing expedition into the private posting of the plaintiff on her Facebook." However, the court did order the plaintiff to preserve all material on her Facebook account until further order of the court in the event some relevant information came to light in the future.
  • In Fric v. Gershman, the court held that some of the plaintiff's photographs, including those on her Facebook profile, ought to be disclosed. The plaintiff had been involved in an accident, and photographs showing the plaintiff in a sporting or recreational activity (during a certain time period) were found to be relevant. The plaintiff was permitted to edit the photographs to protect the privacy of other individuals in the photographs. The plaintiff was not required to include commentary from the Facebook website. The court held that if such commentary existed, the probative value of that information was outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties.

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FOUR | BRING YOUR OWN DEVICE (BYOD)

A major trend/issue that has been discussed this year in Canada is BYOD. This refers to employees who use their own devices at work (e.g., tablets, laptops, smartphones). The use of personal devices for work has implications for eDiscovery, such as who owns the data and how data can be collected without infringing on the privacy rights of the individual. Further, IT departments must ensure copies of the documents are kept for the required retention period, especially for devices that are not regularly backed up. Legal holds can also become complicated. We expect to see much more written on this topic in the coming year.

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FIVE | PREDICTIVE CODING

Courts in Canada have not yet made any rulings on predictive coding. However, this year, Canadian lawyers were closely watching case law develop in the U.S. – specifically Da Silva Moore v. Publicis Group, Kleen Products v. Packaging Corp. of America, and most recently EORHB, Inc. v. HOA Holdings, LLC. There is no doubt that Canadian counsel will be referring to these American cases when setting up predictive coding for document reviews.

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SIX | DISCOVERY PLANS

Another trend being seen in Canada is the courts insistence that counsel work together on eDiscovery matters – escpecially on files involving large numbers of documents. This need for collabaration is part of the Rules of Court or Practice Directions in some provinces. In Ontario, there is a requirement that the parties to an action agree to a discovery plan that must be continually updated. In Ontario, the failure to agree to a discovery plan means that the court may refuse to grant any relief or an award of costs on any discovery related motion. As a recent example of this, in Mansfield v. Ottawa (City), a successful plaintiff was denied costs of its motion for several reasons, the most important of which was the absence of a discovery plan.

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SEVEN | DISCOVERY OBLIGATIONS

In most provinces in Canada, the parties to an action are required to disclose all documents that are relevant to any of the issues raised in the action. This obligation extends to electronic documents. In Mansfield v. Ottawa (City), the plaintiff became concerned that the defendant had not produced all relevant documents in its possession and brought a motion for a further and better affidavit of documents. In the defendant's responding motion record, there was evidence about what electronic searches were conducted by the IT department for emails, but there was no evidence about the location of other electronic files that might exist (such as .pst files), whether archived files of emails were created or deleted by the key employees, or whether a search for hard copy, scanned or microfiche documents had been done. Nor was any evidence led about the cost, time or trouble that would be involved in taking any of these steps. The court ordered the defendant to take various steps to find out what information was available within 30 days. The steps to be taken included asking each key individual if they kept copies of relevant emails and, if so, what happened to them, and to determine if there were any backup tapes that might contain relevant documents.

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EIGHT | PRIVILEGE

A case released in late 2011 confirms that technology can be used to assist with the review of electronic documents for privilege. The leading case in Ontario prior to 2011 was the 2006 case of Air Canada v. WestJet Airlines Ltd., which held that while in some cases a detailed privilege review might be able to be done electronically, in the circumstances of that case, the court did not see how that detailed review could be done other than manually. Since 2006, electronic discovery has evolved significantly, as has the technology that is available to help counsel. In L'Abbé v. Allen-Vanguard Corp. (2011), the issue was whether the defendant had properly claimed privilege over 6,000 documents. The court noted that it was impossible that there were that many relevant and privileged documents. The court was very clear in what it would not do to help the parties determine legitimate claims for privilege when so many documents were alleged to be in issue. It would not (1) rule on documents based on descriptions or categories of documents, (2) order all documents be produced, or (3) inspect the documents or do an audit. The court ordered the parties to meet and narrow the issues. Once the issues were narrowed, the parties were to consider what process could be used to filter the documents for relevance and privilege. The court noted that "[t]echnological solutions should be considered as well as manual ones."

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NINE | SEDONA CANADA UPDATE

As in the U.S., the Sedona Canada Working Group (WG7) has just started the process of examining each of the Sedona Canada Principles in order to update and refresh the content. The last version of the Sedona Canada Principles was published in 2008.