An Introduction to Document Discovery in Canada

An Introduction to Document Discovery in Canada

Jonathan L.S. Hodes

Miller Thomson LLP

Robson Court 840 Howe Street, Suite 1000 Vancouver, British Columbia V6Z 2M1 (604) 643-1256 [email protected]

Jonathan L.S. Hodes is a partner in the Vancouver office of Miller Thomson LLP. His practice focuses on insurance, product liability and environmental litigation, including a wide variety of general and product liability claims, environmental remediation claims, coverage disputes, and other matters. He has appeared in the courts of several Canadian provinces and Territories, including the Supreme Court of Canada, and has provided opinion evidence of Canadian product liability law in jurisdictional proceedings in the Superior Court of Washington State. Mr. Hodes is an SLDO past president (Canadian Defence Lawyers), a member of DRI International, and currently the International Legal Issues SLG Marketing Liaison for DRI’s Product Liability Committee.This paper was co-authored by the following members of Miller Thomson LLP: Jonathan Hodes and Fareeha Qaiser, British Columbia; Mark Alexander, Alberta; Heather MacMillan-Brown and Jordyn Allan (Articling student), Saskatchewan; Fiona Brown and Emma Nicholl, Ontario; and Mary Delli Quadri, Québec.

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I. Introduction: The Purpose of the Rules of Procedure .................................................................................5 II. Document Disclosure in Canada: A Brief History and the Need for Change ............................................6

A. A Word About E-Discovery ...................................................................................................................7B. Ethical Obligations Surrounding Document Production ....................................................................8

III. Document Production Requirements in British Columbia ........................................................................9A. The Obligation to Produce at First Instance .........................................................................................9B. Process Where Deficient Production is Alleged .................................................................................10C. Remedies for Non-Compliance ...........................................................................................................10D. Current Document Production Issues in British Columbia ..............................................................11

1. Social Media ..................................................................................................................................11 2. Surveillance ...................................................................................................................................12 3. Pre-Accident Medical Records .....................................................................................................12

IV. Document Production Requirements in Alberta ......................................................................................13A. Introduction and Guiding Principles ..................................................................................................13B. Purpose of This Part .............................................................................................................................13C. Document Production Process ............................................................................................................13D. Timing and Procedural Issues .............................................................................................................15E. Current Document Production Issues in Alberta ..............................................................................15

1. Medical Records ............................................................................................................................15 2. Surveillance ...................................................................................................................................16 3. Witness Statements .......................................................................................................................16 4. Production of Records from a Non-Party ...................................................................................17

V. Document Production Requirements in Saskatchewan ............................................................................17A. Introduction ..........................................................................................................................................17B. Proportionality .....................................................................................................................................18C. Enforcement of the Obligations to Disclose and Produce .................................................................18D. Current Document Production Issues in Saskatchewan ....................................................................19

1. Electronic Documents ..................................................................................................................19 2. Social Media ..................................................................................................................................19 3. Surveillance ...................................................................................................................................20 4. Bank Records.................................................................................................................................20

VI. Document Production Requirements in Ontario ......................................................................................20A. Proportionality .....................................................................................................................................21B. Current Document Production Issues in Ontario ..............................................................................22

1. Social Media ..................................................................................................................................22 2. Surveillance ...................................................................................................................................23 3. Witness Statements .......................................................................................................................23

VII. Document Production Requirements in Québec ......................................................................................24A. Proportionality .....................................................................................................................................25

Table of Contents

B. Expert Reports ......................................................................................................................................25C. Surveillance ...........................................................................................................................................26D. Social Media ..........................................................................................................................................26

VIII. Conclusion ....................................................................................................................................................27



I. Introduction: The Purpose of the Rules of ProcedureIn the common law jurisdictions in Canada, the rules of civil procedure typically contain a state-

ment of their overall purpose. These statements generally involve the assertion of three core principles: justice, timeliness and cost effectiveness. For example, Rule 1-3 of British Columbia’s Supreme Court Civil Rules states as follows:

The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

The rules in Alberta (Rule 1.2) and Saskatchewan (Rule 1-3) express the same sentiment in the fol-lowing terms:

The purpose of these rules is to provide a means by which claims can be justly resolved in or by a court process in a timely and cost effective way.

Likewise, in Ontario, Rule 1.04 provides as follows:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Thus, the superior courts of every common law province have long recognized the old adage that “justice delayed is justice denied”, as well as the principle that in a free and democratic society, the litigation process should be available to all, and not only to the wealthy. Unfortunately, in recent times, and particularly over the past 20 years, these seemingly basic goals have become increasingly difficult to achieve. There are many reasons for this, a significant one of which is the scope and cost of document production in a world that would be unrecognizable to the authors of the original rules.

As a result of these concerns, the rules governing the production of documents in most of Canada were reworked in the first decade of the 21st century, with a view to increasing access to justice, and furthering the longstanding objectives of the rules of civil procedure.

This paper is intended as a basic introduction to the general rules and some common document production issues, for the benefit of those unfamiliar with the Canadian legal system. It begins with a brief summary of the document production rules in the common law provinces prior to the reforms that occurred across the country between 2000 and 2010, and outlines the primary reasons for the changes. It will then pro-vide a summary of the rules in several jurisdictions in which the authors practice. Each section will also dis-cuss recent case law on document issues frequently seen in insurance and product liability cases, particularly those involving personal injury.

It should be noted that this paper is focused on the question of what must be produced, and addresses the mechanics of production only in a general way. Different jurisdictions have different processes, each of which could form the subject of its own presentation. For example, Ontario requires the parties to agree on a “discovery plan” 60 days after the close of pleadings or an attempt to obtain the evidence (see Rule 29.1), while British Columbia has no such rule, and simply imposes obligations on the parties individually.

Further, the rules in each jurisdiction contemplate production of documents within one or more of the “custody”, “power”, “possession” or “control” of parties. The meaning of each these terms can become con-tentious in a multitude of situations, for example, where documents are in the possession of related compa-nies, government departments, or any number of third parties. These concepts are touched on briefly, but the terms have been considered by the courts in multiple situations. When determining whether the production

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of certain classes of documents is required, a number of questions must be asked, and strategic considerations will also arise, for example, in cases where design, manufacturing, marketing and sales are conducted by dif-ferent legal entities.

Finally, the province of Québec is a civil law jurisdiction, with its own procedures which differ sub-stantially from those found in the rest of the country. The disclosure requirements in Québec are generally less broad and less onerous than in the common law provinces, and the historical background below relates pri-marily to the issues faced in common law Canada. Nevertheless, litigants in Québec are certainly not immune from document disclosure, and included in this paper is a section addressing the civil code requirements in that province.

This discussion is intended to address the question of whether documents that are known to exist fall within the production requirements. Needless to say, when facing the prospect of litigation in Canada, the specific rules should be consulted, and proper substantive and strategic advice should be sought.

II. Document Disclosure in Canada: A Brief History and the Need for ChangeFor over a century, the obligation to produce documents in most Canadian jurisdictions was gov-

erned by the rule in Compagnie Financière et Commerciale du Pacifique v. The Peruvian Guano Company (1882) 11 QBD 55 (CA), a decision of the UK Court of Appeal dating back to 1882. At the time, the UK rules, which were generally mirrored in English Canada, required production of documents within a party’s posses-sion or control, which related to “every matter in question” in the litigation. The following passage sets out the rule that was applied in Canadian courts for well over a century:

I think it obvious from the use of these terms [“every matter in question”] that the documents produced are not confined to those, which would be evidence either to prove or disprove any matter in question in the action; and the practice with regard to insurance cases shows, that the Court never thought that the person making the Affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.

The doctrine seems to me to go further than that to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matter in question in the action, which not only would be evidence upon any issue, but also which, if it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit to either advance his own case or to damage the case of his adver-sary. I have put in the word “either directly or indirectly”, because, as it seems to me, a document can probably be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry, which may have either of these two consequences…

The Peruvian Guano decision was written nearly 50 years before a wayward snail found its way into a bottle of ginger beer and ushered in a new era of liability for product manufacturers. Radio and telephone communications were in their infancy, and the suggestion that “mail” could somehow be “electronic” would likely have been met with confusion (or laughter). In those simpler times, written communications consisted primarily of paper documents, often sent by mail, with a copy possibly, but not necessarily, retained by the sender, and kept in a physical file. Each piece of paper could be found in only one location at a time, and once “deleted” by loss or destruction, could not be retrieved except through the memory of its authors or recipients.


Therefore, for decades, the limits of technology meant that the Peruvian Guano rule could be followed with reasonable effort, and at reasonable cost.

By the late 20th century, the ability of parties to create, retain and transfer documents had changed dra-matically. First, the advent of office and home computers allowed electronic copies of documents to be stored long after the printed copies had ceased to exist. Next, the proliferation of electronic communications allowed parties to communicate in writing multiple times per day, or indeed per hour, and led to a huge increase in the sheer volume of documents that might arguably lead to a “train of inquiry” under the Peruvian Guano rule. Later, with the introduction of smart phones and other devices, various means of communication, such as e-mail, text and instant messaging, and the number of devices on which documents could be found, such as personal computers, owned and non-owned servers, and portable devices, made full compliance with the rule, while still technically possible, difficult, time consuming, and in many cases, cost prohibitive. Finally, the addition of other forms of “documents” such as metadata to the mix could render the process overwhelming.

This increase in the amount of material required to be produced during document discovery led inevitably to an increase in the amount of time devoted to oral discovery, and not surprisingly, the number of days required for trials. For example, between 1996 and 2006, the average length of a civil trial in British Columbia approximately doubled, (see BC Justice Review Task Force, Proposed Rules of Civil Procedure of the British Columbia Supreme Court Questions and Answers, Sept.15, 2008, at 3, footnote 13).

According to a 2006 report of the BC Civil Justice Reform Working Group, “lawyers consistently report that the quantity of documents required to be disclosed in today’s litigation has increased significantly and is a major contributor to increasing cost and delay for the parties” (Effective and Affordable Civil Justice, Report of the Civil Justice Reform Working Group to the Justice Review Task Force, November 2006 at 26).

The result of this was an overall increase in the cost of litigation to the point where, according to Chief Justice of Canada Beverley McLachlin:

The Canadian legal system is sometimes said to be open to two groups, the wealthy and corpora-tions at one end of the spectrum, and those charged with serious crimes at the other (Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, delivered to the Empire Club of Canada, Toronto, Ontario on March 8, 2007).

As a result of these concerns, the rules committees in the various jurisdictions began to seriously study the challenges of achieving access to justice for all litigants, with specific emphasis on possible reforms to the rules of procedure to address those challenges. A significant result of these efforts was that most juris-dictions reformed their rules to introduce the concept of “proportionality” in relation to the value of a claim, the importance of the issues and the complexity of the proceeding.

Whether the new proportionality rules have achieved their goals is a matter of debate, given that the question of what is proportional can be as contentious as the question of what is producible. However, there can be no doubt that the effect of rules reform on discovery practice has been significant.

A. A Word About E-DiscoveryNo discussion of document production would be complete without at least mentioning the subject

of e-discovery. While technology has advanced to the point that virtually every case, large or small, in virtu-ally any area of law, will involve the collection and production of electronic documents in some form, there are many cases, both large and small, which involve factual issues (e.g. the deliberate altering or backdating of documents, or the misuse of office computers) that require a consideration of what “documents” might be available and producible, beyond the standard categories. Such less obvious forms of data can include browser


histories, computer code and metadata. Archived documents, as well as deleted documents still partially con-tained on hard drives can also be relevant.

The courts in some jurisdictions have issued practice directives, and have also recognized the Sedona Canada Principles as a valuable guidelines for litigants. In British Columbia, see, for example, Liquor barn Income Fund v. Mather, 2011 BCSC 618. In Ontario, the Sedona Canada Principles are expressly referenced in the Rules of Civil Procedure, at Rule 29.1(4) in the context of discovery planning.

The issue of e-discovery is not as advanced in Canada as it is in the United States, but still has become the subject of volumes of material on which entire presentations are based. As noted above, this presentation is focused on the substantive requirements of document discovery rather than process. Therefore, it is suffi-cient to note that electronically stored information is producible, subject to the same principles of relevance and proportionality as other documents. Indeed the Sedona Canada Principles include their own statements regarding proportionality, and therefore are not inconsistent with the current principles governing document production.

B. Ethical Obligations Surrounding Document ProductionIn Canada, the rules of document discovery generally require the parties themselves to identify and

disclose their own documents. In the common law provinces, this obligation is ongoing and continues as new documents are created or discovered. As a result, certain ethical considerations arise for counsel.

Certain jurisdictions, including Ontario and Alberta, require parties to litigation to swear an “Affida-vit of Documents” or “Affidavit of Records” as part of the document discovery process. Others, such as British Columbia, require only a “List of Documents” to be delivered. The difference in the two processes is signifi-cant, in that only the jurisdictions requiring an affidavit require the litigant to confirm under oath that all pro-ducible documents have been listed.

Nevertheless, under either process, the courts have clearly placed the obligation to fully comply with the document production rules on counsel who generally have a greater understanding of the test for rel-evance than an ordinary litigant, and as officers of the court, have an overriding obligation to ensure that the courts are not misled. In British Columbia, it has been held that “the lawyer has the responsibility to police the conscience of [the] client in this area.” See, for example, Boxer v. Reesor (1983) 43 BCLR 352 (SC), and Henriques v. Spraggs, 2008 BCCA 282 in British Columbia, and Sudbury Downs v Ontario Harness Horse Assn, 2003 CarswellOnt 3676 in Ontario. It has been suggested that where the lawyer is unable to satisfy him or her-self that the client has disclosed all that has to be disclosed, the lawyer must withdraw from the action. There-fore, when choosing which documents to produce, these requirements must also be kept in mind.

Another ethical concern arises from the concept of the “implied undertaking of confidentiality” which applies to documents received by parties in the course of litigation. In simple terms, no party may use any document received in the course of litigation for any purpose outside the litigation. In British Columbia, the List of Documents form was amended in 2016 to expressly remind litigants of the undertaking, as follows:

Implied undertaking to the court

Documents produced are not to be used by the other party(ies) except for the purposes of this litigation unless and until the scope of the undertaking is varied by a court order or other judi-cial order, consent or statutory override or a situation of immediate and serious danger emerges. This implied undertaking continues despite settlement or completion of the litigation.

Lawyers who breach this undertaking can be subjected to professional discipline as well as civil lia-bility, and parties who do so can be liable for the consequences of their breaches, including punitive damages.


As a result, confidentiality orders of the type often seen in US litigation are rare, as the implied undertaking generally makes them unnecessary (though they do occur in limited circumstances). It is therefore important that non-Canadian parties to litigation in Canada keep these obligations in mind when handling documents received through discovery.

III. Document Production Requirements in British Columbia

A. The Obligation to Produce at First InstanceIn British Columbia, the requirements for document production are governed by the Supreme Court

Civil Rules. Rule 7-1 relates to discovery and inspection of documents and sets out the requirements sur-rounding document discovery.

The general rule is that documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, must be listed on a list of documents, and the production must be within thirty-five days after the end of the pleading period (Rule 7-1(a)(i)).

The concept of “possession or control” has been considered by the courts. In general terms, “posses-sion” of a document requires more than mere access, while “control” denotes an enforceable right to obtain the document. The concept of “power” over documents is broader than “control”, which requires only that the litigant has access to the documents (see, for example, Henry v. British Columbia, 2014 BCSC 1018).

The requirement that the disclosure relate to a material fact limits the breadth of what is consid-ered relevant. The definition of materiality was discussed in Biehl v. Strang, 2010 BCSC 1391, where the court adopted the following definition:

§2.50… The concept of materiality, however, requires the court to focus on the material issues in dispute in order to determine if the proffered evidence advances the party’s case.

At para. 17 in Biehl, the court adopted the following definition of relevance:

§2.35 A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s A Digest of the Law of Evidence, where it is defined to mean:

... any two facts to which it is applied are so related to each other that according to the com-mon course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:

For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the lat-ter.

The concept of “material facts” requires an analysis by counsel of the contents of the documents. Needless to say, this area is filled with the potential for disagreement among parties.

In addition to documents which prove or disprove material facts, all other documents to which the party intends to refer at trial must also be listed on the party’s list of documents (Rule 7-1(a)(ii)). The man-dated form for a party’s list of documents contains the following subheadings:

Part 1: documents that are or have been in the listing party’s possession or control and that could be used by any party at trial to prove or disprove a material fact;


Part 2: other documents to which the listing party intends to refer at trial;

Part 3: documents that relate to a matter in question in the action; and

Part 4: documents for which privilege from production is claimed.

If, after the list of documents has been served, there are additional documents that come to the atten-tion of the party or come into the possession or control of that party, the party must promptly amend the list of documents and serve the amended list of documents on the other parties of record (Rule 7-1(9)).

If it is claimed that a document is privileged from production, the claim must be made in the list of documents, under Part 4, with a statement of the grounds for the privilege (Rule 7-1(5)).

B. Process Where Deficient Production is AllegedIf a party who has received a list of documents believes that the list omits documents or classes of

documents that should have been disclosed under Rule 7-1, the party may, by written demand require the party to amend the list of documents and produce those documents (Rule 7-1(10)).

In addition, in a demand for discovery of additional documents, the party may request documents which relate to any or all matters in question in the action, provided that specific justification is enumerated in the demand (Rule 7-1(11)). A Rule 7-1(11) demand allows the parties to effectively invoke the rule in Peru-vian Guano, provided that there is a coherent basis for doing so. The court’s decision to order such documents will include a consideration of the proportionality factors. It should be noted that such a demand may be made only for documents that are within the party’s possession, power, or control (note the inclusion of docu-ments within a party’s “power” in addition to possession and control, which is not contained in the rule appli-cable at first instance).

The party who receives the demand has thirty-five days to respond (Rule 7-1(12)). The plaintiff ’s rejection of the request must contain a basis for rejection, and be made with reasonable specificity: Przybysz v. Crowe, 2011 BCSC 731, at paras. 30 and 31.

C. Remedies for Non-ComplianceIf a party who receives a demand for further document production does not comply with the speci-

fied timeline, the demanding party may apply for a court order requiring the listing party to comply with the demand (Rule 7-1(13)).

Parties who ignore the processes under the Rules by failing to first make a demand, run the risk of their motion for further production being adjourned or dismissed: Balderston v. Aspin, 2011 BCSC 730 at para. 26.

Where documents are not properly disclosed, parties may be prohibited from using any documents at trial that were not listed on the list of documents (Rule 7-1(21)). While the court has discretion to allow non-disclosed documents to be used at trial for the purpose of examination or cross-examination, the court is not permitted to exercise its discretion if an adequate excuse for non-disclosure is not provided. As such, the party who wishes to tender previously undisclosed evidence bears the burden of persuasion.

This issue was recently canvassed in the decision of Walker v. John Doe, 2012 BCSC 1091, where the court outlined four factors applicable to the exercise of discretion to admit a previously undisclosed document at trial, as follows:

i. whether a party would suffer prejudice if the use of the document is permitted;

ii. whether there is a reasonable explanation for the failure to disclose the document in questions;


iii. whether excluding the use of the document would prevent the determination of the relevant issue on its merits; and

iv. whether, in the circumstances of the case, the ends of justice require that the use of the docu-ment be permitted.

Under the new rules, British Columbia has essentially a two-tiered system for document produc-tion. The initial document discovery is relatively narrow, but further document discovery can be triggered on demand for broader classes of documents. The initial disclosure requires materiality; however, additional dis-closure may be ordered (subject to proportionality concerns) based on the Peruvian Guano rule of whether the document may lead to a train of inquiry which allows a party to advance a case or damage the case of an adversary: see, for example, Global Pacific Concepts Inc. v. Owners of Strata Plan NW 141, 2011 BCSC 1752.

D. Current Document Production Issues in British Columbia

1. Social MediaAs is the case in every jurisdiction, the courts in British Columbia in the last few years have wit-

nessed a staggering rise of social media evidence, especially Facebook images, videos, and commentaries. Most parties generally take the initial view that social media evidence provides at best “point in time” evi-dence, which is often created by the party to show themselves in the most positive light. Thus a Facebook posting of a personal injury claimant performing a certain activity will usually be met with the argument that the photo does not show the plaintiff suffering in pain for several days or weeks following the activity, and is therefore not “material”. As a result, Facebook evidence is rarely disclosed in the first instance, and where a party seeks disclosure, a demand for production must be made, with a motion to follow if necessary. Such motions, however, have had mixed results.

For example, in Fric v. Gershman, 2012 BCSC 614, defence counsel brought a motion for access to a private Facebook account, including comments about the photographs depicted on Facebook. The court held that while some of the production was too broad, certain relevant photos had to be disclosed. The court focused, in part, on proportionality and ensuring fair trial on the merits, and held that the defendant should be given a fair opportunity to discover the plaintiff on all aspects of her physical functioning.

However, the court stated that the discovery of social media does not necessarily entitle the party to use that evidence at trial, and the plaintiff can argue inadmissibility of such evidence. The court further stated that the plaintiff was not expected to include commentary from the Facebook photographs as the probative value of the information was outweighed by protecting the private thoughts of the plaintiff and third parties.

In Cui v. Metcalfe, 2015 BCSC 1195, the defendants sought production of all photographs and videos of the plaintiff participating in various forms of dancing, and other recreational activities. The court consid-ered proportionality and ordered production of photographs from the plaintiff ’s Facebook account, stored on her phone or computer, even though it required the plaintiff to review approximately 4,600 photographs.

In Wilder v. Munro, 2015 BCSC 1983, the defendants’ motion for production of photographs and vid-eos from the plaintiff ’s social media accounts or platforms was denied on the basis that the disclosure sought was overly broad, disproportionate to the issues to be determined at trial, and invasive to the privacy of the plaintiff and the third parties. In contrast, other cases have also grappled with the privacy issues with respect to third parties but these privacy issues were ameliorated by allowing the photographs to be redacted.

The usefulness of such production may be limited, and trial courts tend to decide the weight to be given to such documents on a case-by-case basis depending on the plaintiff ’s other disclosure and oral dis-covery evidence. In Guthrie v. Narayan, 2012 BCSC 734, the court did not place much weight on social media


photographs because they were “staged, at a party, and taken on holidays”. The court held that these “pictures are of limited usefulness as the plaintiff is seeking compensation for what she has lost, not what she can still do”. See also Dakin v. Roth, 2013 BCSC 8.

Conversely, in Brennan v. Colindres, 2016 BCSC 1026, the court awarded the plaintiff moderate non-pecuniary damages due to credibility issues in light of the evidence of the plaintiff ’s abilities provided by Face-book photographs.

These decisions demonstrate that bringing a motion for production of social media photographs/videos may be of some value in certain cases but not all; it is a strategic decision that counsel must turn their mind to as litigation progresses. As such, counsel should give serious consideration as to the need for these photographs/videos and whether such evidence will be useful at trial, especially since most plaintiffs may explain it away as nothing more than a “snapshot in time”. Ironically, the existence of more photos, rather than less, might make production more likely to be ordered, as a greater volume of posts and photos make it more likely that the evidence will be probative at trial.

2. SurveillanceIf video surveillance is obtained of a party, the report and corresponding video must be listed in Part

4 of the list of documents if it was obtained after the commencement of litigation, or for the dominant pur-pose of assisting in the defence of litigation at a time when litigation was in the reasonable contemplation of the parties. However, if it was obtained prior to litigation and not in contemplation of litigation, then it is likely that the video/report will have to be listed in the non-privileged parts of the list of documents.

In particular, video surveillance falls under Rule 12-5(10), which states that “unless the court oth-erwise orders or the parties of record otherwise agree, no plan, photograph or object may be received in evi-dence at the trial of an action unless, at least 7 days before the start of the trial, the parties of record have been given an opportunity to inspect it.” This rule specifically deals with privileged documents and requires counsel to determine whether privilege associated with the document should be waived in advance of trial.

3. Pre-Accident Medical RecordsIn personal injury litigation, absent any ongoing issues that were pre-existing, many plaintiff coun-

sel refuse to produce the plaintiffs’ pre-accident records at all, or alternatively, only produce records for a few years pre-dating the accident. Under the old rule, these documents could generally be obtained based on boil-erplate response pleadings that alleged causation by pre-existing conditions. Since the new rules came into force, production of pre-accident records will only be ordered if party can meet the evidentiary burden under Rule 7-1(11). Further, the pleadings alone may not be sufficient for production of the plaintiff ’s pre-accident records.

Under the more recent cases, in order to obtain an order for production of pre-accident medical rec-ords, a defendant must establish some “air of reality” to the plea of pre-existing injury. There must be some-thing either by way of evidence or by way of specific pleadings, which raises the plaintiff ’s pre-injury state of health as an issue. See Balderston v. Aspin, 2011 BCSC 730, at para. 39; Marsh v. Parker, 2000 BCSC 1605, at para. 9; and Edwards v. Granzer, 2012 BCSC 138, at para. 51.

In Przybysz v. Crowe, 2011 BCSC 731, the court held that the defendants did not meet the eviden-tiary burden under Rule 7-1(11) in that the plea of pre-existing injury in the defendant’s response to civil claim appeared to be boilerplate or pro forma. Further, the defendants were unable to demonstrate a connec-tion between the plaintiff ’s pre-existing and accident related complains beyond a mere possibility. The court stated that at the stage of the litigation, “it is proportional and reasonable that issues of a pre-existing injury


be explored at an examination for discovery before the cost (however minimal) is incurred in production of a potentially unnecessary or irrelevant set of documents”. As such, cases following this decision have disallowed production of even pre-accident Medical Services Plan (“MSP”) printouts (which contain simply a list of med-ical visits in the province and are available to the patient free of charge) until discovery evidence is adduced to demonstrate at least the plaintiff ’s lack of recollection of pre-existing symptoms.

In Kaladjian v. Jose, 2012 BCSC 357, the court discussed a plaintiff ’s obligation to produce docu-ments pursuant to Rule 7-1. The application pre-dated an examination for discovery. The court stated that compliance with this obligation “can be pursued at examination for discovery, and if evidence is obtained that can support an application for production of [pre-accident] MSP records, such an application can then be made”. The court noted that a plaintiff ’s MSP printout remains “private unless it is established to the satisfac-tion of the court that an invasion of that privacy is necessary”. The court noted again that pro forma pleading of a pre-existing condition is not sufficient without more to require disclosure of pre-accident MSP records.

IV. Document Production Requirements in Alberta

A. Introduction and Guiding PrinciplesAlberta’s document production requirements are governed by the Alberta Rules of Court, and specifi-

cally, Part 5: Disclosure of Information.

The Rules of Court were substantially overhauled in 2010, following a multiyear effort lead by the Alberta Law Reform Institute aimed at maximizing their clarity, usability and effectiveness, and to contribute to a fair, accessible, timely and cost effective civil justice system (see: https://albertacourts.ca/court-of-appeal/rules-of-court-committee/new-alberta-rules-of-court). Like most provinces, Alberta’s current Rules of Court reflect the culture shift that recognizes proportionality as a necessary component of the fair and just resolu-tion of disputes (Hryniak v. Mauldin, 2014 SCC 7):

Rule 5.1 of the Rules of Court explicitly codifies the need to interpret Alberta’s Rules, including those relating to disclosure of information, to promote access to justice, prevent delays, and encourage early disclo-sure and settlement:

B. Purpose of This Part5.1(1) Within the context of rule 1.2 [Purpose and intention of these rules], the purpose of this Part is

(a) to obtain evidence that will be relied upon in the action,

(b) to narrow and define the issues between the parties,

(c) to encourage early disclosure of facts and records,

(d) to facilitate evaluation of the parties’ positions and, if possible, resolution of issues in dispute, and

(e) to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the cost of them.

C. Document Production ProcessDocument disclosure in Alberta occurs by way of an affidavit of records. Pursuant to Rule 5.6(1)(b),

an affidavit of records is a standard form document which must disclose all records that:

(i) are relevant and material to the issues in the action, and


(ii) are or have been under the party’s control.

The test for relevance is set out in Rule 5.2:

5.2(1) For the purposes of this Part, a question, record or information is relevant and material only if the answers to the question, or the record or information, could reasonably be expected

(a) to significantly help determine one or more of the issues raised in the pleadings, or

(b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raises in the pleadings.

The Alberta Court of Appeal has recently endorsed the following approach to resolving questions of relevance and materiality (Dow Chemical Canada ULC v. Nova Chemicals Corporation, 2014 ABCA 244):

In determining whether a document is relevant and material, the starting point is the pleadings. The pleadings define the issues, and relevance must be determined with respect to the issues. The pleadings are also relevant with respect to the issue of materiality. However, with respect to materiality, one must also have regard to the issues in question.

The idea that relevance is determined by the pleadings, while materiality is more a matter of proof can be seen by the wording of the rule. The rule talks about records that can “help determine” an issue, or that can “ascertain evidence” that will determine the issue. These are words of proof, and materiality must be de-termined with that in mind (Weatherill (Estate) v. Weatherill, 2003 ABQB 69).

Any relevant and material records identified must then be organized into the following 3 categories:

1. Relevant and material records under that party’s control for which there is no objection to pro-duce;

2. Relevant and material records under that party’s control for which there is an objection to pro-duce for one or more of the following reasons:

(i) The records are without prejudice communications;

(ii) The records are communications and copies of communications between solicitor and cli-ent;

(iii) The records constitute solicitor’s work produce, including all interoffice memoranda, cor-respondence, notes, memoranda and other records prepared by the solicitors or their assis-tants;

(iv) The records were made or created for the dominant purpose of litigation, existing or antici-pated;

(v) The records fall under common-interest privilege;

(vi) The records fall into two or more of the categories described above; and

3. Relevant and material records that were previously under that party’s control.

A blanket objection to produce relevant and material records is improper and strict compliance with the rules is required. Any records for which there is an objection to produce must be properly categorized so that the type of objection to production is identified, and to number them so that it is clear whether or not the existence of a given record has been disclosed (see Rhino Legal Finance Inc. v. Salmon, 2012 ABQB 169).

Rule 5.11 provides a mechanism for a party to seek production of a record if the court is satisfied that either, (a) a relevant and material record under the control of a party has been omitted from an affidavit of records, or (b) a claim of privilege has been incorrectly or improperly made in respect of a record.


D. Timing and Procedural IssuesRule 5.5 requires that a plaintiff serve an affidavit of records within 3 months after the date it is

served with a statement of defence, or the first statement of defence if more than 1 is served. Defendants will then have 2 months from being served with the plaintiff ’s affidavit of records to serve their own affidavits of records. Any third party defendants who have filed a statement of defence must, within 3 months of that fil-ing, serve an affidavit of records upon each of the other parties.

While counsel will frequently provide an unsworn affidavit of records in anticipation that a sworn copy will be provided at a later date, typically at questioning (Alberta’s oral discovery procedure), service of an unsworn affidavit of records does not satisfy the disclosure obligations under Part 5 and that party will remain exposed to any sanctions arising from the failure to comply with the timelines mandated by the Rules (see Kahlon v Cheecham, 2015 ABQB 203).

Although the rules are silent on the issue of the ability to cross-examine the deponent of an affida-vit of records, recent case law suggests that such an examination may occur as of right, without the necessity of obtaining leave of the court (see Penn West Petroluem Ltd. v. Devon Canada Corporation, 2016 ABQB 623). Recognition of this right appears motivated by a purposive interpretation of the rules to facilitate the timely and cost-effective resolution of litigation, and the benefits gained from allowing parties to efficiently prepare for and conduct discoveries after ensuring all relevant and material documents have been produced.

As is the case with most other jurisdictions, litigants in Alberta are subject to a continuing duty to give disclosure of records. Pursuant to Rule 5.10, after an affidavit of records been served, parties are required to give prompt notice of any further relevant and material records which are created, discovered, or come into his or her possession. Prior to trial, any such records must be identified and disclosed in a supplemental affi-davit of records.

Finally, Rule 5.13 provides a mechanism for litigants to obtain records from a non-party by way of court application with notice to the persons affected by the order. Alberta courts will order production of rec-ords from a non-party if it is demonstrated that:

• The record is under the control of that person,

• There is reason to believe that the record is relevant and material, and

• The person who has control of the record might be required to produce it at trial.

E. Current Document Production Issues in AlbertaRelative to other Canadian jurisdictions, there is a lacunae of Alberta case law dealing with produc-

tion issues relating to certain categories of records, particularly with respect to social media platforms such as Facebook and Instagram. Nonetheless, the cases below offer some insight into how Alberta courts have dealt with issues relating to proportionality, relevance and materiality of document production and record requests, as well as the propriety of claims of privilege over certain classes of documents.

1. Medical RecordsIn Rodriguez v. Woloszyn, 2013 ABQB 269 (CanLII), the court considered a defendant’s application

for production of materials that were provided by a plaintiff to a certified medical examiner under Alberta’s Minor Injury Regulation. The court concluded that the opinion of the medical examiner was “prima facie evi-dence that the claimant’s injury is or is not a minor injury, as the case may be”, which was an important deter-mination in the litigation process. Consequently, the certified examiner’s assessment and the records received attracted a duty of fairness, requiring not only the certified examiner to ensure that each party had access to


the material available to him, but also placing an obligation upon the plaintiff ’s counsel to provide any materi-als given to the certified examiner to the defendant’s counsel.

2. SurveillanceO’Scolai v. Antrajenda, 2008 ABQB 77 (CanLII) concerned an application by the plaintiff to require

the defendants provide them with the complete file of the private investigator retained to surveil the plaintiff. The defendants had sought to tender the surveillance footage as evidence in the trial and proposed to call the private investigator as a witness. The plaintiff argued that the defendants had implicitly waived litigation privi-lege over the investigator’s file by seeking to enter the videotape footage into evidence. The court concluded that any additional surveillance had been performed by the investigator, as well as any still photographs obtained should be disclosed, consistent with the other surveillance footage on file, so as to avoid any “cherry picking” of favorable evidence. However, the court rejected the plaintiff ’s argument that the remainder of the investigator’s file materials were relevant or producible and declined to order their production.

3. Witness StatementsThe Provincial Court decision of Security National Insurance Corporation v. Edmonton Police Service,

2013 ABPC 188 (CanLII) provides a useful discussion of litigation privilege in relation to statements obtained by an insurer. The Edmonton Police Service had sought an order requiring Security National to produce a statement given by its insured, who faced several charges following a fatal hit and run collision with a pedes-trian. When Security National had first learned of the accident, it was only informed of a “potential prop-erty damage claim,” and took no steps to investigate or assess the potential liability of the insured in relation to the accident. Approximately seven weeks after the accident, the deceased’s sister contacted the insurer to advise of the fatality, which led to an accident benefits file being opened and an independent adjusting firm being retained to, among other things, obtain a written statement from the insured. In support of its claim of litigation privilege, Security National argued that litigation was contemplated at the time the statement was obtained, noting in particular that the accident involved a fatality and it was very rare for such an inci-dent to not ultimately result in litigation. While the court accepted Security National’s assertion that one of the purposes for obtaining the statement was to prepare for litigation, it was held that it had not, on a bal-ance of probabilities, established that the dominant purpose of obtaining the statement was for prosecuting or defending litigation. Accordingly, Security National’s application was dismissed and it was required to pro-duce a copy of the statement to the Edmonton Police Service.

In Alberta v Suncor Energy, 2016 ABQB 264, the Government of Alberta sought an order compel-ling Suncor to provide information and records related to a workplace fatality after an employee was killed as a result of injuries sustained in an electrical contact. Suncor resisted the application, claiming both litiga-tion and solicitor-client privilege over the requested information and records prepared during the course of its internal investigations. The court concluded that if Suncor was able to establish that the dominant purpose of conducting its investigation was in contemplation of litigation, it would therefore be entitled to claim litiga-tion privilege over the records generated, notwithstanding any statutory obligation to produce those records. The court also accepted that Suncor had established that the dominant purpose of carrying out its internal investigation was in contemplation of litigation, with the net effect being that information, documents and records produced for that purpose were also covered by litigation privilege. However, the court proceeded to direct that given the volume of records over which Suncor was claiming privilege, the assessment of which particular documents or records were created during those periods was referred to the court’s Case Manage-ment Counsel, to act as referee in order to determine which of the specific records, documents and informa-


tion generated in relation to Suncor’s investigation were appropriately cloaked with privilege and therefore not required to be produced.

4. Production of Records from a Non-PartyThe decision of Cullihall v Liyanage, 2016 ABQB 551 (CanLII) concerned an application by the defen-

dant for an order directing the plaintiff ’s employers to provide copies of their respective employment files relating to him. Plaintiff ’s counsel opposed the application on the basis that the proper procedure under Rule 5.13 is for the non-party’s records to first be provided to the plaintiff for assessment of relevance, materiality and privilege. The court rejected the notion that a blanket procedure for determining relevance and material-ity governed such applications, observing that it is the court’s function to determine relevance, materiality and privilege under Rule 5.13. Although the court rejected the plaintiff ’s ability to vet any records provided by the employers for relevance, materiality and privilege, prior to disclosure to the defendant, the court did acknowl-edge that the breadth of some of the defendant’s requests, as well as the lack of clarity in the plaintiff ’s asser-tion of privilege, may require court review of some of the records produced prior to determining whether or not they should be disclosed to the parties.

V. Document Production Requirements in Saskatchewan

A. IntroductionPart 5 of the Queen’s Bench Rules of Saskatchewan describes the information and documents that par-

ties must disclose in litigation. Specifically, the practice of disclosure and production of documents is laid out in Rules 5-5 to 5-17.

Under Part 5, the parties are required to disclose information relevant to any matter in issue in the action (Rule 5-6). This general duty does not admit any exception other than solicitor client privilege (see Spencer v. Canada (Attorney General), 2000 SKCA 96).

In general, a party to an action is obliged to disclose to the opposing party all relevant documents through an affidavit of documents (5-5(1)). The affidavit of documents must also specify which of the docu-ments are in the possession, custody or control of the party on whose behalf the affidavit is made. Documents are categorized and listed in particular schedules. Namely:

1. Schedule 1 contains a list of the documents that are in the possession, custody or control of the party on whose behalf the affidavit is made;

2. Schedule 2 contains a list of the documents, if any, that the party objects to producing and includes the grounds for objection;

3. Schedule 3 contains a list of documents that the party previously had in the party’s possession, custody and control and must include the time when and manner in which those documents ceased to be in the party’s possession, custody or control, as well as the present location of the documents if known.

Moreover, there is an obligation of ongoing disclosure and production of relevant documents even after the affidavit of documents has been filed. Where a party finds, creates or obtains possession, custody or control of a document relevant to any matter in issue not previously disclosed, the party must immediately give notice of it to each of the other parties and serve a supplementary affidavit of documents on each of the parties (Rule 5-10).


After the affidavit is delivered, a party will be required on notice to produce for inspection by the party requiring the documents all those documents that are in the possession, custody or control of the party giving the notice (that the party giving the documents does not object to) and permit the party requiring the documents to inspect the documents and to make copies of them.

Where a document is in the possession, custody or control of a third party, the court may order the production of that document if there is reason to believe that the document is relevant to any matter in issue and that third party who has possession, custody or control of the document might be required to produce it at trial (Rule 5-15).

B. ProportionalityIn general terms, Rule 1-3 expressly provides that the purpose of the rules are intended to be used to

identify the real issues in dispute, to facilitate the quickest means of resolving a claim at the least expense and to provide an effective, efficient and credible system of remedies and sanctions to enforce the rules. Particular to the rule of proportionality, Rule 1-3(4) states:

(4) Resolving a claim justly in a timely and cost effective way includes, so far as is practicable, con-ducting the proceedings in ways that are proportionate to:

(a) the amount involved in the proceeding;

(b) the importance of the issues in dispute; and

(c) the complexity of the proceedings.

In comparison to other jurisdictions such as Ontario, where the rules deal directly with proportional-ity of document disclosure, there is no document-specific rule in Saskatchewan except for general rule 5-6(1)(b) requiring disclosure of all documents “relating to any matter in issue.”

That being said, Rule 5-6 is the successor to former Rule 212. Former rule 212 required production of documents “relating to any matter in question.” Accordingly, the test to be applied under former rule 212 was the “broad relevance test”. Subrule 5-6(1)(b) no longer contains the words “relating to any matter” - it uses the words “relevant to any matter in issue.” As noted in Canadian National Railway Co v. Clarke Transport, 2013 SKQB 294 at paragraph 18:

Concerns existed in Saskatchewan, as in other jurisdictions, that the broad relevance test did not strike a proper balance between the considerations of efficiency, timeliness in the conduct of litigation and cost control on the one hand with the counterbalancing interests of litigants and counsel in ensuring that all potentially relevant information was known.

Thus, by adopting the phrase “relevant to any matter in issue”, Saskatchewan is following the lead of other provinces and for the purposes of the current rules, engaging a consideration of both logical relevance and materiality and in accordance with the proportionality considerations of Rule 1-3. This concept of rel-evance must be applied so as to serve the foundational purpose of proportionality (see RJ England Consult-ing Ltd v. Palantir Property 2001 Inc., 2014 SKQB 65; Canadian National Railway Co v. Clarke Transport, 2013 SKQB 294).

C. Enforcement of the Obligations to Disclose and ProduceWhere a party contends that an opposing party has failed to comply with either the obligations to

disclose or the obligations to produce a document, steps can be taken to enforce the obligation pursuant to Rule 5-12, namely, the party desiring production may apply to the court for an order for a range of different remedies including disclosure of the documents, production of the documents, inspection of the documents,


or an order determining whether the documents with respect to which privilege is claimed are in fact privi-leged.

In SGI v Medynski, 2007 SKQB 294, the plaintiff brought a motion alleging that the defendant had not discharged its full duty of disclosure and pointing out three areas where the defendant’s statement as to docu-ments appeared to be deficient in light of the issues raised in the context of action. In particular, SGI argued that documents it would have expected to appear in the defendant’s statement as to documents had not been dis-closed or produced. The court held that the plaintiff was entitled to further and better disclosure and production.

D. Current Document Production Issues in Saskatchewan

1. Electronic DocumentsIn Saskatchewan, documents are given an extremely broad interpretation. Rule 17-1 provides an

inclusive definition of the term “document” to include information recorded or stored by means of any device including an audio recording, video recording, computer disc, film, photograph, chart, graph, map, plan, sur-vey, book of account or machine readable information. Thus the definition of “document” as set out above is clearly not limited to paper documents. Among other “non paper” items that have been held to be subject to disclosure, Saskatchewan case law has included:

1. Tape recordings (Pedigree Poultry Ltd. V. Sask Energy 1997, 156 Sask R. 315 (SKQB);

2. Hard drives, computer disks, tape backups and the relevant content of “other information stor-ing devices such as word processing equipment, electronic diaries and or electronic notebooks” (Bank of Montreal v. 3D Properties Inc. (No. 3) (1993), 110 Sask R. 302 (SKQB);

3. Email correspondence (NRS Block Bros. v. Co-op Dev. Corp. (1994), 119 Sask R 279 (SKQB);

While limited province specific case law deals with the topic of electronic documents, in 2013, Sas-katchewan courts provided guidance to the area of disclosure, production, preservation and retrieval of elec-tronic documents through the issuance of a Civil Practice Directive entitled E-Discovery Guidelines, though it gave no indication of the scope for discovery pertaining to social media.

2. Social MediaTo date, Saskatchewan courts have given little guidance to the developing area of the scope of discov-

ery of Social Media documents.

Most recently, the case of Wesaquate (Litigation Guardian of) v. Webb, 2012 SKQB 2, provided some direction in the area. In this case, the Defendants applied for an order seeking that the Plaintiff produce all material contained on her Facebook account.

The court ruled that postings on web based networking sites such as Facebook fall under the defi-nition of “documents” for the purposes of disclosure. Therefore, one may infer that in Saskatchewan, social media (particularly Facebook posts), must be disclosed if they are relevant to any issue in the action as required by any other “document” in the disclosure process.

In the analysis, Justice I.D. McLellan stated that the mere fact that the plaintiff has a Facebook pro-file does not therefore follow that it contains information relevant to the action and ultimately determined at paragraph 11:

If I were to allow the defendants’ application, it would be tantamount to holding that mere proof of the existence of a Facebook site should allow a party to gain access to all material placed on that site. It would be an invasion of the plaintiff ’s privacy that I am not prepared to make.


Leave to appeal was subsequently refused (Wesaquate (Litigation Guardian of) v. Webb, 2012 SKCA 13).

3. SurveillanceIn Saskatchewan, evidence surrounding surveillance is to be disclosed in a party’s affidavit of docu-

ments, but may be withheld on the basis of privilege.

The case of Auchstaetter v. Froese, [1995] 4 WWR 716 contemplated the requisite description of the dis-closure required in an affidavit of documents when privilege is claimed with respect to surveillance videotape.

The court concluded in that case that surveillance documents must be disclosed and identified with “reasonable certainty” as per the general Rules 5-6 and 5-10 pertaining to disclosure of relevant documents. The phrase “reasonable certainty” was interpreted to be “the precise date and time upon which, and the exact place at which, each videotape and each segment of each tape was recorded.” The court further turned to Schlechter v. Schlechter (1988), 73 Sask R, for guidance as to the term “reasonable certainty” to rule that:

“the [affidavit of documents] must identify the documents sufficiently to enable the opposite party to know what documents are being referred to and to enable an order for their production to be enforced if the claim for privilege is unfounded. The description should contain enough detail to allow a judge, on a motion for production, to determine if a prima facie case has been made out for a claim of privilege. However, no details need to be provided which would enable the opposite party to discover indirectly the contents of the privileged documents, as opposed to their existence and location.”

Upon the above reasoning, Saskatchewan courts do not require the author or investigator to be dis-closed in surveillance documents as the name of the author could allow the opposing party indirectly to ascer-tain the nature of the investigation.

4. Bank RecordsIn the case of Gord’s Anchor Service Ltd. V. Turbo Oilfield Service Ltd., 2011 SKQB 2011, the plaintiff

sued the defendant for an accounting of the profits of operating a picker truck in the oil fields pursuant to an agreement. The defendant argued the agreement was repudiated. The plaintiff applied to the court for produc-tion of all of the defendant’s bank statements related to the operation of the picker truck in question.

The court found that while the trend towards full and complete disclosure and flexibility in the man-ner of obtaining disclosed documents is clear, entire business banking records of the operating account were not relevant to the matters in question, even where one considered the broad relevancy test.

VI. Document Production Requirements in OntarioIn Ontario, the requirements for document production are governed by the Rules of Civil Procedure.

Rule 30 sets out the scope of documentary discovery.

Under Rule 30, every document relevant to any matter at issue in an action that is, or has been, in the possession, control or power of a party to the action must be disclosed, even if privilege is being claimed over it (Rule 30.02(1)). However, only non-privileged documents must be produced for inspection (Rule 30.02(2)).

Rule 30.01(1)(b) deems a document to be in a party’s “power” if “that party is entitled to obtain the original document and the party seeking it is not so entitled.” The courts have defined “control” to mean that a party has the power to lay down conditions upon which others may or may not have access to the document, as distinct from the power to obtain the document themselves. See Zurich Insurance Co. v. Paveco Road Build-ers Corp., 2007 CarswellOnt 9175.


The term “document” is defined in a broad manner and includes: a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account and date and information in electronic form.

Document production occurs by way of an affidavit of documents, in which each document is listed in a particular schedule:

• Schedule A contains a list of all the documents that are in the party’s possession, control, or power and that the party does not object to producing;

• Schedule B contains a list of all the documents that are or were in the party’s possession, control, or power for which the party claims privilege;

• Schedule C contains a list of documents that were previously in the party’s possession, control, or power, but are no longer; and

• in actions where the amount claimed is $100,000.00 or less, there is an additional Schedule D, wherein the party must list the names and addresses of persons who might reasonably be expected to have knowledge of the transactions or occurrences in issue (Rule 76.03(2)).

In practice, an unsworn affidavit of documents is often produced prior to the examination for discovery (deposition) of a party. At the time of the discovery, the document is sworn and served on the opposing parties.

The requirement of disclosure does not end once the affidavit of documents has been produced. Pursuant to Rule 30.07, where a party, after serving an affidavit of documents, (a) comes into possession or control of or obtains power over a document that relates to a matter in issue in the action and that is not privileged; or (b) discovers that the affidavit is inaccurate or incomplete, the party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modifications and disclosing any additional documents. Pursuant to Iannarella v. Corbett, 2015 ONCA 110, the Ontario Court of Appeal has now confirmed that even newly obtained privileged documents must be disclosed in a supplemen-tary affidavit of documents.

If a party has claimed privilege over a document, it may not be used at trial for any purpose other than to impeach the witness unless the privilege has been waived in writing at least 90 days before the com-mencement of trial (Rule 30.09).

If a document is not disclosed and is favourable to the party’s case, it will be deemed inadmissible, either as substantive proof of fact, or for the purpose of impeaching the credibility of another witness (see Rule 30.08(1) and Iannarella v. Corbett, 2015 ONCA 110).

A. ProportionalityWhile Ontario has retained a broad scope of relevance in the language used in the rules, Rule 29.2.03

“requires the court to consider a variety of factors associated with the idea of proportionality when making a determination of whether a party or other person must answer or produce a document,” (see Ontario v. Roth-mans Inc., 2011 ONSC 2504 at para. 155). Pursuant to Rule 29.2.03, in considering whether to make such an order, the courts are to consider whether:

• the time required for the party or other person to answer the question or produce the document would be unreasonable;

• the expense associated with answering the question or producing the document would be unjus-tified;

• requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;


• requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

• the information or the document is readily available to the party requesting it from another source.

They are also to consider whether an order would result in an excessive volume of documents required to be produced by the party or other person (Rule 29.2.03(2)).

In Ontario v Rothmans, the court made it clear that “[t]he base line is that the Rules of Civil Procedure are designed for cases of all sizes, but the proportionality principle allows the court to downsize the procedure and still do justice for the parties. If downsizing is not procedurally fair then the normal rules should apply to the proceedings without augmentation,” (at para. 163).

In Saliba v. Swiss Reinsurance Co., 2015 ONSC 1351, the court heard the defendant’s second motion for a request for production of emails. In 2013, the defendant had made a similar request, which was rejected due to the fact that it was only marginally relevant to or probative of the defendant’s allegations, it was specu-lative and amounted to a fishing expedition, and the broad nature of the request was unreasonable and not in keeping with the principle of proportionality. The defendant’s second request for emails was more narrow, and was granted as it would take significantly less time than that made in 2013, and both the statement of claim and defence had been amended, thereby making the productions more relevant to the issues at hand.

While the above case provides an example, it must be noted that every case is decided on its facts, and the meaning of “proportional” will have to be determined in the unique circumstances of each file.

B. Current Document Production Issues in Ontario

1. Social MediaCourts in Ontario do not yet agree on whether plaintiffs must produce private portions of their social

media profiles as a matter of course, and seem to decide this issue on a case by case basis. The basic test is whether the information on the social media page is relevant, pursuant to Rule 30, and whether its probative value outweighs its prejudicial effect, pursuant to Rule 29.2. However, in practice, this test has at times led to inconsistent results.

In Murphy v. Perger, [2007] OJ No 5511 (ONSC), the court found that if the plaintiff ’s public Face-book profile demonstrated relevant material, it was likely that the private Facebook profile would also produce relevant material.

Conversely, in Garacci v. Ross, 2013 ONSC 5627, the plaintiff, at her examination for discovery, read-ily admitted to being able to participate in activities such as swimming at the cottage, going to the gym and travelling to Mexico. The photographs that were available through her public Facebook page depicted her par-ticipating in these and other types of low impact activities. The court held that since the photographs on her public profile were not relevant, it was unlikely that her private pictures would be any more relevant.

In Leduc v. Roman, [2009] OJ No 681 (ONSC), the court went even further than in Murphy v. Perger and found that relevance was met by the mere notion of the plaintiff having a social media page. The judge found that since the plaintiff had a Facebook page, it would likely contain relevant content.

In Parsniak v. Pendanathu, 2010 ONSC 4111, Leduc v Roman, and McDonnell v. Levie, 2011 ONSC 7151, the court found that where the plaintiff has put his or her social enjoyment of life in issue and alleges various activities that he or she is unable to do, photographs posted on a public or private Facebook profile depicting his or her social life and activities before and after the alleged trauma should be part of the affidavit of documents.


2. SurveillanceIn Ontario, the timing of surveillance will generally determine when and how it must be produced.

If surveillance is obtained prior to the preparation of an affidavit of documents, the report must be listed in either Schedule A or B. There is then an obligation to provide particulars of the surveillance. The particulars must include: the date, time and place of the surveillance, as well as the nature and duration of the activities depicted. This usually takes place at the examination for discovery.

If surveillance is obtained after an examination for discovery, a supplementary affidavit of documents must be served listing all new privileged documents, as well as non-privileged documents, including surveil-lance.

If the surveillance is not disclosed in a supplementary affidavit of documents, the court can exclude the evidence. In 2015, the Ontario Court of Appeal ruled on this issue and found that in the circumstances of that particular case, where the surveillance was never disclosed before trial, the trial judge erred in allowing it to be introduced to impeach the plaintiff ’s testimony (see Iannarella v Corbett, 2015 ONCA 110).

On the basis of the above decision, in Vickers v Palacious, 2015 CarswellOnt 20890, the court used Rule 30.08(1) to exclude video surveillance. While the defendant’s video surveillance was disclosed to the plaintiff before trial, the disclosure was only done three weeks before trial. This was deemed to have preju-diced the plaintiff. It should be noted that the defendant had been in possession of the surveillance for years. However, in Bishop-Gittens v Lim, 2015 ONSC 3553, on similar facts, the evidence was permitted to be used to impeach the plaintiff even though the defendant only disclosed the surveillance, which had been completed years ago, 12 days before trial. The judge found that the prejudicial effect of the surveillance did not outweigh its probative value and that the defendant should be entitled to refer to the surveillance.

3. Witness StatementsTo determine whether written statements made by witnesses fall within the privileged class of docu-

ments prepared in anticipation of litigation, the court (or party deciding whether or not to claim privilege) must determine whether the document was “created for the dominant, as opposed to substantial, purpose of preparing for litigation,” (see General Accident Assurance Co v. Chrusz (1999), 45 OR (3d) 321 (ONCA)).

In Gabany v. Sobeys Capital Inc, 2002 CarswellOnt 2683, witness statements had been prepared after the plaintiffs retained counsel and had notified the defendants that they were holding them responsible for the slip and fall. This was deemed a “real prospect of litigation”.

In Knox v. Applebaum Holdings Ltd, 2012 ONSC 4181, the defendant’s property manager had typed up a written statement immediately after a motor vehicle accident in the building’s parking lot. Although the defendant was not yet represented by counsel, the property manager believed that litigation would fol-low as two people had been injured and the accident had occurred in a parking lot under the control of her employer.

In both of the above cases, the witness statements were deemed to be privileged. However, the matter does not end there.

Rule 31.06(2) sets out that on examination for discovery, a party may obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occur-rences in issue in the action, unless the court orders otherwise. Courts in Ontario have broadened this rule to mean that in addition to the names and addresses, a party must also provide a summary of the substance of the evidence of those persons who might reasonably be expected to have knowledge of the matters in issue if requested during examinations for discovery (see Dionisopoulos v. Provias, [1990] OJ No 30 and General Acci-


dent Assurance Co v. Chrusz (1999), 45 OR (3d) 321 (ONCA)). This includes summaries of all witnesses state-ments listed in Schedule B of the affidavit of documents.

Any such summary “must contain a fair degree of detail addressing the normal journalistic questions related to the person and the relevant knowledge that he or she possesses, being: “who, what, where, when, why and how”” (Davies v Clarington (Municipality), 2010 ONSC 6103).

VII. Document Production Requirements in QuébecQuébec is a civil law jurisdiction in which civil procedure is codified in the Code of Civil Procedure,

CQLR c. C-25.01. The requirements for document production are primarily set out in ss. 246-251.

S. 3 of An Act to Establish a Legal Framework for Information Technology, CQLR c C-1.1, defines the term “document” as follows:

information inscribed on a medium constitutes a document. The information is delimited and structured according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or other systems or symbols.

Québec’s Code of Civil Procedure was entirely revamped and came into effect on January 1, 2016. The rules of document production were substantially changed under this new Code in part to widen discovery production obligations and encourage cooperation of the parties in doing so. Nevertheless, Québec’s New Code of Civil Procedure (“New Code”) continues to differ substantially from the rules of civil procedure in the com-mon law provinces in this respect.

For instance, parties to litigation in Québec are not obligated to produce documents that are deemed to be in a party’s “power, possession or control” by way of affidavit of documents prior to an examination for discovery, as in Ontario and other common law provinces. The very concept of an affidavit of documents is foreign to the New Code.

While the rules of civil procedure in most common law provinces explicitly prohibit the pleading of evidence, in Québec, exhibits in support of an originating application or a pleading must be specifically listed in the pleading, or in a notice attached to it (Art. 247 C.P.C.).

A party must only produce evidence it intends to use at trial to support its position. It need not pro-duce documents that are adverse in interest to it, even if such documents are in the party’s power, possession or control. By way of example, if a party was in possession of an internal memo prior to discoveries that is adverse to its own interest, its existence need not be disclosed to the other parties, if it does not intend to rely on it at trial.

While the obligation to produce documents at first instance is limited, parties are permitted to request that opposing parties undertake to obtain and produce relevant documents or classes of documents during the examination for discovery process. Undertakings may be enforced subject to the proportionality concerns discussed below. However, where a request is not made and no undertaking is given, no obligation to produce those documents will arise.

With the advent of the New Code, the parties must now file a “case protocol”, as a first step in the dis-covery process. This protocol, which must be filed within 45 days of the originating process, should address the procedure and time limit for pre-trial discovery and disclosure of evidence (art. 148(6) C.C.P.).


This section, which is new in Québec law, essentially allows parties to agree on documents that will be exchanged prior to the examination for discovery and throughout the litigation process. While this is a marked change from the previous Code of Civil Procedure, as it allows parties to essentially obtain pre-under-takings in advance of discovery, it is a far cry from having to produce a sworn affidavit of documents, as is the case for the rest of Canada.

Further, a party must only communicate the evidence it intends to rely on at trial to other parties at the time of setting the action down for trial. Pursuant to Article 248 C.C.P. a party who fails to disclose evi-dence at that time will not be able to produce it at trial without the authorization of the Court.

A. ProportionalityIn Québec, courts have acknowledged that the principle of proportionality is intrinsically linked to

the production of evidence. See, for example, Imperial Oil v. Jacques, [2014] 3 SCR 287, 2014 SCC 66 (CanLII). The New Code at art. 18 C.C.P. codifies this principle and adds that it shall also apply in communication of evidence. Art. 18 C.C.P. reads as follows:

18. The parties to a proceeding must observe the principle of proportionality and ensure that their actions, their pleadings, including their choice of an oral or a written defence, and the means of proof they use are proportionate, in terms of the cost and time involved, to the nature and complexity of the matter and the purpose of the application.

Judges must likewise observe the principle of proportionality in managing the proceedings they are assigned, regardless of the stage at which they intervene. They must ensure that the measures and acts they order or authorize are in keeping with the same principle, while having regard to the proper administration of justice.

This article in the New Code highlights the fact that the civil justice system must be accessible and must ensure a certain equality between the parties.

The New Code also added a duty to cooperate at art. 20 C.C.P., which reads as follows:

20. The parties are duty-bound to co-operate and, in particular, to keep one another informed at all times of the facts and particulars conducive to a fair debate and make sure that relevant evi-dence is preserved.

They must, among other things, at the time prescribed by this Code or determined in the case protocol, inform one another of the facts on which their contentions are based and of the evi-dence they intend to produce.

This article, which originates from the French Civil Code, explicitly imposes a duty of cooperation between the parties in the context of the production of evidence. A party must inform the other party of the evidence they intend to produce. This obligation is limited to production of evidence it intends to produce to support its own allegations. It does not impose the duty on parties to provide evidence that is contrary to their interests.

Finally due to the restrictive nature of the discovery process in Québec, e-discovery has not really taken root. Discovery of electronic documents are very much restricted to what is relevant. Judges will limit e-discovery in order to respect the proportionality rule and prevent fishing expeditions.

B. Expert ReportsContrary to Ontario, for example, unless specifically referred to in a pleading, expert reports do not

have to be communicated to other parties prior to the examination for discovery as they are covered by a


solicitor-client relationship and litigation privilege. In fact, the existence of an expert report need not be dis-closed until the action is set down for trial (art. 251 C.C.P.) unless a party does not intend to use it at trial. This implies that a party which obtained an expert report that contains information that is adverse to their inter-ests need not disclose even its very existence to other parties at all. This is very different from the common provinces in the rest of Canada.

However, the New Code imposes the novel concept of common experts.

Article 148(6) C.C.P. states that parties must in the case protocol, set out if they will retain a joint expert to provide a common expert report, or set out reasons why the parties do not intend to seek a joint expert opinion. This is a new provision which encourages joint reports in order to streamline the litiga-tion process, reduce fees and more independently enlighten the Court. Obviously, such a joint report can-not be buried and the parties are immediately and concomitantly made aware of the findings, opinions and conclusions. This provision has very much changed the landscape of production of expert reports. One of the grounds currently raised to avoid proceeding with a joint retainer of experts is to obtain one as soon as litiga-tion is anticipated. In that case, it may stay confidential until a party so chooses to disclose it, typically as they set the action down for trial or unless another date has been agreed to in the case protocol.

C. SurveillanceIn Québec, surveillance is generally inadmissible at trial, as it violates article 5 of the Québec Charter

of Rights and Freedoms, L.R.Q., c. C-12, a quasi-constitutional statute which protects a person’s right to pri-vacy. Surveillance can only be obtained if a party has serious grounds to doubt the honesty and integrity of a claimant. See Standard Life v. Tremblay, 2010 QCCA 933. Also, surveillance must be conducted in a way that limits the violation of a person’s right to dignity (Syndicat des travailleurs(euses) de Bridgestone Firestone de Joliette (csn) c. Trudeau, 1999 CanLII 13295 (QC CA).

Consequently, there are far fewer cases in Québec involving surveillance than in the common law provinces.

That said, as with all other evidence in Québec, a party must produce it to other parties at the lat-est when the action is set down for trial. Again, if the surveillance is not helpful to the defence and does not intend to rely on it at trial, the defence need not disclose it.

A defendant would, however, be obligated to produce surveillance footage as an undertaking sought at examinations for discovery subject to relevance and litigation privilege.

The new duty to cooperate which encourages parties to the transparent exchange of information will certainly be used by the courts to broaden the production obligation of parties in order to avoid litigation by ambush. However, production requirements in Québec are nonetheless limited to documents that parties intend to produce, unless specifically requested as an undertaking, either before or after examinations for dis-covery.

D. Social MediaSimilar principles apply with respect to social media. Evidence a party chooses to adduce in support

of their claim must be produced by the date to set the action down for trial. The new art. 20 C.C.P. once again encourages parties to exchange documents as soon as possible to avoid litigation by ambush. A party may specifically request the production of evidence as an undertaking prior to or after examinations for discovery, subject to relevance and litigation privilege (Art. 221 C.C.P.).


VIII. ConclusionWhile the mechanics may differ somewhat, the rules of document production in Canada are rela-

tively consistent across provinces, with the exception Québec. In every province, the concepts of materiality and proportionality are the key factors in determining how far a party must go to produce documents.

Needless to say, both concepts are open to interpretation, and can become very contentious. Further, while parties may attempt to limit the scope of documents produced based on their own perfectly valid inter-pretations of what is proportional and material, where skilled opposing counsel identify additional documents that are known to exist, the progressively broad concepts of “possession”, “control” and “power” over docu-ments can make disclosure obligations very extensive, even under the new framework.

Finally, in most Canadian jurisdictions, because the onus is on the parties themselves (and their counsel) to identify and disclose documents in an appropriate manner in accordance with the applicable rules of procedure and professional responsibility, there will often be little judicial sympathy for creative arguments in support of non-disclosure. As a result, it is often very difficult for parties to hold their cards close to the vest.

An Introduction to Document Discovery in Canada

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