Associate
October 20, 2021
A recent decision, Chance Oil and Gas Limited v Yukon (Energy, Mines and Resources), 2021 YKSC 44 (CanLII) , provides a good window into the discovery process in the Yukon.
In this case, both sides filed applications to compel each other to meet their document discovery obligations. The plaintiff claimed that the defendant grossly under-produced by listing only 445 documents in its affidavit of documents. The defendant alleged that the plaintiff, in contrast, overproduced by listing over 34,000 documents, some of which were not relevant.
First, the court pointed that the expression “every document relating to any matter in issue in an action” relating to disclosure obligations in Rule 25 of the Rules of Court has been given a broad and liberal interpretation by the courts. On that basis, the court concluded that document discovery should be broad and the test that applies is that of “possible relevance”. However, citing Yukon Rules of Court Rule 1(6) and the Sedona Canada Principles, the court also pointed out that discovery must be governed by the principle of proportionality.
Second, the court noted that it is the obligation of the parties to provide an affidavit of documents that complies with the Rules of Court, and it is not for the court to craft for the parties an exhaustive list of all the matters in issue and all the categories of records. Accordingly, the court “invited” counsel for the parties to meet, and with the Sedona Canada Principles in mind, to agree on a list of issues, categories of records to be produced, and other discovery-related matters.
As regards to the defendant, which identified only 445 relevant documents, the court found that the search for relevant documents was deficient in that the key words list was very limited, not all matters in question were properly identified, and the relevancy assessment was limited and simply not broad enough. As a result, the defendant was ordered to prepare and provide a further and better affidavit of documents. As noted, the defendant was also invited to cooperate with the plaintiff with regards to identifying key words, creating a list of issues and matters in dispute, and document categories that should be produced.
The plaintiff did not get a pass either. The court found that the defendant had demonstrated with supporting examples that the plaintiff’s affidavit of documents contained an unacceptable number of clearly irrelevant documents. The court also noted that overproduction of irrelevant documents is as damaging to the litigation process as an incomplete production. The plaintiff was thus ordered to conduct a meaningful manual review of the approximately 34,000 documents already produced in order to remove as many as possible clearly irrelevant documents.
This decision serves as a good reminder that counsel must consider and approach the discovery process very carefully. First, it is extremely prudent to confer early with the other side and try to agree on the issues in dispute and on the discovery process and production mechanics. Next, regardless of the review process selected by the party, there should be quality control procedures in place to ensure that document production includes all relevant documents and excludes all irrelevant documents. For example, you do not want to be in front of the judge explaining how irrelevant “jokes, family updates, or things happening in other parts of the country” made it into the production as it happened in this case. Finally, parties should use common sense and avoid taking extreme positions. In this case, the court rejected both sides of the extreme: a very narrow approach by the defendant that wanted to include only key records and an overly inclusive approach by the plaintiff that the mere “hit” on a key word would make a document relevant.
Vladyslav (Vlad) Strashko is an Associate at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence. Heuristica has considerable experience in investigations and disputes and recently became the first law firm in the world to be awarded RelativityOne Silver Partner status.
