Chief Legal Data Intelligence Office and Senior Counsel
July 23, 2025
In the evolving landscape of electronic discovery, courts are increasingly asked to adjudicate disputes over document production volumes and the boundaries of relevance. Two recent decisions, Acciona Wastewater Solutions LP v. Greater Vancouver Sewerage and Drainage District [GVS&DD], 2025 BCSC 1256 (Acciona) and Gowing Contractors Ltd. v. Walsh Construction Company Canada, 2023 ONSC 4407 (Gowing), offer contrasting judicial approaches to these challenges.
Acciona misses a critical opportunity to clarify the legal obligations of document production under Rule 7-1 of the British Columbia Supreme Court Civil Rules. In Acciona, in the face of production of large volumes of irrelevant information, Justice Elwood emphasized the party’s good-faith efforts in document production. In contrast, Justice Wiebe in Gowing assessed whether the production met the substantive requirements of the Ontario Rules of Civil Procedure. He grounded his decision in what constitutes an acceptable outcome from document-production efforts. In doing so, he upheld both the fairness and the efficiency of the litigation process.
Disclosure Obligations in B.C. and Ontario
At the heart of both cases lies the fundamental legal obligation that governs production of documents in each jurisdiction. In B.C., Rule 7-1(1) requires parties to list all documents that could be used at trial to prove or disprove a material fact, and all other documents to which the party intends to refer at trial. Subsection 9 of that Rule creates a mechanism for correcting an “inaccurate list”. In Ontario, Rule 30.03(1) demands disclosure of every document relevant to any matter in issue in the action.
Acciona: Process Over Substantive Compliance
In Acciona, the plaintiff produced nearly 4 million documents. The defendant, GVS&DD, alleged that roughly 750,000 were irrelevant, and hundreds of thousands more were duplicative or near-duplicates. GVS&DD sought an order under Rule 7-1(9) to require Acciona to amend its list of documents.
While acknowledging the volume of non-relevant material, Justice Elwood declined to grant the order. He emphasized that Acciona had complied with a negotiated electronic document exchange protocol, used industry-standard technology assisted review (TAR 1.0), and acted in good faith. GVS&DD had attacked Acciona’s production largely based on the use of TAR precision rates as a legal benchmark, and Justice Elwood rejected such an approach and warned against conflating overproduction with misconduct. Justice Elwood stated as follows at paragraph 74 of his reasons for judgment:
[Acciona] spent many hours and a significant amount of money to reduce a very large and complex document set to a manageable production. There is no evidence that it acted with the intent of obfuscating the discovery process or offloading its discovery costs onto the GVS&DD.
One might query whether Acciona’s ultimate production was indeed “manageable”. Such a conclusion ought not to be made simply by considering the starting number of documents and the number in the produced set. More troubling, Justice Elwood appears to require evidence of an intent to obfuscate the discovery process or offload discovery costs before deeming any overproduction wrongful. Such a standard cannot be correct in law, as it effectively shields blatant non-compliance absent proof of bad faith.
While there is common ground with Justice Elwood that TAR precision rates should not be used as a legal benchmark, his approach arguably fell short of what we should expect from Canadian courts. By focusing on Acciona’s effort, cooperation, and technology choices, the Court avoided answering the core legal question: did the resulting list of documents satisfy the requirement of disclosure under Rule 7-1?
After reading Acciona, one is left with the impression that if a party uses advanced technology and follows an agreed protocol, the resulting production is presumptively valid, even if it contains vast amounts of irrelevant data. By prioritizing effort over outcomes, Justice Elwood weakens what should be the core protective function of Rule 7-1.
Gowing: Substantive Compliance Over Process
In contrast to Acciona’s process‐centric approach, Gowing turns squarely on whether the end‐result satisfied Ontario’s substantive disclosure requirements. There, Walsh Construction produced over 270,000 clearly irrelevant documents, which constituted about 25% of its total production. While Walsh defended this by claiming it erred on the side of inclusion, the court rejected this rationale.
Justice Wiebe reaffirmed that it is the producing party’s obligation to decipher relevance, not the receiving party’s burden to cull massive irrelevant sets. He called the overproduction “egregious” (at para 29), found Walsh in breach of its obligation under the Rules, ordered a corrected affidavit of documents, disclosure of custodians and search terms, and awarded costs thrown away.
Importantly, the decision did not hinge on whether Walsh used a discovery plan, consulted the Sedona Canada Principles, or employed sophisticated tools. Rather, the Court focused on whether the result met the legal standard: a usable and legally compliant document set. Justice Wiebe treated relevance as a legal question, not a technical feature, and enforced that obligation accordingly.
Why Acciona Missed the Mark
The decision in Acciona failed to enforce Rule 7-1’s normative standard. The Court accepted a list of documents containing hundreds of thousands of irrelevant items without requiring Acciona to amend it. The emphasis on cooperation and cost containment is commendable, but it should not override the legal duty to produce relevant documents, and the corresponding obligation to avoid production of large numbers of irrelevant documents.
Had the Court applied the reasoning in Gowing, it might have concluded that the list was not “accurate” under Rule 7-1(9), because it failed to reflect a properly vetted set of relevant materials. The legal obligation to decipher relevance was ultimately subordinated to efficiency and technical compliance, which is a troubling precedent in complex litigation.
Arguably, Justice Elwood ought to have taken an even stricter approach to scrutinizing the results of the impugned production than Justice Wiebe did in Gowing, given that the B.C. Rules demand that productions be “material”, a narrower standard than general “relevance” which is the terminology in the current Ontario Rules.
Conclusion
The divergent approaches in Acciona and Gowing underscore a fundamental tension in modern discovery practice: process versus substance. This tension is amplified by the complexity of today’s eDiscovery platforms and the routine engagement of non-lawyer specialists to sift through terabytes of data. While these tools and professionals are useful, the ultimate responsibility remains with counsel to produce relevant documents, in the case of Ontario, and “material” documents in the case of B.C., and to exclude irrelevant documents. Each case is unique, and while there will undoubtedly always be some irrelevant documents in a large production, lawyers simply cannot outsource their core duty to technology or to non-lawyers or shift the burden of overly broad productions onto the receiving party.
