Director, Review Services and Counsel
August 28, 2023
Civil courts across the country are facing lengthy delays and backlogs. These growing delays increase costs and deny litigants the ability to access timely financial relief and move on with their lives. Indeed, delay is one of three barriers to access to justice specifically noted by Chief Justice Wagner in his 2018 remarks at the 7th National Pro Bono Conference in Vancouver:
It can take a year or more even to get a date for a trial that might last two months. In the meantime, parties suffer financial losses or family disharmony; physical and mental health issues remain unresolved. An injured person might be persuaded to take a lower settlement because he can’t work and needs to pay the bills. Delays cause people to make difficult, and life-altering, choices.
A recent Advocates’ Society Call to Action Publication, addresses the rampant delay in the civil justice system and outlines the extent of this delay in various provinces. In Ontario, “it currently takes almost 1.5 years for a motion longer than 2 hours to be heard by a judge in Toronto… and more than 4 to 5 years for a civil action to proceed from commencement to trial.” In Alberta, “it routinely takes more than 9 months for an application longer than 20 minutes to be heard by a judge in Edmonton or Calgary; and 2 to 3 years for a trial longer than 5 days to be scheduled from the date the parties certify readiness.”
In the publication, the Advocates’ Society noted that the discovery process is often the most expensive and time-consuming part of civil litigation and that discovery-related motions can jam up the civil justice system. Reducing the use of limited judicial resources on these disputes could help get the civil justice system back on track.
At the heart of the discovery process is the obligation of each party to produce its relevant documents. Failure to comply with this disclosure obligation adds unnecessary cost and delay to an action. As noted by the Ontario Court of Appeal in Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310 (CanLII):
[43] The goal of Ontario’s civil justice system is to provide the public with the just, most expeditious, and least expensive determination of every civil proceeding on its merits… To achieve that goal, parties to every action must comply with their document disclosure and production obligations without the need for a court to intervene to compel their adherence. […]
[48] … each time a party defaults on its disclosure and production obligations and requires the opposite party to seek the court’s assistance to remedy the default, two things happen. First, the cost of the litigation increases. Motions are not cheap; they add significantly to the overall costs of a civil case. Second, the final determination of the case on its merits gets pushed back, delayed by the need to bring a defaulting party into compliance with its disclosure obligations.
More importantly, given the current timelines crisis, improper documentary disclosure and production adds unnecessary burden to our already backlogged civil court system. Writing for the Ontario Court of Appeal, Justice Brown described the impact of improper documentary production on the civil justice system and access to justice in Falcon Lumber Limited:
[54] Parties who default on their documentary disclosure and production obligations impede the ability of our civil justice system to provide the fair, timely, and cost-effective adjudication of civil disputes on their merits. Their defaulting conduct promotes the culture of complacency towards delay decried by the Supreme Court, in the context of the criminal justice system, in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 40. As well, such conduct undermines on-going efforts to shift the Canadian civil litigation culture in the direction of providing more accessible justice to the public. As the Supreme Court pointed out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 27, the “developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted.” (emphasis added) In Hryniak, the Supreme Court called for a civil justice system that not only provides a fair process that results in the just adjudication of disputes, but also is “accessible — proportionate, timely and affordable,” for without an accessible process, a fair process is illusory: at para. 28.
At issue in Falcon Lumber Limited was the defendant’s failure to make complete production of relevant non-privileged documents, despite six court orders over a period of three years. The Court of Appeal upheld the motion judge’s decision to strike the statement of defence under rule 30.08(2) for non-compliance with documentary disclosure and production obligations.
At the other end of the spectrum, courts are also critical of a document dump. In Gowing Contractors Ltd v. Walsh Construction Company Canada, 2023 ONSC 4407 (CanLII), the defendant produced about 270,000 irrelevant documents, which amounted to “an astounding 25% of the total Walsh production to date”. Associate Justice Wiebe found the overproduction to be “egregious” as it “is the primary function of the producing party to do the work of deciphering what documents in its power, possession and control are relevant”.
While Falcon Lumber Limited and Gowing Contractors Ltd focused on the whether records have been properly listed in the affidavit of documents, the obligations of litigants (and their struggles in fulfilling the same) extend beyond this initial step. It is equally important to produce the documents in a proper and useable format.
Rule 29.1.03(4) requires parties to consult and have regard to the Sedona Canada Principles Addressing Electronic Discovery. Comment 8.b to the Sedona Canada Principles provides that “ESI should wherever possible be produced in original digital format”. Original digital format, or native documents, are preferred for several reasons, including that the original digital format contains important application level and user created metadata.
The importance of producing in the original digital format was stressed by Justice Nixon In Questor Technology Inc v. Stagg, 2022 ABQB 578 (CanLII). In that case, Justice Nixon ordered the defendants to produce native documents and reviewed the rationale for native document productions:
[114] Where records exist in multiple formats, including their native format, they must be produced: Bard v Canadian Natural Resources, 2016 ABQB 267 at para 96 [Bard], citing 2038724 Ontario Ltd v Quizno’s Canada Restaurant Corp, 2012 ONSC 6549 at paras 128-131[Quizno’s]. The production of documents in non-native format is not as meaningful and does not permit the plaintiff to take full advantage of available technology as documents available in their native format: Gamble v MGI Securities, 2011 ONSC 2705 at para 22.
[115] In Bard, the Court considered whether it should order a party to produce records in a format importable into Microsoft Excel: Bard at paras 96-115. The party resisting disclosure argued that it did not keep records in this file format and that it would be significantly costly for it to produce the files: Bard paras 101-104. Notwithstanding the arguments of the resisting party in Bard, the Court in that case ordered the native files to be created and produced: Bard at para 125. In doing so, the Court noted the importance of usable files in resolving disputes:
Usability is as much a concern for a litigant as it is for the Court. Producing records in an unusable format undermines procedural fairness and just results. It does not help to narrow the issues in dispute, and not only impairs the plaintiff’s ability to prove its case, but also threatens the Court’s ability to understand the evidence put before it…: Bard at para 115.
The issue of meaningful disclosure was explored most recently in Kamlu Engineering Inc. v. Cadorin Homes, 2023 ONSC 2940 (CanLII). In this case, the Plaintiff served its productions as a single pdf document containing all the relevant records. Associate Justice Robinson found this form of production:
is characterized, at best, as compliance with the strict letter of my order. However, a single file production is not compliant with the intent or spirit of my order, or frankly with the reasonable expectations of parties in civil litigation. I ordered that productions be made available in an electronic format “accessible to the receiving parties”. “Accessible” did not simply mean in a format that could be opened. It meant meaningful accessible, which includes ensuring that productions are delineated and correlated to the affidavit of documents. In the current age of e-discovery, a single pdf of all productions is, in my view, essentially useless. […] heightened time and expense resulting from the manner of production may be addressed in costs.
Despite findings such as those in Falcon Lumber Limited and Questor Technology Inc., litigants continue to struggle to meet their disclosure obligations. Lawyers play an important role in guiding clients on their obligation to provide meaningful disclosure in the current age of eDiscovery and can help limit the use of judicial resources on document production disputes. For example, resisting production of native documents and compelling a motion to resolve the matter should be strongly discouraged and give rise to cost sanctions.
Courts have previously found that unreasonable positions on production and discovery issues should give rise to cost sanctions. For example, in Selvadurai v. Antony, 2014 ONSC 5119 (CanLII), Justice Brown ordered full indemnity costs and stated:
[7] … The delays and costs currently caused by production and discovery disputes in Ontario civil proceedings constitute a most serious threat to the legitimacy of our civil justice system and the ability of that system to provide affordable and accessible justice to litigants. Unreasonable positions taken by parties on production and discovery issues merit, in my view, severe cost sanctions. The judiciary should employ cost awards to eliminate such unreasonable litigation conduct in order to restore the confidence of those who invoke the process of this Court that their cases will be managed in a fair, timely and cost-effective manner to their final determination on the merits.
One idea from the Advocates’ Society publication to reduce discovery-related motions is to amend the Rules of Civil Procedure to provide “presumptive awards of substantial indemnity costs if a party acts unreasonably or abusively in the discovery process.” Given the fragile state of our civil justice system, this idea is worth exploring.
