Are Search Terms Producible?

Associate

August 12, 2021

The Ontario Superior Court recently had to address an interesting question: “Are the search terms used to identify relevant documents producible?”

In Falsetto v. Salvatore Fillipo Falsetto a.k.a. Sam Falsetto et al., 2021 ONSC 4168 (CanLII), the plaintiff asked the defendant to disclose search terms used to identify documents relevant to the litigation. In making this request the plaintiff relied on Rule 29.1 regarding the parties’ duty to update the discovery plan and the requirement that the parties have regard to the Sedona Canada Principles Addressing Electronic Discovery when dealing with the discovery plan. … Read More

Court of Appeal Weighs-in on Relevance and Privilege

Candice Chan-Glasgow, Director, Review Services and Counsel

August 20, 2020

A recent Court of Appeal of Alberta decision, Tolton v Tolton, 2020 ABCA 218, provides a helpful reminder on the law of relevance and waiver of privilege.

Betty Tolton and Elwood Tolton separated in 1990, and Betty filed for divorce in 2002. The Toltons entered into minutes of settlement in 2007 which contained a provision indicating that Elwood was required to disclose further information related to a dispute about certain assets and accounts receivable. In 2008, Betty filed an application seeking disclosure of the items listed in the minutes of settlement. … Read More

Litigation Privilege Revisited

The Supreme Court of Canada recently reviewed the characteristics of litigation privilege in Lizotte v Aviva Insurance Company of Canada [1].

In this case, an Aviva claims adjuster, M.B., investigated a fire that damaged the residence of a person insured by Aviva. M.B. was later accused of making errors in managing the file. The syndic of the Chambre de l’assurance de dommages opened an investigation with respect to M.B. and requested Aviva’s entire file relating to the insured person’s claim. The request was based on s. 337 of the Act respecting the distribution of financial products and services (“ADFPS”), which says that insurers “must, at the request of a syndic, forward any required documentation or information concerning the activities of a representative”.… Read More