Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50873
civil courts, where traditionally most Canadian jurisdictions have expected any materials with a "semblance of relevance" to be disclosed. Accordingly, over the past decade companies often opted to resolve matters rather than bear the cost of disclosure. Luckily, the courts acknowledged that this situation was untenable, as the e-discovery burden had effectively created an access to justice barrier. In the past several years, many of Canada's busiest civil courts have altered their rules of procedure to introduce the principle of "proportionality." The concept entered the country's legal lexicon through Sedona Canada, which spearheaded efforts to reform court procedures in light of the new e-discovery reality. One of Sedona Canada's main principles deals with pro- portionality. It says in any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account the nature and scope of the litigation, including the importance and complex- ity of the issues as well as the interest and amounts at stake. The principle also notes the process should consider the relevance of the available elec- It's given the companies that have a lot of money the ability to say, 'OK, you can't say to me, just because I'm a $100-million business, I have to do e-discovery that's going to cost $1 million.' That's simply not defensible anymore. KELLY FRIEDMAN, Davis LLP, Sedona Canada tronically stored information, its importance to the court's adjudication in a given case, and the costs, burden, and delay that may be imposed on the parties to deal with electronically stored information. These considerations have guided recent rule changes in Ontario, Nova Scotia, and British Columbia, where litigants can now rely on proportion- ality considerations when navigating the discovery process. (See sidebar for details on the specific rules in these jurisdictions, as well as Alberta's approach.) The promise of proportionality cannot be understated. Litigants longed for the rule changes that have been recently enacted, viewing them as the best way to ensure cases were decided on the merits, rather than the cost of putting a defence together. Yet there have been mixed reviews from those on the ground in terms of just how useful they have been. Kelly Friedman is a partner with Davis LLP in Toronto and chairwoman of the steering committee of Sedona Canada. She points out Canadian jurisdictions had the benefit of looking at the experience of litigators in the United States when drafting proportionality rules. Most jurisdictions there have been trying to tackle the rising cost of discovery for some time now, PROPORTIONALITY IN CANADA'S COURTS ensure successful disclosure requests are proportional to the issues at hand. Here's a glance at the approach taken by various provinces. I British Columbia: B.C.'s new Supreme Court Civil Rules took hold July 1, 2010. Rule 1-3(2) calls for proceedings to be conducted "in ways that are proportionate to" the court's determination of the amount involved in the proceeding; the importance of the issues in dispute; and the complexity of the proceeding. Document production is also tightened in the new rules, with Rule 7-1 limiting document production to those that a party intends to rely on at trial; and all documents under a party's possession or control that could be used by any party to the proceeding to prove or disprove a material fact. That's a dramatic shift from the old approach in Rule 26(1). It had forced production of documents "relating to any matter in question in the action." Ontario: Ontario's rule changes followed recom- mendations from 2007's Civil Justice Reform Project, and came into force Jan. 1, 2010. The new Rule 1.04(1.1) outlines that the court will "make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding." The standard for examina- tion for discovery pursuant to Rule 30 was switched to "relevant to any matter in issue" from "relating to any matter in issue." Rule 29.2, Proportionality in Discovery, calls on the court to consider several factors in deciding whether a party must answer a question or produce a document, including time consider- ations, expense, prejudice, orderly pro- ceedings, or alternative availability of the information. n the last few years, Canada's courts have attempted to strike back at skyrocketing discovery costs by refor- mulating rules of civil procedure to INHOUSE APRIL 2011 • 19