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The Electronic Document Rules Working Group was established in 2016 by the Uniform Law Conference of Canada. The purpose of the group, as set out in their 2017 Report, was to “to develop harmonized rules governing the production of documents in civil and administrative proceedings.” In other words, they were trying to bring ediscovery rules in various provinces into line with one another.

The Canadian Approach: “Ad hoc” and “Reactive”

The Working Group identified the Canadian legal response to ediscovery to be “ad hoc,” “reactive,” and a “patchwork of rules, practice directions, and guidelines.” It recognized that different provinces used different, sometimes conflicting, approaches to handling electronically stored information (ESI) and that a more uniform and predictable approach was preferable.

Proportionality

I don’t presume to undertake an extensive review of the Working Group’s progress to date. Rather, I suggest that the most pressing issues present in Canadian ediscovery today can be gleaned from the Electronic Document Rules Working Group’s choice of principles to guide the project.

Tellingly, the following passage appears in the Working Group’s 2017 Report:

Proportionality: The proposed rule should incorporate proportionality as an overarching guiding principle, with a view to enhancing access to justice.

It’s worth noting that the Working Group did not identify any other principle as an “overarching guiding principle.” The Working Group seems to recognize that the incredible cost associated with complex ediscovery has had a deleterious effect on the ability of litigants of modest means to access the courts. These litigants risk massive cost awards in the event they are unsuccessful in their case.

The case law is replete with examples of huge cost awards coming on the heels of extensive ediscovery, including Ernst & Young Inc. v. Essar Global Fund Ltd et al, 2017 ONSC 4017, in which some of the defendants were required to pay over one million dollars for accelerated ediscovery.

Usually, these costs are borne by large corporate litigants, but I suspect there is some self-selection at play. Very few attorneys would advise a litigant of average means to pursue an ediscovery-involved claim and risk a cost award of this size.

About the Author:

Steven Toews

Steven Toews

Steven Towes is a former prosecutor and defense attorney, who now resides with his wife and labradoodle in Bermuda and offers legal and business writing and consulting services. Tweet him @steventoews.

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