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The Ontario Rules Committee recently gave approval in principle to a package of discovery reform initiatives. The initiatives stem from two important reports received by the Ontario Attorney General in recent years, the Discovery Task Force Report, which was delivered by the Honourable Mr. Justice Campbell in late 2003, and the Summary of Findings and Recommendations of the Civil Justice Reform Project, which was delivered by the Honourable Coulter Osborne, Q.C. in June 2006.

A very important change for Ontario litigation is the express addition of the concept of "proportionality" to the Ontario Rules of Civil Procedure. Rule 1.04, an interpretive provision of the Rules, is being amended to provide that the court "shall make orders and give directions that are proportionate to the importance and complexity of the issues in the proceeding". The basic concept is that the nature and extent of obligations imposed on parties to litigation should bear some relation to the complexity and importance of the issues in the litigation.

Proportionality is a concept that has been much discussed in the area of electronic discovery. Even cases where very little money at stake can involve huge amounts of potentially relevant electronic information. How much money needs to be spent on mining that information in a given case? In the United States, there have been commercial cases in which the parties have spent millions of dollars to produce electronic evidence where the dollar values at stake paled in comparison. In such cases, no cost-benefit analysis was applied to temper the parties' production obligations. The hope is that, with the formal introduction of the proportionality principle into the Rules of Civil Procedure, some rationality will be brought to bear on the efforts that need to be made to produce electronic evidence in Ontario litigation.

Another important amendment to the Rules will require parties to agree to a discovery plan before obtaining evidence under documentary, oral or inspection discovery rules. In preparing a discovery plan, the parties are to have regard to the Sedona Canada Principles. The court will be able to refuse relief or costs on a discovery motion if the parties have not entered into a discovery plan.

The Sedona Canada Principles are a set of best practices principles for handling electronic discovery. The Sedona Canada Principles were developed by a working group of The Sedona Conference®, a non-profit think-tank on legal and policy issues, and published in January 2008. Principle 2 of the Sedona Canada Principles is the proportionality principle, which provides as follows:

In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court's adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.

No doubt the Sedona Canada Principles, in particular Principle 2 and the Comments which follow that Principle, will be used to interpret the new proportionality concept under the Rules of Civil Procedure. The Sedona Canada Principles are available free of charge at http://www.thesedonaconference.org/content/miscFiles/canada_pincpls_FINAL_108.pdf.

Professional Note

Kelly Friedman is a litigation partner practising in our Toronto office. She is an active member of The Sedona Conference® Working Group 7 (Sedona Canada) and is co-chair of the First Annual Sedona Canada Program on Getting Ahead of the eDiscovery Curve which will be held on October 23 and 24, 2008 in Toronto, Ontario.

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The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

 

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