5.6: Form and contents of affidavit of records
5.7: Producible records
6.14: Appeal from master’s judgment or order

Case Summary

The Defendant to a claim of wrongful dismissal produced an Affidavit of Records disclosing a very large number of e-mails. The Plaintiff brought an Application challenging the relevance and materiality of the voluminous disclosure, ultimately receiving an Order from a Master directing the Defendant to particularize its Statement of Defence and to take further efforts to better filter its production for relevance and materiality.

The Defendant appealed the Master’s Decision, arguing that its Affidavit of Records properly disclosed all relevant and material records as required pursuant to Rule 5.6, in the descriptive, bundled format contemplated in Rule 5.7. Justice Fraser, upon noting the standard of review of correctness on an Appeal from a Master’s Decision on all issues pursuant to Rule 6.14, agreed that the Statement of Defence should be amended. Justice Fraser was not, however, prepared to uphold the direction on relevance and materiality, remarking that His Lordship was not in a position to determine relevance and materiality, and rather, finding that the Defendant had met the low threshold of establishing a plausible line of argument that the e-mails as a whole would provide circumstantial evidence relevant and material to wrongful dismissal. Accordingly, Justice Fraser deferred a Decision on Costs to the Trial Judge, suggesting that “severely enhanced” Costs be awarded in the event the e-mails are determined not to be relevant and material.

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