The Plaintiffs had concerns with the Defendants’ document production, and applied for further and better production. The Application was successful and the Defendants provided further records, but the Plaintiffs were not satisfied, believing that the Defendants had breached the Order for further and better production. The Plaintiffs applied to strike the Defendant’s Statement of Defence, a Declaration that the Defendants were in Civil Contempt, and Judgment in favour of the Plaintiffs. In the alternative, the Plaintiffs sought further and better production.

Jones J. considered the requirements for production as set out in Rules 5.5 and 5.6, noting that the parties are required to exchange Affidavits of Records disclosing all records that are relevant and material to the issues in the Action, and are or have been under the party’s control. Pursuant to Rule 5.2, a record is relevant and material only if it could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings, or to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings. Justice Jones set out the test for relevance and materiality considering prior leading authority and commented:

Mustard tells us that facts must be “directly in issue”, not merely facts which might “reasonably relate” to issues raised in pleadings. Only records which significantly help to determine one or more of the issues raised in the pleadings need be produced, not records which “could reasonably have some weight.

With respect to the declaration of Civil Contempt pursuant to Rules 10.52 and 10.53, His Lordship considered Civil Contempt in the context of patterns of delay and failure to adhere to Orders of the Court. Jones J. then reviewed the Defendants’ production and the circumstances giving rise to the delays, and determined that the Defendants were not in contempt of Court, either for the delay in production or as a result of failing to provide a complete production as required by the Rules. Justice Jones also considered whether the Defendants were in contempt of Court for failing to provide their production in compliance with Rule 5.7. The Defendants had produced an entire hard drive, containing 83,000 electronic documents. The Plaintiffs did not take issue with the production of the hard drive but they objected to the excessive bundling and the manner in which it the contents of the hard drive were disclosed. The Court noted the purpose of the Rules as set out in Rule 1.2. Jones J. also noted that Civil Practice Note #4 contains guidelines for the use of technology. Jones J. stated that it is clear that a computer hard drive is not a document in itself and noted that bundling is permissible under the Rules; however, pursuant to Rule 5.7(2), the Records must all be of the same nature and the bundle must be described in sufficient detail to enable another party to understand what it contains. Further, Jones J. stated that, under the Rules, the Defendants have an obligation to disclose and produce those records that are relevant and material. Avoiding the costs associated with production is no excuse for non-production.

The Court found that the Defendants had not disclosed the relevant and material documents on the hard drive in accordance with the Rules. Justice Jones held that a further Supplemental Affidavit of Records was required. Jones J. declined to hold the Defendants in Civil Contempt or to strike the Statement of Defence.