jones j

5.10: Subsequent disclosure of records
5.2: When something is relevant and material
5.5: When affidavit of records must be served
5.7: Producible records
5.9: Who makes affidavit of records
10.52: Declaration of civil contempt

Case Summary

The Defendants were ordered, in a prior Application, to produce a further and better Affidavit of Records (the “Order”). The Plaintiffs alleged that the Respondents failed to comply with the Order and applied for a Declaration that the Defendants were in contempt of court. Justice Jones noted that the applicable Rule relating to civil contempt as it related to this case was Rule 10.52(3)(a)(i). His Lordship also noted that the standard of proof in civil contempt is proof beyond a reasonable doubt. It is not necessary that there be an intention to disobey a Court Order for a finding of contempt.

The Plaintiffs argued that the Defendants should be held in contempt because they swore a common Affidavit of Records. The Plaintiffs referred to Rule 5.5 which requires that every party must serve an Affidavit of Records, as well as Rule 5.9 which confirms who may swear an Affidavit of Records on behalf of others. However, Jones J. noted that Rule 5.10 governs subsequent disclosure of records, and it was not clear that the individual Defendants had breached Rule 5.10 in delivering a single Affidavit of Records. The language of the Order also did not support the contention that the Defendants were in contempt for submitting a common Affidavit.

The Plaintiffs also alleged that the documents within the Affidavit of Records were not listed properly. Jones J. stated that, while the production was sloppy and disorganized, it did not breach the Order and it did not amount to contempt. The Plaintiffs alleged further that the contents of the electronic production were not reviewed for relevance and materiality, resulting in an overbroad production of hundreds of thousands of documents. The Court reviewed Rule 5.2 and noted that it is necessary to look at the Pleadings to decide relevance and materiality. The Court reviewed the Pleadings and the evidence and determined that the Plaintiffs required a broad production from the Defendants and that all produced records were therefore relevant.

The Applicants also took issue with the manner in which the relevant and material records were bundled. The Court noted that bundling is permitted in an Affidavit of Records under Rule 5.7(2), provided that the records are all of the same nature and the bundle is described in sufficient detail to enable another party to understand what it contains. Jones J. noted that, if the Affidavit gives no indication of its contents, and no other finding tool is provided, it is likely not a valid Affidavit of Records. His Lordship ultimately held that a finding of contempt would be inappropriate in the circumstances since the Defendants were required to produce the records in a short period of time. In the result, the contempt Application was dismissed and Justice Jones referred any future production issues to Case Management.

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