Casual Legal – Document ‘dumping’ can be costly

DISCLAIMER: This article is meant to provide information to Alberta Municipalities members only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. This content is not intended for the general public.

By Jenna Chamberlain
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Parties to litigation are required to produce all the relevant and material documents in their possession. This can be an enormous undertaking, involving hundreds or thousands of documents. While it may be tempting to simply produce everything, parties need to ensure they only produce relevant and material documents.

In the case of Gowing Contractors Ltd v Walsh Construction Company Canada, the Ontario Superior Court of Justice considered the issue of overproducing irrelevant documents in litigation. The defendants produced a significant number of documents. The plaintiffs reviewed the production and found around 270,000 documents which were irrelevant to the litigation. This was 25 per cent of the defendants’ total production.

The plaintiffs brought an application to the court to remedy this issue. The court found that, although some irrelevant documents are expected in litigation, the number of irrelevant documents produced in this case was egregious. It is the producing party’s obligation to decipher which documents are relevant and to produce those documents. The court found the defendants breached this obligation. 
The court ordered that the defendants produce a further and better affidavit of documents, eliminating all irrelevant documents. The plaintiffs were awarded throw-away costs of nearly $53,000 for the time spent, including the time to cull and review the defendants’ documents.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or riskcontrol [at] abmunis.ca (email) to connect with Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.