CITATION: Camino Construction Inc. v. Matheson Constructors Limited 2015 ONSC 3614
COURT FILE NO.: CV-12-456916
DATE: June 4, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Camino Construction Inc. v. Matheson Constructors Limited
BEFORE: MASTER C. WIEBE
COUNSEL: Timothy Morgan for Camino Construction Inc. (the moving party); Daniel Boan, Connor O’Neal and Martin Felsky for the Matheson Constructors Limited (the responding party);
HEARD: April 13, 2015 at Toronto, Ontario.
REASONS FOR DECISION
I. INTRODUCTION
[1] Camino Construction Inc. (“Camino”) is a sub-subcontractor to Mattheson Constructors Limited (“Mattheson”) for the form and concrete work on a project known as the Dufferin Organics Waste Management Facility (“the Project”). This sub-subcontract will be called the “Camino Contract.” Mattheson in turn is a subcontractor to the contractor on the Project, W.S. Nicholls Construction Inc. (“Nicholls”), for the civil works. This subcontract will be called the “Nicholls Contract.”
[2] Camino brought this motion for an order requiring that Mattheson produce further documents as described in the Notice of Motion, that such documents that are in electronic format be produced in electronic format, that such documents that are in hard copy by produced in PDF format, and that Mattheson produce electronic versions of its affidavit of documents.
II. BACKGROUND
[3] On May 11, 2012 Camino registered a claim for lien on the Project in the amount of $394,628.95. On June 22, 2012 Camino commenced an action against Matteson purporting to perfect its lien and claimed an additional $220,000 in damages. On July 27, 2012 Mattheson served a Statement of Defence and Counterclaim which alleged that Camino was responsible for deficiencies, incomplete work and delays, and raised a set-off and counterclaim for damages in the amount of $1,147,210.78.
[4] The action was referred to me and the first trial management conference took place on April 22, 2013. At that time, Camino was represented by Fabio Soccol. I made orders for the completion of affidavits of documents, productions, a Scott Schedule and discoveries. On July 3, 2013, Camino delivered an affidavit of documents that contained 311 tabs of documents in hard copy. On July 11, 2013 Mattheson produced an affidavit of documents that contained 197 tabs of documents in hard copy.
[5] At the next trial management conference of August 19, 2013, at the request of Mr. Boan, I scheduled a motion by Mattheson attacking the validity of the Camino lien. The motion did not proceed. At the next trial management conference on December 2, 2013, counsel confirmed that the productions and Scott Schedule (19 pages) were done, but not discoveries. I set a new deadline for the delivery of supplementary affidavits of documents and for discoveries, namely June 30, 2014. In December, 2013, Mattheson delivered a supplementary affidavit of documents containing 5 tabs of emails and photographs in hard copy.
[6] On May 28, 2014, Camino hired a new lawyer, Jonathan. Speigel, which resulted in the cancellation of four discovery dates that had been set for late May, 2014. At the next trial management conference on June 16, 2014 I set yet another new deadline for the completion of discoveries, namely October 31, 2014. The parties arranged four days of discoveries to take place on December 1, 2, 3 and 4, 2014.
[7] On November 18, 2014, Mr. Speigel sent Mr. Boan a letter expressing Mr. Speigel’s view that the productions of both parties were inadequate given the issues in the case, particularly those concerning delay. On November 19, 2014, Mr. Speigel provided Mr. Boan with a dropbox link to additional Camino documents in electronic form. On December 1, 2014 Mr. Speigel provided Mr. Boan with another dropbox link to a PST file of Camino emails. The scheduled discoveries were cancelled due to these issues, including the late productions.
[8] The next trial management conference took place on March 5, 2015. I ordered that Camino produce its further documents in a supplementary affidavit of documents (which it has done), and, at the request of Mr. Speigel, I set up this motion by Camino for an order requiring Mattheson to produce a further and better affidavit of documents.
[9] On March 31, 2015, Mattheson produced a Further Supplementary Affidavit of Documents containing 156 tabs of documents in hard copy.
[10] The motion record was served on or about April 2, 2014. It contains an affidavit sworn by Mr. Spiegel on April 2, 2015. Mattheson delivered its responding motion record on or about April 9, 2015. It contains an affidavit sworn by Allan Youmans, president of Mattheson.
III. ISSUES
[11] By the time the motion was argued, the parties had resolved many of the outstanding issues concerning productions. Mr. Morgan advised that the parties would be memorializing what they had agreed to for inclusion in my final order. He advised that this agreement between the parties includes the requirement for Mattheson to produce the concrete tickets subsequent to January 9, 2012.
[12] The remaining issues that were argued before me were the following:
a) Should all of the payment certificates concerning the Nicholls Contract be produced by Mattheson?
b) Did Mattheson and Camino agree that they would produce their emails in native format as a PST file?
c) Should the emails be produced in such a format anyway or in a form called “near native”?
d) Should the affidavits of documents be in electronic form in either Word or Excel?
IV. ANALYSIS
(a) Should all of the payment certificates concerning the Nicholls Contract be produced by Mattheson?
[13] Mr. Boan confirmed in argument that Mattheson had not produced all of the payment certificates issued under the Nicholls Contract. He advised that Mattheson had three sub-subcontractors on this project with scopes of work concerning the forming, rebar and excavating work. He advised that there were about 26 payment certificates under the Nicholls Contract, and that Mattheson had produced only the relevant ones, namely the ones concerning the rebar sub-subcontract and the forming sub-subcontract, Camino’s sub-subcontract. He argued that Camino was on a “fishing expedition” with its broad demand for all payment certificates.
[14] Mr. Morgan argued that there should be production of all of the payment certificates given the breadth of the issues raised in Mattheson’s substantial counterclaim. He argued in particular that Mattheson had raised issues of delay which broadened the relevance of documentation to include payment certificates for all of Mattheson’s work. Even if excavation may have preceded the forming work, it may have caused delays to the forming work that would be relevant to the delay issues.
[15] I agree with Mr. Morgan here. Delay claims attract a broad range of relevant activity, namely any activity that impacts the critical path of Mattheson’s work in question. To properly decipher the delay issues, the expert witnesses will have to be able review all documents relevant to this issue. Payment certificates, in my experience, are critical documents in this regard. They are contemporaneous records usually produced by a third party professional for the purpose of monitoring the monthly development of the project in all of its aspects, namely before any litigation arises. As such, they tend to have considerable significance in relation to delay issues. I see no justification in limiting the scope of this production at this time, before the experts have opined on the subject, particularly since Mattheson is the one who has raised the delay issue.
[16] I order that Matteson produce all of the payment certificates.
(b) Did Mattheson and Camino agree to produce their relevant emails in native format as a PST file?
[17] Mr. Morgan argued that the parties came to an agreement that both sides would produce their documents electronically and in native format.
[18] I understand that Outlook contains a repository for emails called a PST. Mr. Spiegel stated in his affidavit that on November 8, 2014 he offered in an email to send Mr. Boan the PST files containing the relevant Camino emails in return for the same from Mattheson. In another email dated November 18, 2014, he reiterated this offer and stated that, in his view, the Matteson affidavit of documents was obviously lacking all of the relevant emails.
[19] Mr. Boan responded that same day, November 18, 2014, stating that all relevant, non-privileged documents had been produced. He did offer to review the Mattheson productions in light of Mr. Speigel’s comments. On the same day, Mr. Spiegel responded stating that he was disturbed by Mr. Boan’s failure to confirm that he would provide the Mattheson documents in native format. On November 19, 2014, Mr. Spiegel provided Mr. Boan with a dropbox link to certain Camino electronic documents.
[20] According to Mr. Morgan, the key correspondence came from Mr. Boan on November 25, 2014. In this email, Mr. Boan stated that, having reviewed its documents again, Mattheson “will produce, in their electronic format, documents that have been stored electronically.” On December 1, 2015, five days later, Mr. Spiegel provided Mr. Boan with the PST file containing the Camino emails in native format.
[21] Mr. Boan argued that there was no agreement, and that Mr. Spiegel simply volunteered to produce the PST of Camino emails.
[22] In reviewing this chronology of events as noted above, I am driven to the conclusion that there was an agreement between the parties to produce the emails in their native format. Mr. Spiegel stated that that was what Camino wanted. He reiterated that demand on November 18, 2015 when he became concerned about Mr. Boan’s apparent lack of commitment in this regard. On November 25, 2014, Mr. Boan stated that Matteson had reviewed its documents in light of what Mr. Spiegel had stated, and that Mattheson had decided that that was what it was going to do. Mr. Spiegel subsequently produced the PST of Camino emails on December 1, 2015.
[23] I find that there was an agreement between the parties to have the relevant emails produced in their native format. Parties should be kept to their agreements.
(c) Should the emails be produced in native format or in “near native” format?
[24] In argument, Mr. Felsky, a lawyer from Mr. Boan’s firm with expertise in electronic production, stated that Mattheson was now prepared to produce the emails in something he called “near native” format. This is a format that, he said, maintains the integrity of the document while allowing the documents to be searched electronically. He and Mr. Boan argued that using a PST exchange of emails creates risk. One such risk is, according to Mr. Felsky, “messing with” the metadata, namely the electronic information embedded in a document that is not immediately visible. He argued that documents remain malleable in native format and can be manipulated.
[25] Mr. Morgan responded that this was an issue that was being raised for the first time in argument. He went on to argue that this was inconsistent with what Mattheson had agreed to. Furthermore, it was inconsistent with the Sedona Canada Principles that have been formally adopted and approved of by the Rules of Civil Procedure in relation to electronic production and are followed by the courts; see Palmerston Grain, A Partnership v. Royal Bank of Canada, 2014 ONSC 5134 at paragraph 46. Sedona principle 8 specifies that the parties are to agree as early as possible “on the format in which electronically stored information will be produced.” This principle underscores the importance of agreements and the need to enforce them. As to the risks posed by Mr. Felsky, Mr. Morgan argued that they are irrelevant. The native format is what the parties agreed to and is the format in which the documents were created. Manipulation of the document is misconduct that can be dealt appropriately when that becomes an issue.
[26] I agree with Mr. Morgan. The Sedona Canada Principles make it clear that the agreement of the parties as to the format of electronic production should be upheld. Whether documents are manipulated should be dealt with as an issue when and if that becomes an issue.
[27] Furthermore, Mr. Morgan brought to my attention the decision of Master Sproat in Gamble v. MGI Securities Inc., 2011 ONSC 2705 (Ont. Master) wherein the Master held in paragraph 22 that a party is entitled to production of electronic documents in the form in which they were created and stored, and that production of documentation in DVD or paper form was not meaningful production as it did not permit the other party to take full advantage of available document-management technology. I agree.
[28] The subject documents should be produced in the format in which they were created.
(d) Should the affidavits of documents be in electronic format, either Word or Excel?
[29] The final issue concerns the format of the affidavit of documents: should it be in electronic format, either Work or Excel?
[30] Mr. Morgan argued that it should, as there is an obligation with electronic production to give meaningful access to productions, and that such meaningful access is only possible through an affidavit of documents in electronic form. He referred me to the decision of Justice Cumming in Wilson v. Servier Canada Inc., ONSC, CV-98-158832, September 27, 2002. In this case, the defendant had gone to the trouble of preparing an electronic database to assist it in organizing the substantial volume of productions in the case. The case involved some 500,000 pages of productions. The defendant argued that this was a proprietary document that had been prepared at considerable expense and should not to be produced. Justice Cumming disagreed and held in paragraph 12 that the data base had to be produced in order to give the plaintiff meaningful access to the documents.
[31] Mr. Boan objected to this demand, arguing that the parties had produced hard copy affidavits of documents to date and that this requirement would entail a considerable amount of needless repetition. He argued that the hard copy versions were sufficient given the size of the potential productions.
[32] I agree with Mr. Morgan that a party is obligated to give meaningful access to its productions. An electronic affidavit of documents facilitates the organization and searching of voluminous documentation. While the case at bar does not appear to involve as many as 500,000 pages, the productions are significant in size. Counsel advised that there will be in the end about 1,000 documents from Camino and from 600 to 700 documents from Matteson. If there is some repetition of work on account of the previous hard copy affidavits of documents, such repetition is, in my view, in the end worth it, as the work of the discoveries and trial will be made more efficient.
[33] I also note, as Mr. Morgan pointed out in reply, that the parties have already agreed that a large part of the production will be in electronic format. Producing an electronic affidavit of documents would facilitate the organization of the electronic documentation. I note that Comment 8.c. of the The Sedona Canada Principles states that the document lists to be exchanged between the parties in relation to electronic productions “should be exchanged in electronic format, which facilitates searching, sorting and reporting.”
[34] I, therefore, order that the affidavits of documents be in electronic format, either Word or Excel.
V. CONCLUSION
[35] I, therefore, grant the remainder of the motion that has not already been resolved.
[36] Concerning the costs of this motion, both counsel submitted costs outlines at the end of the argument. Camino’s costs outline shows partial indemnity costs totaling $5,951.37. Matheson’s costs outline shows full indemnity costs totaling $9,744.20 and partial indemnity costs totaling $8,614.20.
[37] If costs of the motion cannot be agreed upon, those parties seeking costs of this motion must serve and file written submission of no more than two pages concerning same on or before June 15, 2015. Any responding submissions must be in writing, cannot be longer than two pages and must be served and filed on or before June 26, 2015. Any reply cannot be longer than one page and must be served and filed on or before June 30, 2015.
DATE: June 4, 2015 __________________________
MASTER C. WIEBE