Court File and Parties

Court File No.: 14-61743 Date: 2019/02/26 Ontario Superior Court of Justice

Between: CITY OF OTTAWA Plaintiff – and – SUNCOR ENERGY INC. SUNCOR ENERGIE INC., TRANSPORT JACQUES AUGER INC., CUTBACK TERMINAL LTD., and F. VACULIK ENGINEERING LTD. Defendants – and – GIFFELS ASSOCIATES LIMITED, ELLISDON CORPORATION, ALBANY PMP LTD., TORNATECHINC., and GALLAGHER TECHNICAL SERVICES Third Parties

Counsel: Donna M. Crabtree for the Defendants, Suncor Energy Inc. Suncor Energie Inc. and Transport Jacques Auger Inc. James Brown, for the Third Party EllisDon Corporation

Heard: November 1, 2018

Endorsement Corthorn J.

Introduction

[1] In August 2012, a diesel fuel spill occurred at an articulated bus garage (“the ABG”). The City of Ottawa owns the property at which the oil spill occurred. In this action, the City of Ottawa seeks damages of $2,000,000 arising from the spill.

[2] Suncor Energy Inc. Suncor Energie Inc. (“Suncor”) was the supplier of the diesel fuel to the ABG. Transport Jacques Auger Inc. was the sub-contractor to Suncor and responsible for the delivery of diesel fuel to the ABG. Both parties (“Suncor/Auger”) are collectively defending the claim made against them. Suncor/Auger commenced third party proceedings against a number of corporations involved in the construction of the ABG. One of the third parties is EllisDon Corporation (“EllisDon”); it was the contractor in charge of the construction of the ABG.

[3] Suncor/Auger brings this motion to address undertakings given at the examinations for discovery of a number of parties. The main issue relates to undertakings given by EllisDon to provide documents from a server it relied on for document management during and after the construction project.

[4] Subsequent to the examination for discovery of its representative, EllisDon produced a copy of the server. EllisDon maintains that the production of the server in its current format is sufficient to answer the undertakings given.

[5] Suncor/Auger argues that, because the server was not produced in a format that is easily accessible and searchable (the latter including the use of an identifier for each document), the undertaking remains unsatisfied. Suncor/Auger submits that EllisDon is required to do more to fulfill its discovery obligations.

Background

[6] There is no evidence that, prior to the commencement of examinations for discovery, counsel for the parties, to the main action or to the third party claim, engaged in any discussions in an effort to reach an agreement with respect to document management (including electronic documents) for the purpose of discovery and, later, trial.

[7] In June and July 2017, the examinations for discovery of representatives of the parties to both the main action and the third party claim proceeded in the absence of a document-management agreement.

a) Discovery of EllisDon

[8] Marc Grenier was produced as the representative of EllisDon for examination for discovery in July 2017. There is no evidence before the court as to Mr. Grenier’s position with EllisDon, his role and responsibilities in the construction of the ABG, or whether, in a representative capacity, he swore an affidavit of documents on behalf of EllisDon.

[9] The only evidence before the court with respect to the EllisDon affidavit of documents is that (a) it was “produced” in November 2015, (b) copies of the Schedule “A” documents were produced at the same time, and (c) the Schedule “A” documents comprise approximately 870 pages.

[10] A copy of the EllisDon affidavit of documents is not included in the record before the court. There is no evidence as to whether the affidavit of documents produced in December 2015 was sworn or unsworn.

[11] During his examination for discovery, Mr. Grenier was asked whether EllisDon had set up a server for project communications on the ABG. In response, Mr. Grenier explained that EllisDon used its “EdgeBuilder System” (“the EdgeBuilder”)—a database for document management both during and after the project. In response to a follow-up question, counsel for EllisDon gave an undertaking on behalf of his client to “find out where the server is and review it for any documents that would pertain to the Fuel Management System, the Process System at the [ABG].”

[12] The record does not include any evidence in which either the “Process System” or the “Fuel Management System” are defined. Excerpts of the transcript from the examination for discovery of Mr. Grenier have been produced; they include references to the aforementioned systems, as well as to an “Ultrasonic System”, a “Veeder Root System”, and a “Tank Management System.” These references do not provide any information to assist the court to determine what is meant by “Process System” or “Fuel Management System”.

[13] In response to the other follow-up questions, Mr. Grenier confirmed that the documents on the EdgeBuilder include field notes, construction notes, minutes of construction meetings, and shop drawings. Counsel for EllisDon gave an undertaking on behalf of his client to “look [at the EdgeBuilder] and produce whatever is relevant to the Process System.”

[14] There was, in any event, no qualification to the undertakings given with respect to either the Process System or the Fuel Management System. Counsel for Suncor/Auger and counsel for EllisDon clearly understood what was meant by those terms and agreed that the documents requested pursuant to the undertaking are relevant.

[15] The disagreement between Suncor/Auger and EllisDon arises from answers to the undertakings with respect to the EdgeBuilder, the Project System, and the Fuel Management System.

[16] Counsel for EllisDon acknowledge that they encountered difficulties in determining how to efficiently extract, and thereafter produce, documents from the EdgeBuilder in satisfaction of the undertakings given. Ultimately, counsel for EllisDon made the decision that the database itself would have to be produced, subject to the following:

• The receipt of a Solicitor’s Undertaking from the opposing parties;
• Steps taken to remove irrelevant documents from the copy of the database to be produced; and
• The reproduction of the database on “portable hardware”.

[17] The request for a Solicitor’s Undertaking was made in June 2018. Counsel for Suncor/Auger and counsel for one other party to the litigation each executed such an undertaking. In August 2018, 13 months after the undertakings were given by or on behalf of EllisDon, a portable drive was produced by EllisDon to Suncor/Auger through their respective counsel (“the Portable Drive”).

[18] Counsel for Suncor/Auger have encountered a number of problems in accessing documents on the Portable Drive. In addition, counsel for Suncor/Auger question whether the Portable Drive includes many irrelevant documents, the inclusion of which makes accessing the relevant documents that much more problematic.

[19] In response, EllisDon’s evidence is that:

a) The database from the EdgeBuilder is produced on the Portable Drive: b) The database includes 37,899 documents; c) The documents are stored by category; d) The Portable Drive includes a “Search for” field providing the requisite level of searchability of documents; and e) All documents, once accessed, can be saved or printed by using any PDF management software.

[20] In addition, EllisDon is prepared to produce Mr. Grenier for the continuation of his examination for discovery. Mr. Grenier is described by counsel for EllisDon as having “sufficient knowledge to answer questions with respect to the database.”

[21] Three other undertakings given by or on behalf of EllisDon remained outstanding as of the return date for this motion. Prior to the return date, an agreement was reached that those undertakings would be answered by November 30, 2018. A term to that affect is included in the disposition section of this endorsement.

b) Discovery of Other Parties

[22] Also included in the disposition is a term providing for the adjournment of the motion as it relates to undertakings given by or on behalf of the City of Ottawa and Cutback Terminal Ltd. The adjournment is sine die, on consent, and without costs.

[23] There is no ruling required with respect to undertakings given by or on behalf of Giffels Associates Limited (“Giffels”). As of the return date of this motion, all undertakings given by or on behalf of Giffels had been answered. A term providing for the dismissal, on consent and without costs, of this motion as it relates to Giffels is included in the disposition section of this endorsement.

The Issue

[24] The sole issue to be determined on this motion is what additional steps, if any, are required on EllisDon’s part to satisfy the two undertakings given with respect to production of documents on the EdgeBuilder?

Analysis

a) The Law

[25] In Solid Waste Reclamation v. Philip Enterprises, Lane, J. concluded that, “[the] sheer quantity of documents in many modern litigations demands a precise identification system for swift and certain retrieval of documents in examination for discovery and trial” ((1991) , 2 O.R. (3d) 481, at p. 485 (Ct. J. Gen. Div.)). Over 25 years ago, Lane J. was attuned to the role of computers and the need for an efficient method of identification of large number of documents stored electronically. He recognized that the preparation of a Schedule A (to an affidavit of documents) containing a detailed description of every document would be both “a truly monumental task” and impractical (Solid Waste, at p. 485).

[26] Lane J. concluded that the solution is the use of a unique number for each document. The unique number may be either numeric or alpha-numeric (Solid Waste, at p. 485). Lane J. had experience with matters involving thousands of documents. He recognized the cost-benefit of establishing proper identification of each document with a unique identifier at an early stage in litigation—including prior to examinations for discovery. The initial cost of uniquely identifying each document “is surprisingly small and is repaid many times over by savings in time during discovery, preparation of witnesses, and trial” (Solid Waste, at p. 487).

[27] Lane J. went so far as to specify (a) where and how a unique identifier is to appear on each document, and (b) the level of functionality (for copying and retrieval) the unique identifier is to provide (Solid Waste, at p. 487).

[28] More recently, the subject of electronic documentary discovery (“e-discovery”) was addressed by the Sedona Canada Principles (The Sedona Conference, The Sedona Canada Principles Addressing Electronic Discovery, 2nd ed. (Canada: Sedona Canada, 2015)). Pursuant to those principles, counsel are required to actively co-separate in formulating a discovery plan. The plan is to include:

Agreement on the subset of potentially important relevant information and how it is to be located, preserved, exchanged, organized, described and retrieved. Some form of mutually acceptable electronic indexing that permits rapid identification and retrieval of each document should be adopted for the purposes of production, discovery and trial. (See: Thompson v. Arcadia Labs Inc., 2016 ONSC 3745, at para. 15.)

[29] Participation in discovery planning is one element of counsel’s duty as an officer of the court. In fulfilling that aspect of their duty, counsel are required to apply the principles of proportionality while seeking maximum procedural efficiency.

[30] It is incumbent upon the party providing the documents to index them (using a unique number if necessary) and identify those that are relevant (Thompson, at para. 20). It is not sufficient to produce a large volume of documents—in a box, in filing cabinet, or on a portable hard drive—and invite the opposing party to look through the documents (Thompson, at para. 19).

[31] The party producing the documents must identify them with precision; it is not entitled “to unilaterally shift the burden of locating and identifying documents to the other party” (Thompson, at paras. 19, 20).

b) EllisDon and the EdgeBuilder

[32] It is unfortunate that the parties to this litigation did not, prior to examinations for discovery, recognize that a large number of documents would be relevant to the various issues to be determined. Had the parties done so, their respective counsel would have engaged in the kind of discovery planning called for by the Sedona Canada Principles and discussed in Thompson.

[33] The fact that discovery planning was not done at an earlier stage in this litigation does not preclude the parties from engaging in such planning now. Regardless of this motion, it would still be of benefit to all of the parties for their respective counsel to engage in discovery planning. The parties must look ahead to not only continued or, if requested, further examinations for discovery; they must look ahead to the trial of the main action and third party claim.

[34] I accept EllisDon’s evidence that it encountered difficulties in producing the EdgeBuilder. The difficulties encountered, however, do not entitle EllisDon to avoid its obligation to work together with the other parties to (a) agree upon the method of identifying, indexing, and retrieving documents on the Portable Drive, and (b) address technology issues to ensure that the documents on the Portable Drive can be easily identified and retrieved for the purpose of discovery, preparation of witnesses, and trial.

[35] I find EllisDon failed to do the minimum required before producing the Portable Drive. It failed to place a unique identifier on each document on the Portable Drive. I also find that EllisDon failed to engage in the discovery planning process when requested by Suncor/Auger to do so because of the latter’s inability to efficiently search and retrieve documents on the Portable Drive.

[36] EllisDon’s position is that they produced a portable drive that is “searchable”. In support of that position, EllisDon relies on (a) instructions provided for the use of the Edge Builder as it appears on the Portable Drive, (b) organization of the documents by category, such as “Admin”, “Quality Control”, and “Field and Work Documentation”, with the use of tabs for each category, and (c) a “Search for” field that allows users to search for any term within each section or sub-section.

[37] The Portable Drive may well be “searchable”. Searchability, however, is not sufficient to meet the e-discovery requirements in modern litigation. The searchability available on the Portable Drive does not provide the kind of efficiency of identification and retrieval required for discovery, witness preparation, and trial.

[38] In the absence of evidence from individuals who work in the field of Information Technology, it is difficult to understand and make findings about (a) the technology required to permit access to documents on the Portable Drive, or (b) where the responsibility lies for the inability of counsel for Suncor/Auger to access documents on the Portable Drive.

[39] I am, however, able to make findings with respect to the lack of co-operation on EllisDon’s part in responding to issues raised by Suncor/Auger about the technology associated with the use of the Portable Drive. Suncor/Auger and their counsel may not be the only end-user of the documents on the Portable Drive:

• Any one of the parties may provide some or all of the documents to an expert witness for review; and
• A reporter recording the continued examination for discovery will record references made to the documents.

[40] The completion of the oral discovery process, the transcription of the questions and answers, the preparation of witnesses for trial, and the conduct of the trial (including the use of the transcripts from the examinations for discovery for the purpose of read-ins or for cross-examination) will be far more efficient if the documents bear unique numbers. Reasonably easy access to the documents is required for the litigation to proceed efficiently.

Disposition

[41] For the reasons given above, I order as follows:

1. EllisDon Corporation (“EllisDon”) shall, no later than November 30, 2018, answer the undertakings listed as numbers 7, 8, and 9 in the Undertakings Chart that appears at Tab 11 of the motion record dated August 29, 2018 of Suncor Energy Inc. Suncor Energie Inc. and Transport Jacques Auger Inc.
2. EllisDon shall review the documents on the Portable Drive and remove any documents that are not relevant to the issues to be determined in the litigation.
3. EllisDon shall produce a revised, accessible, and searchable version of the Portable Drive: a) Limited to relevant documents; and b) With a unique identifier placed on each document.
4. Prior to EllisDon producing the revised, accessible, and searchable version of the Portable Drive, counsel for the parties shall meet to confer and seek to co-operate having regard to the Sedona Canada Principles with respect to documentary discovery planning. If an agreement cannot be reached, then any one or more of the parties may request a case conference for the purpose of finalizing a discovery plan.
5. Following the completion of a discovery plan, by agreement and/or with the assistance of the court, EllisDon shall produce Marc Grenier, in his capacity as the representative for EllisDon, for the continuation of his examination for discovery.
6. The motion as it relates to the undertakings given by or on behalf of the City of Ottawa and Cutback Terminal Ltd. is adjourned sine die, on the consent of those parties, and without costs.
7. The motion, as it relates to Giffels Associates Limited adjourned is sine die, on consent, and without costs.

Costs

[42] As I have already highlighted, there is no evidence that the parties engaged in negotiating a discovery plan following the completion of the exchange of pleadings. EllisDon is not alone in bearing the responsibility for that failure.

[43] From of the transcript from the examination for discovery of Mr. Grenier, it appears that knowledge of the existence of the EdgeBuilder (although not by name) arose from the examination for discovery of a representative of “IBI” (who may be a third party in a third party claim commenced by a defendant other than Suncor/Auger). The fact that Suncor/Auger was not aware of the existence of the EdgeBuilder or, at a minimum, of the server’s relevance to the litigation, does not excuse or absolve Suncor/Auger from its obligations with respect to discovery planning.

[44] It is not surprising that there is a large volume of documents relevant to the issues to be determined in a multi-party, multi-million dollar construction/oil spill case. The parties had ample time between the completion of the exchange of pleadings, in 2015, and the examinations for discovery, two years later, to engage in discovery planning, resolve disagreements, and, if necessary, seek the guidance of the court with respect to discovery planning. That work could have been done before examinations for discovery commenced.

[45] I recognize that (a) the outcome of this motion will benefit all parties, and (b) the benefit is the result of the initiative taken by Suncor/Auger in pursuing the motion. The success of Suncor/Auger on the motion is not overlooked as a factor relevant to the issue of costs.

[46] The grounds relied on in support of the motion include r. 30.02 (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That rule deals with the production of documents for inspection. Suncor/Auger’s reliance on Rule 30 in turn entitles the court to rely on r. 29.1.05(2) as to the consequences of the failure of the parties to agree upon a discovery plan: “the court may refuse to grant any relief or to award costs if the parties have failed to agree to or to update a discovery plea in accordance with this Rule.”

[47] The failure of the parties to agree upon a discovery plan did not lead to Suncor/Auger being deprived of relief sought on the motion. Regardless, it remains open to the court to decline to award costs to Suncor/Auger on the motion because of the failure of the parties to engage in discovery planning. I find that to award costs to Suncor/Auger in the circumstances would detract from the importance of a discovery plan in modern litigation. It is important that parties fulfil their discovery obligations—including discovery planning.

[48] There shall be no costs on the motion.

Madam Justice Sylvia Corthorn Released: February 26, 2019

cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Solid Waste Reclamation v. Philip Enterprises, 2 O.R. (3d) 481" url: "https://www.canlii.org/en/on/onsc/doc/1991/1991canlii7369/1991canlii7369.html" - title: "Thompson v. Arcadia Labs Inc., 2016 ONSC 3745" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc3745/2016onsc3745.html"