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Canadian Court Rules



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Alberta
The Alberta Rules of Court, Alta. Reg. 390/1968, do not contain provisions relating specifically to discovery of electronically stored information. The term "record" for use in Part 13 of the Rules concerning discovery is defined in Rule 186 to include "the physical representation or record of any information, data or other thing that is or is capable of being represented or reproduced visually or by sound, or both." View the Alberta Rules of Court here  and new Alberta Rules of Court that are expected to become effective November 1, 2010 can be viewed here

The Court of Queen's Bench of Alberta has provided guidance for electronic discovery in its Civil Practice Note No. 14, which became effective September 4, 2007. The Note establishes a default standard or framework for handling electronic records that applies in the absence of a protocol agreed upon by the parties or ordered by the court. View Civil Practice Note No. 14 here .

Paragraph 6.1.3 of the Note provides that at an early stage in the proceedings, parties should consider whether they "have conferred with the other parties regarding any issues about the collection, preservation and production of Discoverable Records including Electronic Material, and, where possible, agreed on the scope of each party's rights and responsibilities with respect to these matters, including agreeing on any changes to the default standard."

British Columbia
The British Columbia Rules of Court, B.C. Reg. 221/90, do not contain provisions providing specifically for discovery of electronically stored information. Rule 26 provides for discovery of documents "relating to any matter in question in the action," and Rule 1(8) states that "'document' has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device." View Rules of Court here .

As part of an Electronic Evidence Project, the Supreme Court of British Columbia developed a practice direction for the management and exchange of electronic evidence. According to the court:
The practice direction establishes a default standard or framework for document exchange. This default standard represents the lowest common denominator for electronic databases which means that a party is not required to use sophisticated litigation support software in order to exchange electronic documents. In addition, the practice direction expressly provides that parties are free to depart from the default standard if they can agree, but in the absence of an agreement, the default standard exists.
The Electronic Evidence Project is described here .

The Practice Direction regarding electronic evidence, effective July 1, 2006, is available here .

A generic protocol document provided by the court specifying protocols for electronic discovery is available here .


Manitoba
The Manitoba Queen's Bench Rules governing civil proceedings in the Court of Queen's Bench of Manitoba are set forth in Manitoba Regulation 553/88. Rule 30 provides for discovery of relevant documents. For purposes of Rule 30, "document" is defined in Rule 30.01(1) to include "information recorded or stored by means of any device." There currently are no provisions in the Rules specifically addressing discovery of electronically stored information. View the Queen's Bench Rules here .

New Brunswick
The New Brunswick Rules of Court, N.B. Reg. 82-73, govern practice and procedure in civil matters before the Trial Division of the New Brunswick Court of Queen's Bench. Rule 31.01 of the New Brunswick Rules of Court includes "information recorded or stored by means of any device" within the definition of "document" subject to discovery under Rule 31 if related to a matter in issue in the action. Discovery of electronically stored information is not otherwise addressed in the Rules. View the New Brunswick Rules of Court for the Court of Queen’s Bench here .

Newfoundland and Labrador
Rule 32 of the Rules of the Supreme Court of Newfoundland and Labrador, S.N.L. 1986, c. 42, Sch. D, provides for the production and inspection of documents. The term "document" is defined to include "a record of any kind," but there is no provision in the Rules that specifically addresses discovery of electronically stored information. View the Rules of the Supreme Court, 1986 here .

Northwest Territories
Rule 218(1) in Part 15 of the Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. 010-96, relating to discovery of documents, defines “document” to include “information recorded or stored by means of any device.” Discovery of electronically stored information is not otherwise addressed in the Rules. View the Rules of the Supreme Court of the Northwest Territories here .

Nova Scotia
New Nova Scotia Civil Procedure Rules went into effect in January 2009. A mandatory education program for the Nova Scotia Bar concerning the new rules is available here .

Part 5 of the new Rules concerns discovery and disclosure and is available here . Rule 16 in Part 5 directly addresses disclosure of electronic information. The rule "prescribes duties for preservation of relevant electronic information" and "prescribes duties of disclosure of relevant electronic information."

Rule 16 was the first "rule" – in contrast to practice directions or notes in British Columbia, Ontario, and Alberta – in Canada providing specifically for preservation and disclosure of electronic evidence. The Rule is based on principles described by the Sedona Conference.

An overview of Rule 16 from the mandatory education program presented by the Nova Scotia Barristers Society is available here .

Nunavut
The Nunavut Court of Justice uses Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. 010-96, for civil procedure. Rule 218(1) in Part 15 of the Rules of the Supreme Court of the Northwest Territories concerns discovery of documents and defines “document” to include “information recorded or stored by means of any device.” Discovery of electronically stored information is not otherwise addressed in the Rules. The Rules of the Supreme Court of the Northwest Territories are available here .

Ontario
The Ontario Rules of Civil Procedure, effective January 1, 2010, specifically address electronic discovery. The new rules include proportionality as a guiding principle and provide for electronic discovery through new Rules 29.1 and 29.2. The Ontario Rules of Civil Procedure are available here .

Rule 1.04 was amended by adding subrule (1.1) on proportionality:
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.
Rule 29.1 provides for the preparation and updating of written discovery plans by the parties to litigation where they intend to obtain evidence pursuant to Rules 30-33 and 35. The discovery plan must include "the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action." Rule 29.1.03(3)(a). In preparing the discovery plan, "the parties shall consult and have regard to the document titled 'The Sedona Canada Principles Addressing Electronic Discovery' developed by and available from The Sedona Conference.” Rule 29.1.03(4). The Sedona Canada Principles Addressing Electronic Discovery are available here .

Rule 29.2 specifically addresses proportionality in discovery. The factors the court will consider include time, expense, any undue prejudice, interference with orderly progress of the action, availability of the discovery from other sources, and volume of documents.


Prince Edward Island
Rule 30 of the Prince Edward Island Supreme Court Rules of Civil Procedure, R.S.P.E.I. 1988, c. S-10, concerns the discovery of documents. For purposes of Rules 30.02 to 30.11 relating to discovery of documents, the term "document" is defined in 30.01 (1) to include "data and information in electronic form." Rule 1 also includes definitions of the terms "document" and "electronic" for use generally with the Rules:
(m.1) "document" includes data and information in electronic form;

(m.2) "electronic" includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means, and "electronically" has a corresponding meaning.

The Prince Edward Island Rules of Civil Procedure are available here .

Quebec
Discovery in Quebec is described in the Introduction to The Sedona Canada Principles Addressing Electronic Discovery:
Quebec has a unique hybrid legal system, unlike the other common law jurisdictions in Canada. Private law in Quebec follows the civil law tradition in which there is no general duty to produce potentially relevant documents. Nevertheless, electronically stored information is routinely produced in Quebec without the specific obligation to do so, and so electronic discovery guidelines are useful even for Quebec litigation. The Quebec Code of Civil Procedure can be found here .
The Introduction continues:
In Quebec, the Code of Civil Procedure ("CCP") does not specifically require the preservation or production of information beyond documents that the disclosing party intends to refer to as exhibits at the hearing. Parties can, however, be required to deliver specific documents when requested by the other side in the context of discovery. In this context, there is no specific obligation to preserve electronic information in advance of litigation that extends beyond the general obligation of parties to refrain from acting with the intent of causing prejudice to another person or behaving in an excessive or unreasonable manner, which would be contrary to the requirements of good faith as prescribed by the CCP.
Quebec Code of Civil Procedure, R.S.Q. c. C-25, establishes a standard of proportionality in Article 4.2:
In any proceeding, the parties must ensure that the proceedings they choose are proportionate, in terms of the costs and time required, to the nature and ultimate purpose of the action or application and to the complexity of the dispute; the same applies to proceedings authorized or ordered by the judge.
The Code provides for document preservation and production in Article 402:
If, after a defence filed, it appears from the record that a document relating to the issues between the parties is in the possession of a third party, he may, upon summons authorized by the court, be ordered to give communication of it to the parties, unless he shows cause why he should not do so.

The court may also, at any time after defence filed, order a party or a third person having in his possession any real evidence relating to the issues between the parties to exhibit it, preserve it or submit it to an expert's appraisal on such conditions, at such time and place and in such manner as it deems expedient.

Saskatchewan
Rule 211 of the Queen's Bench Rules defines "document" as used in provisions for discovery and inspection of documents in Part 20, to include "information recorded or stored by means of any device" such as a "computer disc." There are no provisions specifically related to discovery of electronically stored information.

The Queen's Bench Rules are available here .


Yukon Territory
The Rules of Court for the Supreme Court of Yukon came into force on September 15, 2008, and ended the use of the British Columbia Rules of Court in Yukon. Sub-part (18) of Rule 25, which provides for discovery of documents, addresses e-discovery in civil proceedings in Yukon:
E-Discovery

(18) (a) The parties may agree to produce documents in electronic form and any party may apply to the court for an order to produce documents in electronic form.

(b) If a document is in electronic form, the party inspecting it should be entitled, upon request, to receive a copy in that form.
The Rules of Court for the Supreme Court of Yukon are available here .


Federal Court of Canada
The definition of "document” in Rule 222.1 – for use in applying discovery rules 223 to 232 and 295 – includes "computer diskette and any other device on which information is recorded or stored." Discovery of electronically stored information is not otherwise provided for in the rules. The Rules for Regulating the Practice and Procedure in the Federal Court of Appeal and the Federal Court (SOR/98-106) are available here .