Date: 2003-10-17. Docket: 94-CQ-056153. Master Macleod. | Link

Plaintiff allegedly suffered damage to her jaw and skull and years of pain and suffering from interpositional temporomandibular joint implants (“TMJ implants”). Health Canada is a defendant in this action for allegedly failing to warn the public of risks and failing to prevent the use of TMJ implants. Health Canada produced the documents on a CD with a self-loading software that allows the user to search the index, but not the document text. Health Canada had a version of the software that allowed it to search the documents for keywords. The court found that “it might well be appropriate to compel disclosure of, and access to, electronic document management software”. Health Canada advised that if the plaintiff purchased a license for the software independently, it would produce a searchable version of the CD and the court agreed that this solution was reasonable. With respect to production procedure, the court found that “[b]efore indexing and scanning the documents, it would be useful for the parties to discuss how the documents are to be identified and organized and to agree upon the electronic format for the documents.  If the parties can agree on a mutually acceptable system it may well save time, cost and confusion. It may be that Health Canada has an indexing and identification system that it would be appropriate to adopt”.