Date: 2008-08-13 Docket: T-2223-07 Prothonotary Roger R. Lafrenière. | Link

Plaintiff seeks damages for a breach of contract and a permanent injunction preventing the defendants from carrying fuel allegedly owned by the plaintiff on the defendant's barge, which was arrested shortly after the suit was launched. Defendant filed a statement of defence denying they entered into a contract and a claim for a lien on the fuel on the barge, as well as damages for wrongful and continued arrest of the defendant barge. After serving their affidavit of documents, defendant amended the statement of defence and counterclaim to claim that plaintiff caused the defendant barge to be arrested in order to take advantage of the defendants "when the Plaintiff knew or ought to have known that the Corporate Defendants did not have the means to provide a bond". Plaintiff subsequently requested production of financial records so that the issue of financial means could be explored on discovery. The defendant produced an unedited balance sheet, but plaintiff considers the production insufficient to allow them to examine the defendant on capacity to provide a bond. This motion requests an order to produce Supplementary Affidavits of Documents listing the financial records for 2007 and 2008, including the monthly income statements and balance sheets. In opposing, the defendants state they have produced all relevant financial records in their possession. Defendant explains that their A/R and A/P records update on payments made and then "fall away" (para 8). Defendant would have the engage on contract the former employee who set up the financial system at a cost of $500-$750. Defendant declined plaintiff's offer to send one a technician at its own expense to retrieve the information from the database. Defendants argue they should not be required to expend time and resources to create tailor-made documents. Rules 222 to 226 contemplate the production of documents "in the possession, power or control" of a party. The most relevant electronic data and information in the "control" of a party will be that which can be accessed by the party's computer users in the ordinary course of business, otherwise known as the active data. The Court held that "The rules should not be interpreted, however, so narrowly as to prevent a party from obtaining other relevant information, such as archival data that is still readily accessible and not obsolete. In exercising its discretion whether to compel production, the Court should have regard to how onerous the request for a generated record may be when balanced against its relevance and probative value." (para 13) The Court granted the order, concluding "The information requested by (the plaintiff) consists of basic archival accounting records that would be available to a company in the usual course of business."