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Gowing Contractors Ltd v. Walsh Construction Company Canada, 2023 ONSC 4407 (CanLII)
Date: 2023-07-28
Docket: CV-19-628838, Associate Justice C. Wiebe
In Gowing Contractors Ltd v. Walsh Construction Company Canada (https://canlii.ca/t/jzfk7), the parties signed a discovery plan indicating the parties had consulted and had regard for The Sedona Canada Principles, including the principle of proportionality. There were no search terms to be applied and no lists of specific custodians to be searched. Gowing produced 128,921 documents and Walsh produced 775,276 documents.
Gowing hired eDiscovery expert and DEED member Kelly Friedman, who identified that 25% of Walsh’s production contained irrelevant documents. Walsh argued that since the documents were electronic, Gowing could have weeded out the irrelevant documents using their own searches.
Justice Wiebe held that Walsh overproduced, ordered Walsh to provide a new affidavit of documents (to eliminate all irrelevant documents), and ordered both parties to provide their list of custodians and search terms.