Case Report – Burden of production argument can’t be raised as defence to contempt motion

On February 28th, the New Brunswick Court of Appeal released the latest award in a long-running e-discovery dispute. It held that the defendants ought to have sought leave to appeal a fairly broad order to provide access to its “computer system.”

The impugned order was made in July 2006 by Savoie J. of the New Brunswick Court of Appeal. The defendants did not appeal, but also did not comply, and in 2007 the plaintiffs brought a motion for contempt. The motion was heard by Lavigne J., who held she could not upset Savoie J.’s order in a collateral motion and rejected the defendants’ argument that costs should be shifted due to the burden of providing access to electronic records. She reserved on the matter of contempt, later rejected in January 2008 (and reported here).

The Court of Appeal agreed with Lavinge J.’s approach. It stated:

In the present case, it may be that the Rules of Court were inadequate to resolve the issues raised by the plaintiff’s original motion and that the Savoie J. [sic] might have been well advised to fashion some relief inspored by [The Sedona Canada Principles and the Ontario Guidelines]. It may be that he could have done so under the authority of Rule 2.04, which provides that “[i]n any matter of procedure not provided for by these rules or by an Act the court may, on motion, give directions.” However, these questions do not arise in this appeal since no one sought leave to appeal Savoie J.’s decision.

Spielo Manufacturing Inc. v. Doucet, [2007] N.B.J. No. 510 (QL) (N.B.C.A.). [Decision not yet published on CanLII.]

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