Heddle v. Canada Post Corporation

Heddle v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2024-10-11
Neutral citation
2024 CHRT 110
File number(s)
T2713/8921
Decision-maker(s)
Raymond, K.C., Kathryn A.
Decision type
Ruling
Grounds
Disability
Summary:
The Complainant, Sandra Heddle, asked the Respondent, Canada Post Corporation (CPC), to provide certain documents like emails and other electronic files.
In a first temporary decision (2024 CHRT 93), the Tribunal gave CPC a chance to fix its mistakes and follow clear instructions on how to search for and share missing information. CPC didn’t fully follow the instructions. It didn’t share its search methods, didn’t provide all the emails it was supposed to and didn’t explain whether it kept proper records after the case started.
When the hearing started again, CPC proposed doing a unilateral search for electronic documents, without supervision. CPC assured the Tribunal it would document its efforts. The Tribunal determined that CPC still had issues following orders and directions. The Tribunal ordered the preparation of a proposed plan for electronic searches with the consultation of the other parties. The proposed plan must be submitted to the Tribunal for approval. If the parties don’t reach an agreement, the Tribunal will resolve disagreements regarding the scope of the search before further actions.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT
110
Date:
October 11, 2024
File No.:
T2713/8921
Between:
Sandra Heddle
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Post Corporation
Respondent
Second Interim Ruling
Member:
Kathryn A. Raymond, K.C.
Table of Contents
I. Overview 1
II. Background 3
III. The Law 4
A. Documentary Disclosure 4
B. E-Discovery 8
IV. The Issue 9
V. The Respondent’s Evidence About its Search Efforts 9
VI. Delay 10
VII. Analysis of the Faries Search 12
A. Instructions for the Search 12
B. Determining Arguable Relevance 13
C. Conclusions About the Faries Affidavit 14
VIII. Analysis of the Graham Affidavit 17
A. Evidentiary Issue: Missing Exhibits 17
B. Evidentiary Issue: Information and Belief 18
(i) The Law 18
(ii) Problematic Factual Assertions in the Graham Affidavit 18
C. Conclusions About the Graham Affidavit and Its Admissibility 23
VIII. Conclusion About the Respondent’s Search Efforts To-Date 26
IX. The Lack of a Litigation Hold 29
X. Sources of Information About ESI 30
XI. The Tribunal’s Procedural Discretion 31
XII. The Need for Proportional Use of the Tribunal’s Resources 31
XIII. Second Interim Order 32
I. Overview [1] The Complainant, Sandra Heddle, brought a motion for documentary disclosure. As part of the motion, the Tribunal directed the parties to address their failure to comply with previous directions it gave the parties in case management to resolve disclosure issues. One significant omission alleged by the Complainant in her motion for disclosure concerned the failure of the Respondent, Canada Post Corporation, to produce additional electronically stored information (“ESI”) such as emails and electronically created and stored files and documents. This additional interim ruling for the motion (the “Second Interim Ruling”) addresses the disclosure of ESI.
[2] Thus far the hearing of the motion has taken place over two dates, July 22, 2024 and August 27, 2024. The Tribunal, in its interim ruling on the motion of July 31, 2024, (the “First Interim Ruling”) directed the Respondent to provide information about its search efforts and gave it a second opportunity to file affidavit evidence (Heddle v. Canada Post Corporation, 2024 CHRT 93). The Tribunal provided further procedural directions to the parties, primarily to the Respondent, in a letter dated August 7, 2024, (the “Tribunal’s Letter of Directions”) which included topics for which affidavit evidence was appropriate. The Respondent filed affidavits, and the Complainant filed submissions in response for the second date of the hearing of the motion.
[3] The Tribunal identified several issues arising from the Respondent’s additional response. These included non-compliance with some of the Tribunal orders in the First Interim Ruling and directions in the Tribunal’s Letter of Directions, evidentiary problems with affidavit evidence filed by the Respondent and additional procedural problems related to disclosure and, potentially, the preservation of documentary evidence.
[4] The compliance issues included the Respondent’s failure to provide the search terms it used to conduct an earlier multi-site search for ESI in February 2024, as directed in the Tribunal’s Letter of Directions. The compliance issues also included that the Respondent was directed to produce all arguably relevant emails. The Complainant alleges that none of the sites the Respondent searched for ESI in February 2024 contain emails. The Respondent did not respond to this and did not provide evidence or information to indicate that it had identified all of its storage sites and archives for arguably relevant ESI. The Respondent’s additional opportunity to provide further information and affidavit evidence for the motion included that the Respondent was to address the issue of whether a litigation hold was placed upon the Respondent’s records in relation to the complaint, which was filed on March 30, 2019 and, if so, when. The Respondent provided no information on this subject in advance of the resumption of the motion. [This is a partial description of the problems and issues that the Tribunal needs to ensure are resolved in this motion. The Tribunal has written the parties to provide additional procedural directions on specific topics arising from or related to this motion since the second hearing day of the motion.]
[5] At the continuation of the hearing of the motion on August 27, 2024, the Respondent requested permission to conduct a search for ESI on a unilateral basis, based on its stated commitment to do so, without being required to consult with the other parties about what would constitute a reasonable and effective search and without ongoing oversight by the Tribunal. The Respondent provided the assurance that it would produce affidavits that set out the efforts it made to find documents.
[6] While there are exceptions, the Respondent has not complied with the Tribunal’s orders and directions without reasonable excuse, which will be more fully explained in the final ruling on the motion. The Respondent initially failed to file affidavit evidence for the motion. The Respondent later indicated a willingness to provide affidavit evidence to directly address issues relevant to the motion. The Respondent requested a letter from the Tribunal with its directions including relevant subject matter for affidavit evidence. The Respondent then filed limited affidavit evidence for the resumption of the motion. The Tribunal is not prepared to require the other parties to wait to see whether the Respondent proceeds properly with its search efforts and its explanations of those efforts. This approach would delay the opportunity for the other parties and Tribunal to identify any ongoing or additional issues with the Respondent’s search efforts for ESI and is inefficient. The parties are to try to agree upon a plan to search for ESI before the search resumes. The Respondent is ordered to prepare a written plan for the search for arguably relevant ESI in its possession (the “Proposed Plan”). In doing so, the Respondent is to consult with the other parties, and determine whether the parties can agree on the Proposed Plan.
[7] For reasons explained below, the parties are to submit the Proposed Plan to the Tribunal for approval. This approval will be forthcoming as long as the Proposed Plan appears effective and proportional to the Tribunal. If the parties cannot agree upon a Proposed Plan, the Tribunal will resolve any issue about what the search should involve before a further search is conducted.
II. Background [8] The Complainant made specific requests for documents missing from the Respondent’s List of Documents. The Respondent agreed that the requested documents were arguably relevant and undertook to provide the requested disclosure. However, the disclosure the Respondent made appeared incomplete. For example, the Complainant expected additional emails to be produced concerning internal communications and communications with third parties. The apparent omissions led the Complainant to bring a motion for the disclosure she requested.
[9] The Tribunal directed the parties to address their lack of compliance with its previous directions as part of the motion. This was because the Tribunal had required the disclosure issues to be addressed long before the Respondent made additional disclosure in May 2024. The proceeding has been unnecessarily delayed by disclosure and compliance issues.
[10] The parties exchanged submissions for the motion. The hearing of the motion began on July 22, 2024. However, the hearing was adjourned until August 27, 2024. The primary reason for the adjournment of the hearing was that the Respondent provided insufficient information about its search efforts for the motion. The Tribunal issued the First Interim Ruling with procedural orders and provided further procedural directions to the parties, primarily to the Respondent, in the Tribunal’s Letter of Directions. As explained in the First Interim Ruling, full reasons for the motion and its adjournment will be provided in the final ruling on the motion.
[11] The orders in the First Interim Ruling and the directions in the Tribunal’s Letter of Directions concerned specific procedural steps that the Respondent needed to satisfy before the hearing of the motion resumed so that the motion could be heard in an effective and efficient manner. As explained, the Tribunal’s Letter of Directions also identified topics either requiring affidavit evidence, for example those related to compliance, or topics for which affidavit evidence was recommended. The Tribunal’s Letter of Directions was provided at the request of Respondent counsel. The Tribunal understood that the Respondent intended to use the letter as a tool to ensure that the Respondent complied with its directions. However, the Respondent did not comply with all of the Tribunal’s directions and, as noted above, filed limited affidavit evidence. The affidavits about the Respondent’s search efforts raised other issues relevant to the disclosure of ESI, as explained below.
[12] For example, while the complaint was filed on March 30, 2019, it became apparent from the affidavits filed by the Respondent for the resumption of the motion that the Respondent had not attempted a specific search for ESI until February 2024. It was not clear from the information the Respondent provided that the search it initiated in February 2024 would have identified emails relevant to the subject matter included within the Complainant’s requests for documents.
III. The Law A. Documentary Disclosure [13] Disclosure of all arguably relevant documents in proceedings before the Tribunal is a clear requirement under the Canadian Human Rights Act R.S.C., 1985, c.H-6 (the CHRA) and the Canadian Human Rights Tribunal’s Rules of Procedure, 2021 (the “Rules”) (see, for example, Rule 18(1)(f)). The Tribunal has repeatedly reiterated that disclosure is necessary to ensure that a party has a full and ample opportunity to present their case: see, for example, Yaffa v. Air Canada, 2014 CHRT 22 at paras 3-5, Kayreen Brickner v. Royal Canadian Mounted Police, 2017 CHRT 28 at paras 4-10; Egan v. Canada Revenue Agency, 2017 CHRT 33 at paras 29-33; Nwabuikwu v. Royal Canadian Mounted Police, 2020 CHRT 9 at paras 5-8.
[14] Disclosure in advance of the hearing is an important component of access to justice before the Tribunal. Complaints of discriminatory practices, which are defined in section 5 of the CHRA, may be brought against respondents who are employers, service providers and those who provide goods, facilities or accommodations. Employers and service providers often possess all or most of the documents that are arguably relevant to the complaint. Complainants frequently do not have access to all of the documents they need to present their case. They are reliant on the respondent’s possession of known relevant evidence to support their complaint. Accordingly, to participate in the proceeding fully and effectively and to present their case, complainants need disclosure of arguably relevant documents from the respondent. The fact that the Complainant had to request her pay stubs from the Respondent in order to support her claim for loss of income illustrates the disparity in access to documents that can arise in a proceeding before the Tribunal. The fact that the Complainant requires her paystubs to particularize her loss of income claim also highlights the importance of timely disclosure by the Respondent.
[15] Generally, parties to proceedings before the Tribunal are legally required to make disclosure of all arguably relevant documents in their possession. As explained in Gaucher v. Canadian Armed Forces, 2005 CHRT 42 at para 11, “The threshold for arguable relevance is low and the tendency is now towards more, not less disclosure”. If a respondent wishes to limit its disclosure in some way, it is required to make a request of the Tribunal and be granted permission by the Tribunal to do so.
[16] The procedural obligation to make disclosure has two facets: 1) the obligation to search for, identify and preserve all arguably relevant documents and 2) the obligation to disclose arguably relevant documents to the other parties whether it is in the party’s interest to do so or not: Perini Ltd. v Parking Authority of Toronto, 1975 CanLII 761 and Lewis v York Region Board of Education (No. 4), 1994 CanLII 18395 (ON HRT) [Lewis] at paras 80-82. The disclosure principles in R. v Stinchcombe, 1991 Can LII 45 (SCC) [Stinchcombe], which was a criminal case, are applicable to a human rights complaint: Lewis and Ontario (Human Rights Comm.) v. Ontario (Human Rights Board of Inquiry), 1993 CanLII 16421 (ON SCDC), leave to appeal to Ontario Court of Appeal denied January 31, 1994 [Northwestern Hospital]. The first level decision of the Human Rights Tribunal of Ontario regarding Northwestern Hospital may be found at Christian, Dillion, Edwards v. Northwestern Hospital (No. 2), Interim Decision (Disclosure), 1993 CanLII 16511 (ON HRT). The Divisional Court noted at paras 15-16 in Northwestern Hospital that “The important principle enunciated by Mr. Justice Sopinka [in Stinchcombe] is that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address the issues on the basis of complete information of the case to be met. [Emphasis added].” Since this clarification of the law in Lewis and Northwestern Hospital, parties before the Tribunal have been required to make full disclosure of all arguably relevant documents including those against their interest. The principle articulated by Justice Sopinka not only avoids surprise at the hearing for the complainant and respondent, but its application resolves any disparity in access to arguably relevant documents that exists between the parties before the hearing.
[17] Upon notice of a legal proceeding, a party acquires a legal obligation to preserve evidence including relevant documentary evidence so that it can be produced: Jorge v. Canada Post Corporation, 2021 CHRT 25 at para 114. Parties are expected to have exercised due diligence to preserve and maintain documents as they exist at the time, so that the party may later produce documents for the legal proceeding: Davidson v Global Affairs Canada 2023 CHRT 52 [Davidson] at para 31: “…[D]ocumentary evidence is to be preserved and is not expected to be altered by a party once that party has notice of litigation, including not in the course of review and preparation of the List of Documents.”
[18] It is widely accepted in our legal system, including by other Canadian administrative tribunals, that the obligation to preserve and disclose relevant documents includes ESI: The Sedona Conference, The Sedona Canada Principles Addressing Electronic Discovery, Third Edition, 23 SEDONA CONF. J. 161 (2022) (the “Sedona Principles”); Murphy et al v Bank of Nova Scotia et al, 2013 NBQB 316; Cameco Corporation v. The Queen, 2014 TCC 45; Reasons for Order and Order dismissing Reliance's motion for further and better affidavits of documents, 2014 CanLII 149782 (CT) (Competition Tribunal, 2014 CanLII 149782); Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219. The first principle of the Sedona Principles is that electronically stored information is discoverable.
[19] None of the above fundamental legal principles are in dispute in this motion.
[20] Where there is ongoing litigation or where litigation is contemplated, the intentional destruction or concealment of evidence by a party is known as spoliation; when established, spoliation can lead the Tribunal to draw an adverse inference against that party: see Peters v United Parcel Service Canada Ltd. and Gordon, 2022 CHRT 25 (CanLII) at paras 115-127.
[21] Parties that are ordered to make disclosure by the Tribunal, or directed in case management to do so, are required to make best efforts to do so: Hemming v Oriole Media Corp., 2021 ONSC 6748 at para 20. “Best efforts” have also been defined in the case law in the context of compliance by parties with undertakings to make disclosure: “The words mean that counsel and his/her client will make a genuine and substantial search for the requested information and/or documentation” (see Gheslaghi v Kassis, 2003 Can LII 7532 (ON SC) at paras 6-7 and Re/Max, LLC v Save Max Real Estate, Inc., 2021 CanLII 53761 (FC) at paras 44 and 45.)
[22] Because of the above principles of law, parties to legal proceedings are all but presumed to have acted in good faith and exercised due diligence to identify relevant documents and to have preserved and maintained documents as they exist at the time so that the party may later meet their legal obligation to produce documents for the legal proceeding. It is usually only when a party complains that another party has not made sufficient efforts to make disclosure that courts and tribunals will intervene (see, for example, Mississaugas of New Credit First Nation v. Attorney General of Canada, 2013 CHRT 32). Other situations that may require the Tribunal’s supervision of disclosure include when there is non-compliance with an order or direction, when there is a dispute about whether requested disclosure is relevant or proportional, or a party alleges that evidence has not been properly preserved. There are even fewer cases where the Tribunal will involve itself in the mechanics of what is involved in the exercise of due diligence or “best efforts” by a party in relation to satisfying an undertaking to conduct document searches or where document searches are ordered unless this is in issue: see Wilson v. Bank of Nova Scotia, 2022 CHRT 34 [Wilson].
B. E-Discovery [23] The Rules do not contain specific content regarding e-discovery. However, the Tribunal has authority over its procedure and provides procedural directions for matters not specifically addressed in the Rules: see Davidson at paras 15-18. This includes that the CHRA grants the Tribunal the authority and discretion to decide matters concerning e-discovery: Clemente v. Air Canada, 2022 CHRT 29 at para 28:
[28] The Tribunal notes that the Rules of Procedure provide for the disclosure of documents and production of documents. As stated in Nur v Canadian Railways, 2019 CHRT 5, at para 221 and after (Nur), the powers and jurisdiction of the Tribunal do not emanate from the Rules of [P]rocedure but from the CHRA.
[29] The CHRA provides at paragraph 48.9(2)(e), that the Chairperson of the Tribunal may make rules of procedures governing the practice and procedure before the Tribunal, including but not limited to, rules governing (e)discovery proceedings. As of this day, the Chairperson of the Tribunal has not provided specific rules in the matter. As mentioned in Nur, “Nonetheless, this does not mean that it cannot exercise its powers and its discretion on this matter”. In fact, the legislator gave the Tribunal broad discretion to create rules of practice (see Desormeaux v Ottawa-Carleton Regional Transit, 2002 CanLII 52584), which are not limited in the list in paragraph 48.9(2) of the CHRA.
[24] At para 99 of Wilson, the Tribunal noted that issues involving the production of ESI are addressed on an individual case basis by the Tribunal:
[99] As explained above, it is usually the case that electronic searches will initially lead to the identification of a large number of documents that will need to be reviewed and sorted for arguable relevance. There are no formal rules about the conduct of electronic searches in proceedings before the Tribunal as there are in some other legal contexts. This topic is not addressed in the Tribunal’s Rules of Procedure under the Act (03-05-04) (the “Rules”); rather each case involving electronic production before the Tribunal is addressed on an individual basis based on the Tribunal’s authority and discretion respecting procedural issues, as is recognized in section 50(3)(e) of the Act.
IV. The Issue [25] In this case, the Respondent undertook to make disclosure and was directed to do so. The Respondent acknowledged at the second day of the hearing of the motion that the search for documents, including ESI, it conducted was not adequate. The Respondent offered to conduct a further search for ESI. Respondent counsel indicated that the Respondent was looking for assistance with conducting the ESI search.
[26] The issue in this Second Interim Ruling is whether the Respondent ought to be allowed to exercise its discretion about what constitutes best efforts on its part to search for and make disclosure including an effective and proportionate search for ESI.
V. The Respondent’s Evidence About its Search Efforts [27] The Respondent filed affidavits for the continuation of the motion on August 27, 2024. Two affidavits specifically concerned the Respondent’s efforts to search for documents.
[28] One affidavit of approximately three pages was submitted by Adam Faries, Labour Relations Specialist on August 19, 2024 (the “Faries affidavit”). Mr. Faries identified himself as a Human Rights Advisor/Support Officer for the Respondent’s human rights team. In part, Mr. Faries stated in his affidavit that he was asked to gather documents on January 30, 2024, in response to the Complainant’s requests listed in her letter dated November 30, 2023.
[29] The second affidavit was deposed by Elspeth Graham, Advisor, Human Rights, Workplace Harassment and Violence of the Respondent on August 19, 2024 and is approximately six pages in length (the “Graham affidavit”). Ms. Graham provided evidence through her affidavit that she has held the position of Advisor since September 2022 and has acted in this capacity as instructing representative of the Respondent in this complaint, working with Respondent counsel, since then.
[30] In part, Ms. Graham stated in her affidavit that she received the list of requests for documents from the Complainant dated November 30, 2023 from Respondent counsel on December 21, 2023 and sent the list of requested documents to Mr. Faries on January 30, 2024. She gave evidence in her affidavit that she did so as a result of a discussion with her manager at the time who requested that the Complainant’s requests for documents be sent to Mr. Faries.
[31] Mr. Faries stated in his affidavit that he looked for “information relating to Ms. Heddle” in the following places: the Respondent’s paper file, iSight, the Respondent’s “old” digital filing system, Sodales, the Respondent’s “new” digital filing system, Sharepoint, an internal database, and the Respondent’s “Employee Interaction Centre” (EIC), which is described as an internal log of interactions between human resources and other employees. Mr. Faries did not provide the search terms he used to identify arguably relevant ESI in his affidavit or otherwise explain how he conducted the search.
[32] The Graham affidavit stated that, in April 2019, a representative of the Respondent asked the Respondent’s relevant Disability Management Specialist, and the Manager Deliver Operations in April 2019 to produce all the documents they had concerning the Complainant. The Graham affidavit further stated that, in July 2019, the Respondent asked the Manager Deliver Operations, a supervisor and the Shift Manager at a relevant worksite to produce specific information and documents. Any specific documents requested were unidentified in the affidavit.
[33] Ms. Graham gave evidence in her affidavit that she is not aware of any other search efforts by the Respondent after the Respondent became engaged in the complaint process until she obtained and produced attendance records for the complaint in August 2023.
VI. Delay [34] The procedural history about documentary disclosure in this complaint is described in more detail in the First Interim Ruling; that ruling is to be considered to form part of these reasons. When the Tribunal directs that a party is to address its compliance with an order or direction, or to explain a delay, that party is required to provide a substantive and informed response. The Respondent failed to do so. As explained, the Tribunal gave the Respondent a second opportunity to address its compliance and search efforts, including the opportunity to provide an explanation for its delay. This was partly why the motion was adjourned.
[35] There was a three-week delay by Respondent counsel in sending the November 30, 2023, request from the Complainant to Ms. Graham. There was a two-month delay between the Complainant’s request of November 30, 2023, and the forwarding of the request to Mr. Faries by Ms. Graham on January 30, 2024. No explanation was offered within the Graham and Faries affidavits filed by the Respondent for this delay.
[36] There is nothing in the Graham affidavit or the Faries affidavit to indicate that Ms. Graham informed Mr. Faries that the Tribunal had directed in May of 2023 that disclosure was to be made on a time-sensitive basis. The Tribunal emphasized the requirement that disclosure occur on a timely basis in written communications to the parties on October 6, 2023, and October 16, 2023.
[37] Mr. Faries stated in his affidavit that he concluded his search and provided the additional documents he had collected to Ms. Graham on May 1, 2024. Mr. Faries offered no information to explain why his search, which appears to have yielded limited results, took three months to conduct.
[38] In the Tribunal’s Letter of Directions, the Tribunal stated the following in para 20(a): “On the issue of delay, at the very least, the Respondent should provide an explanation for its delay in providing the Complainant’s paystubs to her and in responding to the other requests for documents that were most recently relayed in the Complainant’s letter of November 30, 2023.” The Tribunal infers from the lack of explanation from the Respondent in the affidavits filed on its behalf, despite a direction that the Respondent, at minimum, explain its delay in producing pay stubs and in responding to the November 30, 2023 letter, that there is no good reason for the Respondent’s delay.
VII. Analysis of the Faries Search A. Instructions for the Search [39] In para (g) of the Tribunal’s Letter of Directions, the Tribunal provided a relevant direction about producing ESI including arguably relevant emails:
The Respondent is obligated to describe its search efforts for electronic documents both current and archived or otherwise preserved. If a search for electronic documents was conducted by someone with expertise in this area, that would be relevant and helpful to know. As well, the Respondent should indicate what its instructions for the search were and to whom the instructions were given including what search terms were used.
[40] The Respondent did not directly address all of the topics described at para (g) of the Tribunal’s Letter of Directions in its further response to the motion. The Tribunal is left to infer from the affidavits that Mr. Faries likely did not have expertise in this area and was not provided with appropriate instructions by the Respondent.
[41] Mr. Faries stated in his affidavit that he received the list of document topics requested by the Complainant in her letter of November 30, 2023. There is no other reference to instructions in his affidavit. There is nothing in the Graham affidavit to indicate that Ms. Graham provided any instructions to Mr. Faries about how and where to conduct the search. Nor was an explanation provided in the Graham affidavit for the manager’s decision to instruct Ms. Graham to ask Mr. Faries to conduct the search.
[42] If Mr. Faries was provided with instructions on behalf of the Respondent, such as where he was to search for ESI and paper documents or how he should conduct the search, those instructions should have been disclosed by the Respondent. This was directed in the Tribunal’s Letter of Directions. It was directed because it would better enable the parties and the Tribunal to understand what Mr. Faries did and explain the results of the search he conducted. On the subject of instructions, the Faries affidavit merely repeats what disclosure was requested by the Complainant. This appears to confirm that the Respondent did not provide further instruction to Mr. Faries.
[43] There is nothing in the Faries affidavit or the Graham affidavit to suggest that Mr. Faries had ever conducted a search for ESI before. There is nothing to indicate he had experience or knowledge about searching electronic storage sites such as those he identified as having searched for this complaint. There is nothing to indicate consideration of other potentially relevant ESI storage sites such as personal computers used by witnesses for work, servers or archives. There was nothing in the Graham affidavit to explain how Mr. Faries would know or be able to inform himself where he should search for ESI relevant to this complaint. Mr. Faries did not explain how he knew which sites to search for ESI, nor did he confirm whether he had searched all known sites or arguably relevant sites.
[44] The Faries affidavit provides little to no information about the content of ESI stored on each of the sites that he did search, omitting information such as the timeframe and type of ESI stored at each site.
[45] The Respondent did not provide the search terms that were used by Mr. Faries to conduct searches for ESI relevant to each of the Complainant’s requests as directed in the Tribunal’s Letter of Directions. This information is necessary to facilitate the assessment of the effectiveness of the search and its results.
B. Determining Arguable Relevance [46] There is nothing in the Faries affidavit to confirm that Mr. Faries had background knowledge of or involvement in responding to the complaint prior to January 30, 2024. The affidavit does not state when Mr. Faries began to work for the Respondent, nor does it clearly identify when he became involved in this complaint. It seems likely that Mr. Faries would need to be reasonably familiar with this complaint to fully understand what to search for concerning each category of documents that were requested by the Complainant and to analyze the results of search efforts for arguable relevance.
[47] There is no evidence in the Faries affidavit to establish that Mr. Faries’ search focused upon custodians of relevant documents about this complaint or that he was informed or knew that this was a relevant parameter for a search of ESI. Custodians are defined as those potential witnesses who were involved in the events in the complaint and are known to or reasonably expected to have authored, received or been copied on electronic communications, files and documents.
[48] Mr. Faries did not specify the relevant time frame he used to conduct the search for ESI in his affidavit.
C. Conclusions About the Faries Affidavit [49] The Tribunal infers from these circumstances that, apart from Ms. Graham identifying search topics, Mr. Faries was provided with no or inadequate instructions about how to conduct the search he was tasked to begin in February 2024 on behalf of the Respondent. This most likely explains why the results of his search were limited.
[50] For a search for ESI to be effective, the relevant sites to be searched must first be identified. The Respondent is expected to have identified the sites where ESI is stored, and to have ascertained the type of ESI contained at each site, and the relevant time period for that data. The Respondent should have explained what sites the Respondent selected to search and why. As the disclosure of emails is specifically in issue, the Respondent should have confirmed whether the sites it selected for the search would reasonably be expected to contain emails about the topics in issue.
[51] If the Respondent was aware of any limitations upon the effectiveness of its search for ESI, it should have brought those to the attention of the other parties before or at the time it made disclosure from its search.
[52] Relevant custodians and the applicable time frame for the search are relevant parameters for a search of ESI, as are search terms targeting the subject matter of the content. This is the case for each category of documents to be disclosed.
[53] The search terms employed in a search for ESI need to be carefully considered. The search terms should target the issues and allegations at issue in the proceeding to ensure that the search leads to the identification of potentially relevant content, while avoiding excessive identification and inclusion of irrelevant electronic documents, files and communications. There is no evidence before the Tribunal that Mr. Faries obtained or was provided any information about search terms that were required for the efficacy of the search.
[54] The Faries affidavit provided no evidence about how Mr. Faries searched for information relevant to Ms. Heddle. Mr. Faries stated in his affidavit that he compiled all of the information he gathered “through the above methods” without identifying the methodology he used for each of the sites he searched. Mr. Faries failed to identify how he found documents relevant to the Complainant on the sites he searched. Mr. Faries indicated only that he looked for information relating to Ms. Heddle.
[55] If Mr. Faries conducted searches using only Ms. Heddle’s name as a search term, it is reasonable to expect that many thousands, if not tens of thousands of instances of ESI would have been included in the search results because they include Ms. Heddle’s name. A broad search on a person’s name over a series of different sites of ESI can be reasonably expected to have identified a large number of not only potentially relevant documents but irrelevant documents to the complaint. The Complainant is a long-term employee of the Respondent having been employed in 2009 until she finally ceased active employment in 2021.
[56] A search using only Ms. Heddle’s name is also not likely to capture all relevant documents. Other ESI may exist that does not specifically contain the Complainant’s name but concerns the events and allegations in this complaint.
[57] If Mr. Faries used a computer program or search tool to assist with the search, he did not say so. A software program would typically generate a summary, a list or a description of the search results. In any event, Mr. Faries did not produce documentation or information in his affidavit confirming the number of initial results from his searches, nor did he provide other evidence generated by the search itself about the results to show what search terms he used and the number of initial results he obtained. There is no breakdown of the number of results obtained from his search of each of the ESI sites he selected.
[58] Several other aspects of Mr. Faries’ evidence are incongruous with typical searches conducted for ESI in the context of litigation. It seems unlikely that Mr. Faries reviewed thousands of documents containing the Complainant’s name over the three month period of his engagement to narrow the documents to be produced down to those arguably relevant to the Complainant’s specific requests, without mentioning the extensive effort this would require of him in his affidavit for the Tribunal and without seeking additional resources and assistance for this task from the Respondent. To the contrary, the Faries affidavit indicates that it was Mr. Faries alone who conducted the search and produced the limited results of the search to Ms. Graham.
[59] The Faries affidavit does not suggest that Mr. Faries was required to take any steps to cull the documents of irrelevant results from those he considered relevant. The affidavit does not describe efforts in relation to Mr. Faries’ search such as removing irrelevant content or duplicates, for example.
[60] Further, the Faries affidavit states that Mr. Faries sent all the results of his search to Ms. Graham. The Faries affidavit states at paras 7-8 as follows:
7. I then compiled all of the information I had obtained through the above methods into Sodales.
8. On May 1, 2024, I advised Ms. Graham that the documentation that she had requested had been uploaded to Sodales and directed Ms. Graham to the folder containing new documentation that had been obtained through the process described above.
[61] The Graham affidavit indicates at para 23 that, on the same day that Mr. Faries uploaded all the documents he could find, Ms. Graham downloaded the documents which had not been previously disclosed and sent that documentation to Respondent counsel. As noted, a limited number of documents were subsequently produced. This reinforces the probability that the search that Mr. Faries conducted for ESI was ineffective.
[62] As noted above, there is no evidence before the Tribunal that Mr. Faries had sufficient knowledge of the allegations in this compliant or familiarity with the issues to be in a position to accurately assess which documents were arguably relevant to the Complainant’s requests and should be provided to Ms. Graham.
[63] Counsel for the Respondent has been retained to defend the Respondent against this complaint and is expected to have detailed knowledge of the Respondent’s search efforts and to advise the Respondent on the subject of which documents are arguably relevant to the litigation and must, then, be disclosed by the Respondent. However, during the fist day of the motion hearing, Respondent counsel advised that he was not directly involved in the search for documentation to respond to the Complainant’s list of requests, which was conducted by his client.
[64] Additionally, there is no specific evidence before the Tribunal to confirm the evidentiary chain connecting the results of the Faries search that were sent to Ms. Graham via an unidentified file in Sodales, and what was disclosed to the Complainant.
[65] In all the circumstances, the Tribunal does not accept the Faries affidavit sworn on August 19, 2024, as reliable evidence demonstrating that a potentially effective search for ESI was made by the Respondent in February 2024.
VIII. Analysis of the Graham Affidavit A. Evidentiary Issue: Missing Exhibits [66] When a witness gives evidence about a document in an affidavit, the document is to be attached as an exhibit to the affidavit. This is a standard requirement when filing affidavits as evidence. For example, Rule 80(3) of the Federal Cou