In December 2019, the British Columbia Supreme Court granted an application that BC’s E-Trial Practise Direction apply to a complex, multi-party commercial case, even in the face of opposition from the plaintiffs, a defendant and third party.
Long Lake Hydro Limited v. Western Versatile Construction Corp began in 2015. It considers the design and construction of an overhead transmission line as part of a hydro-electric project near Stewart, British Columbia. The plaintiffs allege that, as a result of negligence by the defendants, the overhead transmission line suffered from trips, de-energization and damage and the plaintiffs’ estimated cost to rebuild the transmission line was approximately $44.6 million. By the time this application was made, there were five plaintiffs, nine defendants and 18 third parties.
The parties did not agree to a document exchange protocol. The Applicants proposed a document exchange protocol shortly after they received the plaintiffs’ documents, and made other overtures as the case developed. Counsel for the Plaintiffs did not agree. Approximately 85,000 electronic documents were exchanged – filling more than 242,000 pages.
Master Elwood reviewed affidavit evidence, heard almost two hours of argument in chambers, and ruled that BC’s E-Trial Practise Direction could be applied, even four years into the case.
[35] At each stage of this process, the practice direction can provide guidance, common standards and dispute resolution by the court, should the parties disagree further on matters that are the subject of the practice direction. Long Lake Hydro Limited v. Western Versatile Construction Corp., 2019 BCSC 1760 at para. 35
Going forward, the proceeding will be conducted in accordance with the practice direction, but the parties are not required to re-issue their existing lists of documents.
Why this matters: This decision shows us how we could use an E-Trial Practise Direction to shift a case to an E-Trial, even as some counsel continue to resist. A court can and will order parties to streamline the administration of the digital case. The BC Supreme Court remarked that this case clearly met the criteria that supported adopting BC’s Practise Direction, which are that
• a substantial portion of the documents in this case consist of electronic material within the definition in the practice direction;
• the total number of discoverable documents exceeds 1,000;
• there are more than three parties to the proceeding.
For counsel outside of BC, the National Practise Direction for the Use of Technology in Civil Litigation and a practise direction in Alberta contain almost exactly the same wording.
There are also examples of judges going further and ordering parties to conduct an action as an E-Trial, even as some counsel continued to express the desire to work in paper.
