NATIONWIDE - CANADA: An introduction to eDiscovery

Canadian Perspectives on Global eDiscovery Trends and Emerging Best Practices

In 2025, legal teams worldwide are navigating increasingly complex eDiscovery demands fueled by rapid technological advances, diverse data sources, and changing regulatory requirements. This article examines international developments through the prism of Canada’s legal, regulatory, and technological landscape, and outlines future trends that will define the next phase of electronic disclosure in Canada.

Canadian eDiscovery Law and Best Practices

Canadian civil eDiscovery obligations emerge from a layered legal framework of provincial rules of court, court practice directions, judicial interpretation, and national best practice guidelines.

Provincial and territorial rules of court establish foundational requirements, while practice directions can offer granular guidance on timing, format, and technical standards.

The Sedona Canada Principles, now in their third edition (Sedona Conference Working Group 7, The Sedona Canada Principles: Addressing Electronic Discovery, 3rd ed (2022), 2022 CanLIIDocs 1167), provide consensus-based guidance on proportionality, defensible production and deletion, and the use of technology-assisted review. These principles are regularly cited by Canadian courts and regulators and serve as de facto standards for defensible and efficient processes.

Industry-specific eDiscovery guidance mandated by regulators is also prevalent in Canada. For example, in securities investigations, both the Ontario Securities Commission and the Canadian Securities Administrators expect parties to meet rigorous eDiscovery standards that mirror those found in civil litigation: requiring native format production, comprehensive metadata preservation, privilege logs with specific assertions, encouraging the use of technology-assisted reviews and forensic tools, and requiring timely cooperation and scope negotiation with Staff.

Judicial enforcement of eDiscovery best practices has historically been inconsistent, but recent cases signal growing judicial activism. In H2 Canmore Apartments LP v Cormode & Dickson Construction Edmonton Ltd., 2024 ABKB 424, the Alberta Court of King’s Bench emphasized the importance of early planning and penalized a party for its “careless approach to records disclosure and production” (at para 138).

Together, these sources now offer Canadian practitioners a coherent framework for managing discovery obligations, though disparities in technological competence and awareness of the developing case law among legal practitioners remain a significant barrier to consistent application.

Recent Legislative Changes and Regulatory Developments in Canada

Canadian legislative and regulatory reforms reflect global trends emphasising privacy, accountability, and the narrowing of discovery obligations.

Quebec’s Law 25 (Bill 64), fully in force as of September 2024, imposes stringent requirements around personal information handling, transparency, and auditability, raising the bar for legal teams managing data within or related to Quebec.

At the federal level, Bill C-27, introducing the Consumer Privacy Protection Act (CPPA) and the Artificial Intelligence and Data Act (AIDA), remains stalled in Parliament. Despite this uncertainty, the bill’s content signals an impending shift toward comprehensive AI and privacy regulation in Canada.

Amendments to the Canadian Competition Act expand the Competition Bureau’s Section 11 powers, allowing ex parte production orders not only in antitrust matters but also for market studies. These orders can now target foreign entities “carrying on business in or selling into Canada,” significantly widening the scope of potential disclosure obligations. 

Canada continues to diverge from the broader U.S. approach to relevance in discovery and scope of pre-trial discovery. In Quebec civil litigation, there is no automatic or broad‐based documentary discovery. Instead, a party must specifically request documentary production, and the court will order it only to the extent the documents sought meet the statutory test of relevance and materiality.  Similarly, Alberta’s materiality standard (adopted in 2010) limits disclosure to what is necessary for resolving material issues in dispute. In 2025, Ontario proposed civil procedure reforms that would go further, shifting toward a “reliance-based” model, requiring parties to disclose only documents they intend to rely on, plus known adverse documents. This movement toward more targeted disclosure will increasingly define Canadian discovery.

The Evolution of AI in eDiscovery

Canadian legal professionals have used AI tools in eDiscovery since at least 2018, particularly predictive coding, clustering, and advanced text analytics. The release of OpenAI’s ChatGPT in late 2022 triggered a new wave of interest in generative AI.

By 2023, major eDiscovery platforms began embedding generative AI capabilities into review tools to assist with summarization and categorisation. However, most generative tools are trained on U.S. legal data and assumptions, making their outputs less reliable in Canadian contexts, particularly given Canada’s narrower discovery scope. Without retraining on Canadian principles, these tools present risks of inaccuracy and overproduction.

Looking Ahead: Predictions for Canadian eDiscovery

Over the next twelve months, privacy legislation reforms are expected to intensify globally, potentially catalysing Canada’s stalled Bill C-27 reforms and setting a precedent for AI transparency and accountability internationally.  Simultaneously, professional associations and regulatory bodies are likely to establish clearer standards for technical competence and AI use, potentially including jurisdiction-specific certifications for AI tools.

Canadian provincial regulators, especially Quebec’s enforcement of Law 25, are anticipated to lead rigorous compliance audits, prompting international firms operating in Canada to adopt proactive, jurisdiction-aware data governance strategies.  

AI-driven predictive analytics and early case assessment tools, specifically tailored to local jurisdictional needs, are expected to emerge, offering greater jurisdictional alignment and enhanced defensibility in Canadian litigation.

Metadata Will Emerge as a Key Factor in eDiscovery Disputes 

We have examples today of Canadian judges refusing to give weight to documents without metadata, but enforcement of proper preservation and production of metadata has been sparse, to date. As increasingly sophisticated AI techniques enable the creation of deepfake audio, fabricated emails, and image manipulation, metadata will become a critical line of defense in eDiscovery.  Metadata such as timestamps, geolocation tags, chain-of-custody logs, and embedded device identifiers, will become increasingly important to provide an evidentiary fingerprint that is difficult for generative systems to replicate convincingly. More and more, legal teams will have to prioritise metadata integrity and transparent preservation methods to ensure that AI‑created fabrications are efficiently identified and excluded from the court record.

Bridging Criminal Disclosure and Civil eDiscovery

eDiscovery practices in Canadian criminal law have historically fallen short of civil best practices and remain ill-equipped to manage the dramatic rise in digital evidence and the dangers posed by artificial intelligence. Police, the Crown and defence counsel must now master sophisticated collection, review, and authentication tools. Civil eDiscovery has long wrestled with identical challenges, and the recent judicial activism enforcing national guidelines in civil litigation can offer a ready framework to follow in the criminal context.

By adopting The Sedona Canada Principles, deploying defensible forensic-collection platforms, and ensuring metadata integrity through transparent provenance tracking, the police and Crown counsel can meet crucial timelines for criminal trials mandated by the Supreme Court of Canada and uphold Charter-protected rights while reducing legal risk.

As criminal defence lawyers catch up to their civil counterparts, we expect criminal courts to become less tolerant than they have in the past with Crown disclosure that falls short of civil expectations.

A Jurisdiction-Specific Approach to eDiscovery Modernization

As eDiscovery practices evolve in Canada, legal professionals must adopt new technologies while ensuring they align with Canadian laws and procedural standards. The integration of AI, the tightening of privacy laws, and the shift toward narrower disclosure standards signal a distinctly Canadian path, one that prioritises proportionality, defensibility, and regulatory alignment. To remain effective and credible, counsel must adopt tools and practices tailored to Canada’s legal landscape, drawing on established principles like The Sedona Canada Principles and responding proactively to emerging judicial expectations and compliance demands.