Saturley v. CIBC World Markets Inc., 2012 NSSC 226

SUPREME COURT OF NOVA SCOTIA Citation: Saturley v. CIBC World Markets Inc., 2012 NSSC 226 Date: 20120613 Docket: Hfx No. 305635 Registry: Halifax Between: Fredrick Thomas Saturley Plaintiff v. CIBC World Markets Inc. Defendant LIBRARY HEADING Judge : The Honourable Justice Michael J. Wood Heard: May 14, 2012, in Halifax, Nova Scotia Written Decision: June 13, 2012 (Re Trial Motions) Subject: Evidence - Admission of Electronic Evidence

Summary: Defendant tendered exhibits consisting of both printed and electronic versions of stock trading records. The Plaintiff opposed the admission of this evidence.

Issue: Has the Defendant satisfied the requirements for the admission of the electronic trading records? Result: The exhibits were admitted as real evidence because they represented information automatically recorded by the Defendant ’ s computer system. Issues of reliability of the data go to the weight to be given to the evidence rather than its admissibility. Any inferences to be drawn from the records will be considered at the conclusion of the trial. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: Saturley v. CIBC World Markets Inc., 2012 NSSC 226 Date: 20120613 Docket: Hfx No. 305635 Registry: Halifax Between: Fredrick Thomas Saturley Plaintiff v. CIBC World Markets Inc. Defendant

Judge: The Honourable Justice Michael J. Wood Heard: May 14, 2012, in Halifax, Nova Scotia Written Decision: June 13, 2012 (Re Trial Motions) Counsel: George W. MacDonald, Q.C., Jack Graham, Q.C. and Kiersten Amos, for the plaintiff Michael S. Ryan, Q.C., John A. Keith, Christy L. Sandles and Jack K. Townsend, for the defendant By the Court : [ 1 ] This proceeding involves a claim for unjust dismissal by the plaintiff, Fredrick Saturley. He had been an investment advisor with the defendant, CIBC World Markets Inc., until December 3, 2008.

CIBC says that his employment was terminated for cause because he was engaged in discretionary trading for clients when he was not licensed to do so. [ 2 ] The discretionary trading allegation is that Mr. Saturley did not obtain proper instructions from clients prior to placing the trades in question, or did not place the trades immediately following receipt of instructions. [ 3 ] In order to establish the allegation of cause, CIBC intends to prove precisely when trades were entered for clients and on what terms.

They also hope to establish the context for the impugned trades by providing details of other trades allegedly entered by Mr. Saturley on the same day. [ 4 ] CIBC has produced two volumes of trading records in both electronic form and hard copy. One volume purports to contain details of all trades in equities and options entered using Mr. Saturley ’ s user code and password between February 1, 2007 and December 31, 2007 (exhibit 14).

The other contains equivalent records for all trades between January 1, 2008 and October 31, 2008 (exhibit 15). [ 5 ] Although exhibits 14 and 15 are in paper form, this information was originally obtained and disclosed electronically. The electronic version of the information was marked as exhibit 70. The evidentiary issues which have arisen result from the fact that this evidence is, in essence, electronic information. [ 6 ] This decision deals with the admissibility of these exhibits. [ 7 ] We have now completed twenty-three days of trial. The plaintiff has closed his case and CIBC is in the middle of theirs.

A further eighteen trial days have been set for October, 2012. In the circumstances, this decision will only deal with the admissibility of exhibits 14, 15 and 70. If this evidence is determined to be admissible, the weight to be attributed to it will be assessed at the conclusion

of the trial in light of the complete evidentiary record. POSITIONS OF THE PARTIES CIBC [ 8 ] CIBC argues that these exhibits are electronic information which was automatically generated by computer and should be admitted as real evidence. In the alternative, if the exhibits are considered to be documents and not real evidence, CIBC submits that they have been proven as direct evidence or, in the further alternative, fall within an exception to the hearsay rule. Saturley [ 9 ] Mr.

Saturley argues that the exhibits are different from the original electronic trading records and have been changed by human intervention. He says that the original electronic records were never disclosed prior to trial. Mr. Saturley challenges the reliability of the exhibits and says that their admission would violate the best evidence rule. [ 10 ] Mr. Saturley also submits that CIBC has not met the requirements for proof of electronic information set out in Civil Procedure Rule 51.11. ADMISSION OF ELECTRONIC EVIDENCE [ 11 ] Electronic information may be considered either real or documentary evidence.

If it is real evidence, it simply needs to be authenticated and the trier of fact will then draw their own inferences from it. Examples of real evidence include photographs and physical objects. [ 12 ] Documents also need to be authenticated and are subject to a number of other evidentiary requirements. For example, the best evidence rule may require production of an original of the document.

Where the document includes information from third party sources, it will be subject to the hearsay rule and the court will have to be satisfied that it falls within an exception to that rule if it is to be introduced for the truth of its contents. [ 13 ] If electronic information is determined to be real evidence, the evidentiary rules relating to documents, such as the best evidence and hearsay rules, will not be applicable. [ 14 ] In Canada, electronic evidence is often considered to be documentary for purposes of admissibility.

Although there are some academic writings on the issue, there appears to be relatively little judicial analysis of when electronic information should be treated as real evidence, rather than documentary.

This distinction is important in deciding the admissibility issue raised by the exhibits in this proceeding. [ 15 ] The importance of understanding the difference between real and documentary electronic evidence was the subject of comment in Electronic Evidence in Canada (Underwood and Penner, Carswell, 2010 - Release 2) at p. 12-8: Canadian courts have not widely considered the distinction between computer-generated records and electronic records that capture the

statements or observations of human declarants. Generally, our courts have treated records containing computer-generated informationin the same fashion as documentary evidence and admitted them under an exception to the hearsay rule, even though the content of therecords is not hearsay. Perhaps more alarming is the prospect that ESI [Electronically Stored Information] that is real evidence isrefused entry because the information cannot be shoe-horned into an exception to the rule against hearsay evidence.

In accepting suchESI under an exception to the hearsay rule, or in refusing to do so, courts do not undertake any analysis at the admissibility stage toproperly classify the ESI as either real or documentary evidence. Rather, the determination of admissibility often proceeds on theunstated (and often incorrect) assumption that the ESI is documentary in nature, and thus hearsay. [16] Underwood and Penner argue that electronic information should be introduced as real evidence where it consists of data whichis captured automatically without human intervention.

In these circumstances, concerns such as hearsay do not arise. A useful analysisof this issue is found in the following passage from pp. 12-5 to 12-6 of Electronic Evidence in Canada, supra: A record that is created by a computer system whose function it is to capture information about cellular telephone calls would beintroduced as real evidence, and the record could be relied upon for the truth of its contents without resort to any exception to the hearsayrule.

Because the information that is captured (the date, time and duration of the call, for example) is recorded automatically withoutbeing filtered through a human observer, the condition for real ESI evidence is satisfied. It is also important to note that the informationrecorded is itself not an out-of-court statement by a human declarant, but rather it consists of objective information that is captured andrecorded by an automated process.

On the other hand, if a record is created by a human sitting at a computer keyboard and entering data, the ESI embodied in the recordcould not be tendered as real evidence if it is offered for the truth of its contents, and its proponent would have to bring the record withinthe ambit of an exception to the rule against hearsay. The record would be documentary evidence, and subject to the same limitations aswould apply to a conventional document.

The information contained in the record has been filtered through a human observer, and theESI reflects the human declarant’s out-of-court statements concerning what he or she observed, heard or did. It is not real evidence. [17] The idea that computer generated records may be accepted as real evidence has received some judicial support in Canada. In R.v. McCulloch, [1992] B.C.J. 2282, the British Columbia Provincial Court considered the admissibility of data generated from a tracingapparatus installed on a customer’s telephone by the British Columbia Telephone Company.

The Court concluded that such recordsshould be admitted as real evidence because of the automatic nature of the recording: 18 From these decisions a principle can be distilled. Where evidence is automatically recorded by any means, other than by humanlabour, and the evidence so recorded can be reproduced in any form, intelligible to the human mind, the reproduction is admissible asreal evidence. The recording may be mechanical, chemical, electronic, photographic, or auditory, to name a few examples, and therepoduction (sic) may be by computer printout, audiovisual playback, photographs, or other means.

The weight to be attached to suchevidence will depend on the accuracy and integrity of the process employed. 19 The printouts of the tracing apparatus in the case at bar are admitted as real evidence, and the exhibits marked for identificationwill be admitted as exhibits and numbered. [18] In R. v. Smeland (1995), (BC CA), 54 B.C.A.C. 49, the British Columbia Court of Appeal dealt withelectronic evidence from an alarm system which was tendered to show that the accused had entered certain premises during the relevanttime period.

The Court discussed and relied upon the accuracy of the computer records from the security company which monitored thealarm system. Although there was no discussion of the distinction between real and documentary evidence, the Court, at para. 21,referenced the English Court of Appeal Decision in R. v. Spiby (1990), 91 C.R. App. R. 186. In that case, the Court had accepted as realevidence computer records detailing telephone calls made from a hotel room. [19] It appears that the British Columbia Court of Appeal in Smeland accepted that the computer records could be entered as realevidence. [20] In R. v.

Hall, [1998] B.C.J. No. 2515, the British Columbia Supreme Court had to decide the admissibility of computergenerated billing records for various telephone accounts. The accuseds were charged with theft of telecommunication services using

ghost accounts. The Court analyzed the admissibility issue in significant detail. There were a number of alternative arguments presented by the Crown in support of the admissibility of this evidence. The Court concluded that the records fell within the common law exception to the hearsay rule for business records, but also found them admissible as real evidence because they were generated without human input. The Court relied upon the English Court of Appeal decision in R. v.

Spiby in support of that conclusion (see para. 66). [ 21 ] I am satisfied on the basis of these authorities that electronic information which is automatically generated by computer without human intervention should be considered for admission as real evidence, rather than documentary evidence. I will now consider what is sufficient to establish admissibility of such evidence. [ 22 ] The first step in the admissibility analysis is to determine whether the party offering the evidence can establish on a balance of probabilities that it fits within the parameters of real evidence as discussed above.

That means, it must be data collected automatically by a computer system without human intervention. It appears that this could include a threshold consideration of reliability; however, it is important to remember that reliability is primarily an issue that goes to the weight to be given the evidence and not its admissibility. [ 23 ] In McCulloch , the Court discussed the issue of reliability at the conclusion of para. 18: ...

The weight to be attached to such evidence will depend on the accuracy and integrity of the process employed. [ 24 ] In Hall , there was evidence that some of the computer generated records contained errors. This did not prevent them from being entered as real evidence for the reasons set out in para. 67: 67 In the case at bar the defence contends that the records in question, specifically the billing records in Exhibit A and the records in Exhibit 19, Tabs 21-26, contain billing records for the phones in question.

The defence contends that Exhibit 19, Tab 21 in particular, demonstrates that even though there is no human input involved in this computer generated record there are a certain number of obvious errors. Thus, according to the bill, from time to time the phone number to which the bill relates is shown as being in different geographic locations simultaneously. The Crown concedes that these are instances of errors made by the computer. There is no specific evidence before the court as to the actual cause of those errors.

The Crown observes that such errors represent a minuscule proportion of the information portrayed on the computer printouts. I agree. The evidence satisfies me that, from a business point of view, the very existence of Rogers Cantel and B.C. Tel is predicated upon their respective computer information systems being accurate, save for the odd error. On the evidence before me I am satisfied that this is so. I accept that the computer systems at Rogers Cantel, B.C.

Tel and Radio Shack are in fact reliable. [ 25 ] The Court also made the following comments on the role of reliability in relation to admission of electronic evidence as hearsay: 64 As common experience and the evidence above show, even computers are subject to error. These problems, however, go to weight rather than admissibility. No evidence is perfect, and hearsay evidence need not be perfectly reliable for admissibility; the evidence admitted in the cases of Smith, supra , and Khan, supra , for example, was far more frail than the evidence at bar.

This Court can seek further solace in the fact that the usual fears of hearsay evidence identified in Smith at 272 - - namely perception, memory and credibility - - are irrelevant to a computer-generated record. [ 26 ] In my view, these comments are equally applicable to admission of the records as real evidence. [ 27 ] Once a court is satisfied that electronic information has been generated in a manner that meets the criteria for admission as real evidence, it is still necessary to consider whether the specific evidence before the court represents the electronic information.

This may be accomplished by having a witness testify that the paper copy was printed from the original source, as was the case in R. v. Hall and R. v. Spiby . If the information comes before the court in electronic form, it will be necessary to have a witness confirm that it comes from the original source. It may also be necessary to have evidence concerning the custody and protection of that information from the original source to the court, particularly if it is transferred to a number of different media.

[ 28 ] As noted earlier, if electronic information does not meet the criteria for admission as real evidence, it may still be admitted if it satisfies the requirements for admission of documentary evidence. It is possible that a given item of electronic information may have aspects of both real and documentary evidence. For example, an e-mail in electronic form will include electronic data identifying the computer on which it was created and when it was sent. That information is added automatically by the computer software and would likely constitute real evidence.

If the content of the e-mail is being introduced for its truth, it would be considered a document and subject to admissibility as such. EVIDENCE ACT PROVISIONS [ 29 ] Electronic records are dealt with in ss. 23(

A) to 23(

H) of the Evidence Act , R.N.S., 1989, c. 154. These provisions help clarify the manner in which electronic information may be admitted as evidence. They provide as follows:

Interpretation of Sections 23A to 23H 23A In this

Section and Sections 23B to 23H, (a) “data” means representations, in any form, of information or concepts; (b) “electronic record” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device and includes a display, printout or other output of that data, other than a printout referred to in subsection 23D(2); (c) “electronic records system” includes the computer system or other similar device by or in which data is recorded or stored, and any procedures related to the recording and storage of electronic records. 2002, c. 17, s. 2 .

Effect on common law or statutory rule 23B

(1) Sections 23C to 23H do not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence.

(2) A court may have regard to evidence adduced under Sections 23C to 23H in applying any common law or statutory rule relating to the admissibility of records. 2002, c. 17, s. 2 . Burden of Proof 23C The person seeking to introduce an electronic record in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be. 2002, c. 17, s. 2 . Best evidence rule 23D

(1) In any legal proceeding, subject to subsection (2), where the best evidence rule is applicable in respect of an electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the data was recorded or stored.

(2) In any legal proceeding, an electronic record in the form of a print-out that has been manifestly or consistently acted on, relied

upon or used as the record of the information recorded or stored on the printout is the record for the purposes of the best evidence rule. 2002, c. 17, s. 2 . Integrity of electronic records system 23E

(1) In the absence of evidence to the contrary, the integrity of the electronic records system in which an electronic record is recorded or stored is presumed in any legal proceeding (

a) by evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic record, and there are no other reasonable grounds to doubt the integrity of the electronic records system; (

b) if it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or (

c) if it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record. 2002, c. 17, s.2 .

Determination of admissibility 23F For the purpose of determining under any rule of law whether an electronic record is admissible, evidence may be presented in any legal proceeding in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record. 2002, c. 17, s. 2 .

Affidavit 23G The matters referred to in subsection 23D(2) and Sections 23E and 23F may be established by an affidavit given to the best of the deponent’s knowledge or belief. 2002, c. 17, s.2 . Cross-examination of deponent 23H

(1) A deponent of an affidavit referred to in

Section 23G that has been introduced in evidence may be cross-examined as of right by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced.

(2) Any party to the proceedings may, with leave of the court, cross-examine a person referred to in clause 23E(c). 2002, c. 17, s. 2 . [ 30 ] It is important to note s. 23B(1) which specifically provides that the common law and statutory rules relating to admissibility of records are not modified except those relating to authentication and best evidence. [ 31 ]

Section 23(

C) indicates that electronic records are authenticated by evidence capable of supporting a finding that the record is what the person claims it to be. For data automatically collected by a computer system, this can be accomplished by a witness who is

able to testify about the operation of the computer system and identify the potential exhibit as coming from it. [ 32 ] If it is necessary to consider the best evidence rule, s. 23(D)(1) states that the rule is satisfied upon proof of the integrity of the electronic records system in which the data was recorded or stored.

Section 23E sets out a presumption of the integrity of the system upon presentation of certain evidence, including evidence to confirm that the system was operating properly. ADMISSIBILITY OF CIBC TRADING RECORDS [ 33 ] The admissibility of exhibits 14, 15 and 70 requires a consideration of some of the evidence presented to date, including the testimony of Messrs. Tsotsos and Archer.

Counsel for CIBC indicated that he had no other evidence to call with respect to the admissibility issue, and both parties requested that I give my decision before the trial resumes in October. [ 34 ] Since the trial has yet to be concluded, I do not intend to comment on the weight to be given to any evidence, including the testimony of Messrs. Archer and Tsotsos, as that is a question that should be determined once all of the evidence has been presented.

I will only comment on the testimony which has been presented to the extent necessary to dispose of the admissibility issue. [ 35 ] James Tsotsos is employed as Customer Support Manager with FIS, which sells and supports software to the financial services industry. They have supplied CIBC with a program called FIS Equities, which allows the trading of equities and options. [ 36 ] FIS Equities is used by CIBC employees to buy and sell equities and options for clients.

The program also stores data with respect to these transactions for CIBC on the FIS computer servers. [ 37 ] After a period of one year, FIS transfers the trading data to a “ flat file ” on their server. [ 38 ] CIBC has frequently requested retrieval of trade data from FIS. [ 39 ] In April, 2011, CIBC made a request to FIS for retrieval of trade data from their records. CIBC specified which categories of data it was seeking.

It indicated that it was looking for certain information with respect to all equity and option trades for the investment advisor code ASB for the period from January 1, 2007 to October 31, 2008. [ 40 ] Mr. Tsotsos retrieved the information requested from the flat file on the FIS server, imported it into a spreadsheet program and sent this to CIBC in electronic form. Mr. Tsotsos did not modify the data once it was transferred into the spreadsheet. There was a separate spreadsheet for each month. [ 41 ] Kenneth Archer is employed by CIBC as a Senior Business Consultant.

Between 2000 and 2005, he was part of the CIBC team which worked with FIS in the development and testing of the FIS Equities program. Mr. Archer ’ s current position includes responsibility for identifying, implementing and testing upgrades to the FIS Equities program. [ 42 ] Mr. Archer has frequently requested retrieval of trade data from FIS. [ 43 ] In April, 2011, Mr. Archer received the spreadsheets prepared by Mr. Tsotsos. He took this data and imported it into two new spreadsheets, one for 2007 and the other for 2008.

He did not transfer all of the data fields contained in the initial e-mailed spreadsheets from Mr. Tsotsos.

[ 44 ] Mr. Archer changed the titles on several of the spreadsheet columns in order to clarify what was encompassed in those fields. In a few instances, he changed the content of a column from a symbol to a descriptive word, with the intent that the information be more understandable to a reader. [ 45 ] The two spreadsheets prepared by Mr. Archer are contained in exhibits 14, 15 and 70. [ 46 ] The first step in the admissibility analysis is to consider whether the electronic data captured and stored by the FIS Equities program is capable of being considered real evidence.

I am satisfied that it can be. [ 47 ] An investment advisor who wishes to buy or sell equities or options for a client must do so by entering information in the FIS program. This information is electronically transmitted to the appropriate Stock Exchange and the trade executed. FIS Equities automatically records data with respect to the trade, such as: date and time entered, client account number, name of the security, quantity and price.

This program has all of the indicia of electronic information which could be admitted as real evidence. [ 48 ] With respect to the question of threshold reliability, it is important to consider the nature of the FIS Equities program. This was specifically developed for use by CIBC and relied upon to store and retrieve trade information which, presumably, is important to their business.

There is no evidence, at this point, of any errors in the entering, storage or retrieval of data from the program. [ 49 ] Having determined that the FIS Equities trade data is capable of being considered real evidence, it is necessary to determine whether the exhibits represent that information and can be admitted on that basis. [ 50 ] It appears as if FIS Equities records a broad range of information for each trade. The request by CIBC to FIS was for specific fields of data with respect to all trades between January 1, 2007 and October 31, 2008. Mr.

Tsotsos retrieved the data in those fields and automatically imported it into a spreadsheet program. I am satisfied that the spreadsheet program simply represented a medium by which the data could be captured and displayed in a fashion which could be presented to the parties and the Court. It is the data which represents the potential evidence and not the spreadsheet itself. The information in Mr. Tsotsos ’ spreadsheets is electronic data, which is capable of being entered as real evidence. [ 51 ] The transfer of the spreadsheets to Mr.

Archer and his creation of the exhibits adds a potential element of complication. The plaintiff argues that by adjusting some of the data and transferring some, but not all, of the original data to the exhibits, Mr. Archer has changed the admissibility of that evidence. I do not agree. [ 52 ] The changes in column headings and substituting descriptive words for symbols in a few columns are not material. The decision to select certain data for inclusion in the exhibits does not affect the integrity of this information.

It is no different than if the original CIBC request had been for the more limited range of data fields now found in the exhibits. [ 53 ] I am satisfied that the electronic data originally captured by the FIS Equities program has been incorporated in exhibits 14, 15 and 70, and meets the authenticity requirements of s. 23C of the Evidence Act . These exhibits will be admitted as real evidence. [ 54 ] Counsel for Mr. Saturley argued that the exhibits do not represent the best evidence because they are not the original electronic data.

Since I have found the exhibits can be entered as real evidence, the best evidence rule does not apply; however, I am satisfied, for the reasons outlined above, that the original electronic information is found in the exhibits. [ 55 ] The evidence presented by CIBC establishes that the FIS computer system was operating properly and, therefore, the presumption of system integrity found in s. 23E of the Evidence Act applies. In light of this s. 23D(1) of the Act , provides that the best evidence rule is satisfied.

APPLICATION OF CIVIL PROCEDURE RULE 51.11 [ 56 ] Civil Procedure Rule 51.11(4) and (5) provides as follows: How to prove a document, or electronic information . . . . 51.11

(4) A party who seeks to prove a document or electronic information, the authenticity of which is not admitted, may do so in the same way another document or electronic information is proved except the party must present evidence proving authenticity and, unless the judge directs otherwise, each of the following applies. (

a) the original of a document must be available for inspection or introduction; (

b) the original source of electronic information must be available for inspection; (

c) the document or electronic information is not shown to the judge, or read aloud, until the judge rules on authenticity.

(5) Electronic information must be proved on a storage medium in which it cannot be rewritten, unless the judge directs otherwise. [ 57 ] This rule sets certain requirements for the admission of electronic information where there is no admission of authenticity. It also includes discretion in the judge to dispense with any of these requirements. [ 58 ] Counsel for Mr. Saturley argued that the original source of electronic information was not available for inspection. In particular, the spreadsheets prepared by Mr. Tsotsos were not made available until the trial was underway. Counsel for Mr.

Saturley argued that the Tsotsos spreadsheets were the original source of data and production at trial without prior disclosure does not satisfy the requirements of CPR 51.11(4)(b). [ 59 ] In my view, the original source of electronic information in this case is the flat file on the FIS server. This was not available at trial for inspection; however, I am not satisfied that this is necessary given the evidence that was presented. The testimony of Messrs.

Archer and Tsotsos is sufficient to show that the exhibits contain the electronic records from FIS and therefore meet the authenticity requirements of s. 23C of the Evidence Act . [ 60 ] I do not believe that the failure to have the original FIS data available for inspection at trial, or the failure to previously disclose the Tsotsos spreadsheets should affect the admissibility of the exhibits as real evidence, and I admit them on this basis. [ 61 ] Counsel for Mr.

Saturley also argued that CPR 51.11(5) had not been complied with because the CD containing the electronic records (exhibit 70) was not shown to be protected from rewriting. There was no specific evidence presented on this point. In my view, the purpose of this provision is to ensure that the electronic evidence which becomes a court exhibit can not be altered, even by inadvertence. It does not require that the data be held on a secure medium from the time of its original extraction from the source.

This latter issue goes to the reliability and weight to be given to the evidence and not its admissibility. [ 62 ] CPR 51.11(5) directs that electronic evidence be secured and this should be the norm. In this case we also have the printed records (exhibits 14 and 15) and so any concerns about alteration of the evidentiary record are minimized. Exhibit 70 was entered to assist the parties in examining the witnesses with respect to the preparation of the trading records. If it were excluded, exhibits 14 and 15 would still be part of the trial evidence.

In these circumstances, I will allow exhibit 70 to be entered despite the potential non-compliance with CPR 51.11(5).

[ 63 ] CONCLUSION [ 64 ] I agree with the submissions of CIBC that exhibits 14, 15 and 70 can be introduced as real evidence representing the data captured by the FIS Equities program. I make no comment on what inferences might be drawn from or the weight, if any, to be given to this information as I will have to consider those issues at the conclusion of trial and after hearing submissions from both parties. _____________________________ Wood, J.