Case Report – More on proportionality from The Rock’s top court

On September 14th, Chief Justice Green and and Justice White, on behalf of the Newfoundland and Labrador Court of Appeal issued a principled judgment on quashing subpoenas in civil proceedings. On applying the relevance standard, the justices say:

Additionally, even if the material sought can be said to be relevant in this sense, there may be, as Re General Hospital Corporation indicates, other grounds on which a person subpoenaed may be able to quash the subpoena or at least postpone its execution. Aside from issues involving irregularity in issuance, and other grounds of inadmissibility, such as privilege and specific statutory exceptions, most other grounds are a manifestation of the jurisdiction of the court to control an abuse of its process. This involves taking into consideration the interests of the subpoenaed witness as well as the interests of the litigants by looking at the actions, motivations and purposes of the party issuing the subpoena as well as the impact on the person subpoenaed. Insofar as the litigant issuing the subpoena is concerned, the bona fides of the issuer may be inquired into with a view to determining whether the subpoena has been issued for an improper purpose. With respect to the subpoenaed person, the court could inquire into such issues as whether, given the significance of the evidence and the timing of the request for production, the request can be said to work an unnecessary hardship or would be oppressive as to the number, nature or breadth of the documents required, considering the time and expense involved in obtaining the information and the degree of private, personal information involved. This is essentially a balancing exercise, involving the application of the proportionality principle recognized by this Court in Szeto et al v. Field, 2010 NLCA 36 (CanLII), 2010 NLCA 36.

The matter at issue involved a subpoena duces tecum issued to the live-in partner of an individual from whom the applicant was seeking child and spousal support. The applicant sought specific information about the new partner’s financial affairs. The justices held that such information is not necessarily relevant when the quantum of support is in issue. Rather, they said, a more “nuanced” analysis is required:

The Court must consider how and to what extent any of that information may be necessary to resolve the specific support issues as they present themselves in the context of the specific case. Because of the potential impact on the partner’s privacy interests, if that information should be provided, the timing becomes a relevant consideration, as well as whether the information could be obtained in a less intrusive way from another source

In a way, this judgment is a follow-on to the Chief Justice’s exposition on proportionality in the May decision Szeto v. Dwyer, noted in the quote above. Both judgments seem to recognize a that personal privacy should be considered as part of the proportionality analysis.

Carroll (Re); Kent v. Kent 2010 NLCA 53.

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