Case Report – Pre-action discovery denied as unlikely to identify wrongdoer

On November 24th, the Ontario Superior Court of Justice dismissed an application for pre-action discovery because the requested order was not certain to identify the alleged tortfeasor.

The applicant wished to identify a young, female snowboarder who ran into him and injured his ankle. He sought an order allowing him to review records belonging to the ski hill at which the accident happened, including photos of female members between the ages of 12 and 20 years of age who may have been at the hill on the date of the accident.

Madam Justice Warkentin dismissed the application, primarily because the requested order was not likely to lead to the reliable identification of the alleged tortfeasor. She said:

In this motion, there is nothing in the evidence before me to suggest the snowboarder in question was a season ticket holder or a snowboard rental user on the date in question. The applicant is seeking disclosure of a large number of personal records in the hopes that he may be able to identify the same young female skier that he saw only briefly during a collision where he was injured. It was his contention that he has sufficient recollection of the young skier in question to be able to reasonably identify her from membership or other photographs retained by the ski resort, notwithstanding that the applicant admits the snowboarder who collided with him was wearing ski clothing, including goggles, (albeit she may have removed them after the collision), a toque and other winter clothing.

Warkentin J. held that the chance of identifying the correct individual was “remote,” far below the relatively high degree of certainty she said courts should demand. The applicant relied on gender, age and attendance at the hill on the date of the accident as identifiers. The degree to which these data points narrowed the breadth of the proposed inspection is not clear from the record, but Warkentin J. clearly perceived that the order would affect a fair sized group of individuals.

Warkentin J. also held that (1) the age of the individuals who would be affected by the order was a relevant, though not determining, factor weighing against disclosure and (2) that the enactment of PIPEDA is evidence of public policy favoring the confidentiality of customer information.

Douglas. v. Loch Lomond Ski Area, 2010 ONSC 6483 (CanLII).

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