On April 23rd, a panel of the Divisional Court (Ontario Superior Court of Justice) affirmed an order that permitted a producing party to redact personal information from otherwise producible records provide it could establish (a) that the redacted information is irrelevant and (b) that its disclosure would infringe the privacy interests of affected individuals.
The parties filed foreign law affidavits that disputed the applicable test in Germany, which permits production based on the so-called “legitimate interests” exception. The motions judge rejected the producing party’s argument that, to show appropriate respect for EU and German law, an Ontario court ought to default to the redaction of all personal information subject to proof that redaction would compromise the effectiveness of the fact finding process. Rather, the judge held that the legitimate interest in production is “baked into” our production rule, meaning that we can respect EU and German law while defaulting to production, though a producing party may justify redaction of irrelevant (personal) information if producing it would infringe public interests (including privacy interests) worthy of protection.
The Divisional Court affirmed the order. In doing so it reconciled the test for production under EU and German privacy law and under domestic law in Ontario as stated in McGee v London Life Insurance.
Harris v. Bayerische Motoren Werke Aktiengesellschaft et al., 2024 ONSC 2341 (CanLII).
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