Ontario master questions state of jurisprudence on OSR privilege

On January 22nd, Master Muir of the Ontario Superior Court of Justice held that answers to discovery questions that would disclose information contained in the Ontario Student Records of non-party students should not be answered based on the statutory privilege in section 266 of the Education Act.

Master Muir held that he was bound by Pandremenos v Riverdale Collegiate Institute, [1998] OJ No 1480 (GD), but not without expressly stating his disagreement with an interpretation of section 266 that precludes access to information contained in an OSR (as opposed to an OSR itself). He said:

In my view, the relevant portions of the Act make it clear that it is the OSR file itself that is privileged and not necessarily all of the information that may find its way into the OSR. Section 266(2) of the Act creates the privilege. It provides that “a record [that is, the OSR] is privileged” [emphasis added]. It says nothing about the specific information that section 265(1)(d) of the Act requires the principal to collect for inclusion in the OSR. This is to be contrasted with sections 266(9) and 266(10) of the Act. Section 266(9) states that “no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record” [emphasis added]. Section 266(10) provides that “every person shall preserve secrecy in respect of the content of a record” [emphasis added]. It is noteworthy that the word “content” is absent from section 266(2).

In my view, if the legislature had intended to extend the privilege to any piece of information that may end up in an OSR (such as something as basic as a student’s address or date of birth, for example) it would have used much broader language that would clearly extend the privilege to the contents and to all information that may be found in an OSR. In my view, the interpretation suggested by Northmount could lead to an absurd situation where certain basic information about an individual could never be disclosed or introduced into evidence in a civil proceeding simply because he or she happens to be a student to whom the Act applies and the information in question can also be found in his or her OSR.

Master Muir noted other decisions by the Court in which discovery was allowed because the information at issue was not required to be contained in the OSR by the Ministry’s guideline. Master Muir said these decisions are distinguishable from cases in which the information at issue is required to be contained in the OSR as in Pandremenos and the matter before him.

Robinson v Northmount School for Boys, 2013 ONSC 1028 (CanLII).

Ontario decision deals with scope of litigation privilege, keyword searches and other e-discovery issues

On March 25th, the Ontario Superior Court of Justice issued a decision in which it held that that communications sent and received in order to build a public relations strategy ancillary to ongoing litigation were not subject to litigation privilege. Master McLeod stated:

I am not however persuaded that strategy associated with public relations, media relations or lobbying ancillary to litigation would or should be protected. The notion of the adversarial advocate and the zone of privacy cannot be stretched so far as to protect the strategy of the party in the court of public opinion.

This is the most principled finding in a decision that also canvasses and provides helpful comment on a number of issues related to the production of e-mails. Master McLeod remarks, for example, that a search for documents containing keywords is a means of discovering relevant and privileged documents but does not “render the document automatically relevant” or “answer the question of privilege.”

Coincidentally, Craig Ball recently posted on the same issue in, “Are Documents Containing Agreed-Upon Keywords Responsive Per Se?” Ball urges counsel to address the responding party’s access to responsive documents expressly in the discovery planning process. He also raises the motivation a party may have to demand a full set of responsive documents:

We may be gravitating to a place where counsel’s countermanding a machine’s “objective” characterization of a document as responsive will be viewed with suspicion. Responding parties see electronic culling as just an extension of counsel’s judgment; but, requesting parties often see electronic culling as an objective arbiter of responsiveness. Face it: requesting parties believe that opponents hide documents.

If you follow e-discovery developments, both this case and the Ball post are worth a good read.

Kaymar Rehabilitation v Champlain CCAC, 2013 ONSC 1754 (CanLII).

Recent OCA journalist-source case a “squeaker” with good statements of principle

The Court of Appeal for Ontario’s March 27th decision in 1654776 Ontario Limited v Stewart is a journalist-source privilege decision in which the Court made some significant statements of principle in protecting a journalist’s confidential sources.

The case is about whether the Court would reveal the identities of two insiders to the attempted takeover of BCE in 2008. The insiders provided information about the tenor of confidential negotiations to the Globe and Mail, who published the information and protected its sources. The plaintiff claimed the insiders breached the Securities Act by making false and materially misleading statements. He sought their identities, stressing that the insiders were not whistleblowers leaking information about wrongdoing and, rather, had merely given business information to a journalist and used the Globe to manipulate the markets.

Here are the statements of principle Justice Juriansz made on behalf of the Court:

It is an error of law to apply an elevated standard in the first step of the Norwich Pharmacal test because an expressive interest is involved; at the first step, an applicant must merely demonstrate a bona fide claim. This finding weighs against protection.

Courts should recognize that “generally” the relationship between a journalist and a confidential source should be “sedulously fostered”; concerns about the value of the specific source-journalist relationship at issue should be considered in weighing competing interests. This finding weighs in favour of protection.

On the facts, Justice Juriansz protected the sources, noting the case was “difficult.” The lack of evidence to support the plaintiff’s assertions was significant to Justice Juriansz as was the plaintiff’s alternative potential remedy against several corporate actors. Justice Juriansz did not devalue the journalist-source claim because the insiders were not whistleblowers; making information about the transaction available was in the public interest, he held. However, given the plaintiff’s attack on the quality of the sources’ information, Justice Juriansz held that the public’s right to know was a neutral factor in the circumstances. It seems, therefore, that if the plaintiff had a stronger factual basis for his claim lawsuit he would have prevailed in his quest to identify the anonymous sources.

1654776 Ontario Limited v Stewart, 2013 ONCA 184 (CanLII).

Alberta court finds that grievance response is privileged

On February 26 the Court of Queen’s Bench of Alberta held that an employer’s response to the first step meeting in a grievance procedure was subject to settlement privilege.

Communications made in a grievance meeting are customarily treated as subject to settlement privilege, but whether the privilege extends to an employer’s formal response to the meeting is questionable. Here, the Court treated the grievance response as part of the continuum of settlement communications. It said:

If these meetings are to be open in an attempt to resolve the grievance it seems clear that the discussions and documents flowing therefrom should remain confidential. The decision letter of April 30 is part of a settlement negotiation which falls within the protected category of settlement privilege and is not producible.

The Court also discussed the implied waiver doctrine and the principled exception to settlement privilege and found neither justified a production order in the circumstances.

Thomson v University of Alberta, 2013 ABQB 128 (CanLII).

Court orders theraputic records to be returned to their maker despite privacy claim

On March 8th the Ontario Superior Court of Justice ordered the return of therapeutic records allegedly obtained through fraudulent means despite an argument that such return would cause harm to the individuals to whom the records related.

The records were created by a psychotherapist and hypnotist alleged to have held himself out as a medical doctor. He took notes of sessions with a number of complainants that the police seized but that were no longer needed for investigation or for trial. The Crown asked the Court to hold the return of the records based on section 37 of the Canada Evidence Act because returning the records would, “encroach upon a specific public interest and privacy concern of the alleged victims of this fraudulent conduct.”

The Court dismissed the Crown’s application, questioning whether a privilege or privacy claim could apply to information known by the accused and records created by the accused. It said:

In my view, s. 37 of the Evidence Act does not apply to the facts of this case. The seized notes and records belong to the respondent and should be returned to him. I agree with Mr. Chambers’ submission that s. 37 is intended to apply where an accused seeks disclosure of of records or information generated by the state and its agents or through the interaction between complainants and third parties, which have never been in the accused possession.

R v Kent, [2013] O.J. No. 1037 (SCJ) (QL).

ABCA stands up for settlement privilege

On January 21st, the Court of Appeal of Alberta refused to make an exception to settlement privilege to allow a party to answer a limitation period defence. In seeming to answer the deciding master’s comment that settlement privilege is not as “robust” a form of privilege as others, the Court said, “for the rule to operate properly, not only must the ambit of the settlement privilege be broad, but the exceptions to the exclusionary rule must be narrowly construed and only be given effect where another policy objective can be shown to outweigh any impact that may arise to the settlement objective.” It held that settlement privilege should not normally give way to allow a party to answer a limitations defence and held there was nothing about the circumstances to justify making an exception.

Bellatrix Exploration Ltd v Penn West Petroleum Ltd, 2013 ABCA 10 (CanLII).

Docs obtained under access legislation producible in litigation despite any government interest

On January 10th, the New Brunswick Court of Appeal held that various RCMP records obtained by a plaintiff under access legislation and listed in her Schedule B were producible notwithstanding her privilege claim.

The Court, in essence, rejected the plaintiff’s suggestion that the RCMP had a continuing interest in the plaintiff’s use of the documents. It held that the Wagg screening process for dealing with production and use of Crown brief materials did not apply because the plaintiff did not obtain the records from the Crown pursuant to the Stinchcombe duty. Similarly, it held the documents could not be subject to public interest privilege given they had been produced by the RCMP pursuant to an access reqeust. The Court commented:

Ms. Bennett’s claim that “[f]rom a public policy perspective a person should be able to access their personal information which is held by any government department including the RCMP without fear that once they access that information it could be subject to production to a stranger by virtue of litigation” is irreconcilable with the disclosure obligations of a party who launches a civil action where the documents are relevant to the subject-matter of the claim.

The Court also held the records were not subject to litigation privilege, though obtained by the plaintiff’s counsel after the start of litigation.

Bennett v State Farm Fire and Casualty Company, 2013 NBCA 4 (CanLII).

Lawyer’s notes of opposing party’s statements to be produced

On October 30th the Ontario Superior Court of Justice issued a decision that illustrates the burden on a party who claims that notes taken of an opposing party’s statements are subject to litigation privilege.

The Court rejected a litigation privilege claim because it was impossible to discern from a review of the notes alone that they contained solicitor’s work product – i.e., confidential comments, remarks and notes personal to the transcriber and made for the dominant purpose of preparing for litigation. Although the notes contained some annotations and underlining, the Court held that it was not self evident these markings were work product. It also held that counsel’s submission that certain text in the notes represented an evaluation of the opposing party’s value as a witness was not sufficiently persuasive to justify a withholding of otherwise producible information.

Hart v (Canada) Attorney General, 2012 ONSC 6067 (CanLII).

OCA denies access to identity of person paying bankrupt’s legal fees

On November 29th, the Court of Appeal for Ontario held that the identity of a person paying the legal fees of a bankrupt person was protected by solicitor-client privilege.

The Court stated the applicable law as follows:

From these developments in the jurisprudence I take the law to be that administrative information relating to the solicitor-client relationship – including the identity of the person paying the lawyer’s bills – is presumptively privileged. The presumption may be rebutted by evidence showing: (a) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications (Maranda, at para. 34 and Ontario (Assistant Information and Privacy Commissioner), at para. 9); or (b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client (Cunningham, at paras. 30-31).

The Court applied this in dealing with a trustees’s pursuit of assets from a person it alleged to be holding assets for the bankrupt. The bankrupt had lost a motion in the matter and was ordered to pay a large costs award which, unpaid, led the trustee to move to discover the identity of the person paying the bankrupt’s fees.

The Court held that the trustee could not rebut solicitor-client privilege because the identity of the payor was relevant to the trustees’s broader allegation if not the motion that had led to the costs order. Much more broadly, it also held that disclosing the identity of the payor would reveal a confidential communication between the bankrupt and his counsel about how the bankrupt would pay his fees – a communication necessary to the bankrupt’s process of obtaining legal advice.

Kaiser (Re), 2012 ONCA 838 (CanLII).

Errant e-mail communication to plaintiff results in waiver of privilege

On November 13th, the Ontario Superior Court of Justice dismissed an application for leave to appeal a privilege waiver finding that was based on the unfairness that sustaining the privilege would work on the plaintiff.

The plaintiff sued for constructive dismissal after being inadvertently copied on an e-mail from her employer to its legal counsel. The e-mail was sent for the purpose of seeking legal advice on the plaintiff’s termination. The employer was unsuccessful in recovering the e-mail despite its attempts.

Waiver ordinarily requires proof of intent to waive. However, Justice Bielby held that sustaining the employer’s privilege in the unique circumstances would be unfair to the plaintiff because its inadvertent communication was the foundation of her claim:

There is no doubt that the email affected the plaintiff’s state of mind. It was the catalyst for the subsequent steps taken by the plaintiff and the position underlying her claim of wrongful dismissal. She copied the email and contacted counsel to whom she disclosed the email. She presumably and with legal advice, considered her continued employment and took the position, rightly or wrongly, that the email effectively terminated her employment.

Of course, this is no endorsement of the plaintiff’s seemingly questionable theory.

Fernandes v Marketforce Communications, 2012 ONSC 6392 (CanLII).