SKCA lays down law regarding redaction of producible documents, orders disclosure of complainant’s identity

On October 11th, the Court of Appeal for Saskatchewan ordered a defendant to produce an un-redacted copy of an e-mail, thereby providing the plaintiff with the identity of an individual who had reported him as a potential threat.

The Court reviewed the Canadian jurisprudence on redacting information from producible documents, and adopted a modified version of the prevailing view (outside of Alberta and Nova Scotia):

[55] In summary, a party seeking to justify a redaction from a producible document must show that: (a) the information removed from the document is not relevant to an issue in the action; (b) there is, in the evidence or record, a compelling reason for the redaction; and (c) the existing protections provided for in the Rules, and as may be supplemented by other measures, are insufficient to protect the interest that is said to justify the redaction.

The underlying action was brought by a former employee of SaskPower . SaskPower had received a bomb threat, and as part of its response, identified the plaintiff as a suspect to the local police. The plaintiff sued SaskPower for malicious prosecution and breach of privacy.

SaskPower produced the internal e-mail that identified the plaintiff as a threat, but redacted the name of an employee who had earlier raised concerns – “However [redacted text] came to me with concerns (even before we were aware other the threat came from someone with an accent).”

The Court dismissed the defendant’s argument that relied on informer privilege because SaskPower was not the police and held (in a rather cursory manner) that SaskPower had not met its burden.

The outcome is a good illustration of the test, which is a one-way test that puts the burden on the party resisting production. If the test put more emphasis on the value of the evidence to the proceeding (and balancing), there may have been a different outcome given the public interest in fostering the making of these types of reports.

SaskPower has nice, simple facts for an attempted appeal, the law of production has been in flux in the last decade, and the differing Alberta and Nova Scotia law might help.

Omorogbe v Saskatchewan Power Corporation, 2022 SKCA 116 (CanLII)

ABCA decision on defending allegations about privileged communication

On April 12th, the Court of Appeal of Alberta held that a defendant waived solicitor-client privilege by affirmatively pleading that its counsel had no instructions to agree to a time extension for filing a prospectus.

The defendant faced a lawsuit that alleged its counsel gave a time extension and had the actual authority to do so. The majority judges explained that a party faced with such an allegation about a privileged communication can make a bald denial and safely rest on its privilege. The defendant went further, thereby putting its privileged communications in issue.

PetroFrontier Corp v Macquarie Capital Markets Canada Ltd, 2022 ABCA 136 (CanLII).

Federal Court of Appeal – litigation database privileged, no production based on balancing

On October 20th, the Federal Court of Appeal set aside an order that required the federal Crown to disclose the field names it had used in its litigation database along with the rules used to populate the fields. It held the order infringed the Crown’s litigation privilege.

The case management judge made the order in a residential schools abuse class action. The Crown had produced approximately 50,000 documents, with many more to come. The plaintiffs sought the fields and rules (and not the data in the fields) to facilitate their review. The case management judge, though acknowledging litigation privilege, judged the fields and rules as less revealing than the data in the fields and ordered production in the name of efficient procedure.

The Court of Appeal held that the case management judge erred because they “subordinated the Crown’s substantive right to litigation privilege to procedural rules and practice principles.” It also held, “a party attempting to defeat litigation privilege must identify an exception to litigation privilege and not simply urge the Court to engage in a balancing exercise on a case-by-case basis.”

Canada v. Tk’emlúps te Secwépemc First Nation, 2020 FCA 179 (CanLII).

FCA revives longstanding test for protective orders in IP disputes

On February 17th, the Federal Court of Appeal re-clarified that protective orders ought to be granted based on the test set out in AB Hassle – i.e., when “the moving party believes that its proprietary, commercial and scientific interests would be seriously harmed by producing information upon which those interests are based.” It held that the application of the more restrictive test for confidentiality orders set out in Sierra Club was not warranted.

Canadian National Railway Company v BNSF Railway Company, 2020 FCA 45 (CanLII).

NSCA issues principled judgement on relevance standard for production and proportionality

On February 28th, the Nova Scotia Court of Appeal held that a motor vehicle accident plaintiff was not entitled to production of her insurer’s policy documents merely because she had alleged bad faith. It held that these documents might be relevant, but the plaintiff failed to meet an evidentiary burden to establish relevance. Justice Farrar explained:

Although the pleadings are a factor to be taken into consideration in determining whether documents are relevant, they are not the only factor. If that were the case, adroit counsel could draft pleadings in such a manner to allow a party to embark on a fishing expedition. This is precisely what the Rules were intended to avoid when they were amended to move from the “semblance of relevance” test to relevancy. The motions judge’s decision, in my view, reverts to the “semblance of relevance” test. Allegations, no matter how specifically worded or drafted, which have no basis in the facts or the evidence without more, cannot be the basis for a production application. This is particularly true here, where there was a dearth of evidence before the motions judge.

Intact Insurance Company v. Malloy, 2020 NSCA 18 (CanLII).

FCA articulates standard for a counsel’s eyes only order

On October 22nd, the Federal Court of Appeal affirmed a counsel’s eyes only order, affirming that such orders are available in Federal Court (despite the impact on the solicitor-client relationship) when there is a “real and substantial risk that is grounded in the evidence.” It based its affirmation on the following analysis of the facts:

The judge noted that Mr. O’Hara was the sole employee of the appellant and the driving mind behind its product development and business decisions. The judge had a well-founded concern that it would be difficult, if not altogether artificial, to expect Mr. O’Hara to completely divorce his mind from that information. Given the small and highly competitive market in which the parties both operate, this would have obvious and significant consequences for the respondents.

Arkipelago Architecture Inc. v. Enghouse Systems Limited, 2018 FCA 192 (CanLII).

Surreptitious recording of IME warrants a re-do

On December 28th, Justice Sweeny ordered a plaintiff to submit to another medical examination because he surreptitiously recorded a prior examination, commenting:

The surreptitious recording of the examination was improper. The effect of this recording is the doctor would now, most likely, be subject to cross-examination on issues as to what exactly happened in the course of the examination. The evidence of the plaintiff is also relevant. Mr. Cruz may be examined or cross-examined on the transcript. If the doctor was aware of the recording, he may have conducted his examination a different way. He may have been clearer in the language used. He may have been more specific is instructions given to the plaintiff. Much of the communication that goes on is nonverbal. The doctor was denied an opportunity to ensure that his words and conduct were being accurately recorded.

Cruz and Cruz v. Saccucci, 2017 ONSC 7737.

Tribunal errs by ordering disclosure without redaction – right to redaction?

On November 28th the Nova Scotia Court of Appeal held that the Nova Scotia Workers’ Compensation Appeals Tribunal erred by ordering the disclosure of a worker’s entire file without redaction.

The matter was about a workplace safety insurance claim, and particularly whether a worker’s condition was caused by his work. The Tribunal made the order in response to an employer’s objection to various redactions made to a set of records in the possession of the Workers Compensation Board. Although the employer argued the redacted information was relevant, the Tribunal ordered the unredacted file to be produced because it lacked the resources to vet for relevance, because fairness and the “ebb and flow” of a hearing supported full disclosure and because of the difficulty in making relevance determinations.

Despite the obvious appearance of laziness, the Tribunal framed its decision as rooted in procedural fairness. In response, the Court said: “…there is no principle of procedural fairness… that a litigant who requests disclosure is entitled to see every document it requests, regardless of relevance and without a relevance ruling by an impartial arbiter.”

Implicit in this statement is a concern for the worker’s privacy interest. The Tribunal had recognized this interest in a policy manual that it disregarded in making its order, though there are aspects of the Court’s reasoning that suggest a more broadly based right to redaction.

The Court gave this guidance on how to vet for relevance:

The person who vets for relevance must keep in mind that material should be disclosed for its connection to the “proposition[s] being advanced” by the parties, to borrow Justice Rothstein’s phrase, and not merely to justify an anticipated conclusion on the merits of those propositions. The vetting official may not be able to foretell precisely how the evidence will be martialed. So the ambit of disclosure should allow the parties some elbow room to strategize for the engagement.

Baker v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2017 NSCA 83.

NLCA holds that implied undertaking does not apply to medical report

On December 21st the Newfoundland and Labrador Court of Appeal held that the implied undertaking does not apply to a medical report produced in a related personal injury action.

The plaintiff was injured in a motor vehicle accident and submitted to an examination in his action against the driver. That action settled, but the plaintiff continued a separate action against his own insurer for disability benefits, which prompted the insurer to seek the report. The Court commented:

In this case, it is difficult to see how the implied undertaking rule is engaged. A medical report, being factual in nature, would be neutral insofar as encouraging the provision of complete and candid discovery, one of the rationales for the rule. Further, the proposition stated by Binnie J. [in Juman v Doucette] that “whatever is disclosed in the discovery room stays in the discovery room” loses its impact and relevance when considered in the context of the factual nature of medical reports and the operation of rules 31 and 34.

The Court also held that the undertaking – implicit rather than express in Newfoundland – is “overridden” by the provisions of the Newfoundland Rules of the Supreme Court that favour production of medical reports.

Unifund Assurance Company v Churchill, 2016 NLCA 73 (CanLII).

Arbitrator says reference to record in opening statement does not extinguish implied undertaking

On September 9th, a British Columbia arbitrator held that a Union’s reference to a “secret recording” in an opening statement did not bring the implied undertaking to an end. The employer, he therefore concluded, breached the undertaking by attempting to investigate the making of the recording after the Union made its opening statement and before the recording was adduced in evidence. The arbitrator referred to the leading cases, which establish that the undertaking comes to an end when records are adduced in evidence. He also held that, in arbitration (which lacks pleadings), it is good policy to sustain the undertaking beyond opening statements because doing so encourages parties to make fulsome opening statements.

Fortis BC Energy Inc and IBEW, Local 213 (9 September 2016, Peckles).