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NLCA holds that implied undertaking does not apply to medical report

28 Dec

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).

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

22 Dec

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).

BCCA discusses redaction of information from otherwise relevant documents

18 Dec

On December 12th, the British Columbia Court of Appeal adopted the following statement from North American Trust Co. v. Mercer International Inc. (1999) 1999 CanLII 4550 (BC SC), 71 B.C.L.R. (3d) 72 (S.C.) on the redaction of irrelevant or sensitive information from otherwise relevant documents:

Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of the document is producible if a part of it relates to a matter in question. But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues.

This same statement has been adopted as reflective of Ontario law by the Ontario Superior Court of Justice: see McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII).

Este v. Blackburn, 2016 BCCA 496 (CanLII).

 

SCC says PIPEDA does not constrain a court’s procedural power

19 Nov

The Supreme Court of Canada decided the case of RBC v Trang this week. It held that the Personal Information Protection and Electronic Documents Act does not limit the procedural powers of a court. If a court, based on analysis that is not at all governed by PIPEDA, decides that an order to disclose personal information is warranted, it may issue the order. The order may be complied with notwithstanding PIPEDA.

Here is the ratio in Trang:

As a result of s. 7(3) , PIPEDA does not diminish the powers courts have to make orders, and does not interfere with rules of court relating to the production of records. In addition, PIPEDA does not interfere with disclosure that is for the purpose of collecting a debt owed by the individual to an organization, or disclosure that is required by law. In other words, the intention behind s. 7(3) is to ensure that legally required disclosures are not affected by PIPEDA.

All is right in the world again after the Ontario courts got quite twisted up on a very fundamental question about PIPEDA’s impact on the civil justice system.

The Court also held that debtors implicitly consent to the disclosure of mortgage status information (current balance) to judgement creditors who are seeking to recover a debt. This creates an opportunity for banks to assist judgement creditors without requiring them to obtain a court order. (Might the Court have had the burden of pro forma motions in mind?)

More generally, the Court supported a very flexible, fully-contextual implicit consent standard. This arguably erodes privacy protection and invites uncertainty, but also allows for just and sensible outcomes despite a consent rule in PIPEDA that is otherwise quite strict. Of course, this will feed the current dialogue about whether consent is a meaningful principle by which to govern the protection of personal privacy.

Royal Bank of Canada v. Trang, 2016 SCC 50 (CanLII).

Party can call evidence about contents of lost video

4 Mar

On January 22nd, Vice-Chair Harris of the (Ontario) Grievance Settlement Board held that an employer can call testimony from witnesses who had viewed a video tape before it was inadvertently destroyed. He held that exclusion was an inappropriate remedy for inadvertent spoliation given the employer’s case rested on the proposed evidence. He also held that the proposed evidence was not hearsay and was not excluded because the best evidence was unavailable.

The overwhelming strength of the authorities is that such secondary evidence is admissible when the trier of fact is satisfied that the original existed, has been lost or destroyed and a proper explanation has been given of the absence of the better evidence. Here, that explanation has been given and accepted by the union.

Ontario Public Service Employees Union (Phagau) v Ontario (Liquor Control Board of Ontario), 2016 CanLII 7445 (ON GSB).

Request for jury contact information dismissed

1 Nov

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for third-party production of the names, telephone numbers and home addresses of 800 people summoned to jury duty. The plaintiff in a slip and fall claim wanted this information to contact potential witnesses, a plan that Mulligan J held the plaintiff did not establish was necessary. Notably, Mulligan J also reviewed various authorities about the role of a criminal jury and held that, in the context, the contact information at issue was “core biographical information.”

I’m most interested about the Court’s sensitivity to the privacy interest and procedural rights of the affected 800 individuals. It apparently adjourned the first day of the motion and ordered the plaintiffs to serve the IPC/Ontario. The IPC chose not to attend, perhaps because it viewed attendance as inconsistent with its mandate. The Court referenced a recent Alberta case in which the Court of Queen’s Bench of Alberta appointed an amicus and directed it to give notice to a group of jury members (and not a large jury pool) whose privacy interests were at stake in light of a similar production request. I’ll be addressing the procedural dilemma posed in similar circumstances at the Canadian Institute’s upcoming “Advanced Administrative Law and Practice” conference. I’ve clipped the program below.

Champagne v Corporation of the City of Barrie, 2014 ONSC 6103 (CanLII).

 

NSCA grants protective order, clarifies public interest test

29 Oct

Yesterday the Nova Scotia Court of Appeal granted an order prohibiting the public disclosure of confidential business information belonging to the defendants in an action. It held that the motions judge erred by ruling out the order because the moving parties had a commercial interest in keeping the the relevant information secret. A concurrent public interest, according to the Court, will suffice:

That D+H and Resolve have a specific private interest does not exclude the existence of a concurrent public interest. The two are not mutually exclusive. In Sierra Club, Justice Iacobucci said (para 55) “the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality” [emphasis added]. The question is whether D+H/Resolve’s clear private interest also can be expressed in terms of a public interest in confidentiality.

Here, the Court recognized the public interest in the integrity of a government tendering process and, after weighing competing interests as called for by the Sierra Club case, granted the order.

Resolve Business Outsourcing Income Fund v. Canadian Financial Wellness Group Inc., 2014 NSCA 98 (CanLII).