Archive | Law of Production (Not E-Discovery) RSS feed for this section

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).

SCC issues civil production decision stressing discretion and proportionality

17 Oct

Today, a majority of the Supreme Court of Canada affirmed an order that directed the Competition Bureau and the federal Department of Public Prosecutions to produce, for civil discovery purposes, recordings of more than 220,000 private communications that they had obtained pursuant to Criminal Code wiretap authorizations.

Justices LeBel and Wagner wrote a majority judgement with which Chief Justice McLachlin (for the most part) concurred. The majority held that the production order was neither prohibited by the Criminal Code nor the Competition Act and was a proper exercise of discretion.

The discretion to order non-party production, according to the majority, is “great” (para 28), though should be exercised with a view to fulsome disclosure: “relevance is generally interpreted broadly at the exploratory stage of the proceedings” (para 30). Relevant records may be withheld to achieve proportionality and efficiency, but they may not be “unduly” withheld (para 60). In making a non-party production order a judge must consider the “financial and administrative burden” of the order and the impact on non-party privacy (paras 83 and 85).

The majority’s emphasis on balance and proportionality is heavy. It weaves proportionality into the concept of relevance as the concept applies in respect of civil production:

[30] To be relevant, the requested document must relate to the issues between the parties, be useful and be likely to contribute to resolving the issues (Glegg, at para. 23; Arkwright, at p. 2741; Chubb, at p. 762; Westfalia Surge Canada Co.; Autorité des marchés financiers; Fédération des infirmières et infirmiers du Québec).

[31] This relevance requirement ensures that the parties do not conduct “fishing expeditions”. It also ensures that the conduct of the proceedings is not delayed, complicated or even jeopardized by the introduction of evidence that does not assist in establishing the rights being claimed (see Royer and Lavallée, at p. 487; Marseille, at pp. 1 and 21). In this sense, the relevance rule is a procedural balancing rule that ensures the efficiency of the judicial process while facilitating the search for truth.

The majority refers to the 2005 decision in Glegg v Smith & Nephew Inc in which the Supreme Court of Canada espoused similar principles in respect of the production obligations of a party to an action. All the authorities the majority relies on are Quebec authorities, but the majority does not expressly rely on any provision of the Civil Code of Quebec and the principles it applies are broadly applicable.

Justice Abella, in dissent, argued that private communications intercepted by law enforcement are of utmost sensitivity and should be “protected by an almost impermeable legal coating like a privileged communication.” To achieve this purpose, she would have interpreted the Criminal Code to prohibit the production of intercepted private communications in a civil proceeding.

Imperial Oil v Jacques, 2014 SCC 66.

Raw test data disclosed over doc’s objection

18 Aug

On July 29th, the Supreme Court of British Columbia ordered raw test data to be produced over the objection of plaintiff’s (neuropsychologist) expert, who claimed her professional obligations restricted her from disclosing the data forming the foundation of her expert’s report to anyone but another neuropsychologist. It said:

Counsel for the applicant defendant correctly submits that there is nothing in the Code of Conduct to substantiate the apparent position of the College of Psychologists of BC that test material cannot be released except to another psychologist or psychological service provider in another jurisdiction. He is correct. That is not what the Code of Conduct states.

The Court noted that not all experts are equal in interpreting data, but held that the quality of interpretation is a matter for trial.

Smith v Rautenberg, 2013 BCSC 1347 (CanLII).

Breach of deemed undertaking does not fit within crime and fraud exception to s-c privilege

20 Jul

On July 16th Justice D. M. Brown of the Ontario Superior Court of Justice dismissed a motion to compel answers to three cross examination questions that were refused based on a solicitor-client privilege claim. He dismissed an argument that the evidence sought was a communication between lawyer and client in furtherance of crime or fraud because the communication was for the purpose of breaching the deemed undertaking rule. Justice Brown said:

The deemed undertaking rule is a most important one in the civil litigation process balancing, as it does, the public interest in getting at the truth in a civil action with the privacy interest of the person subject to examination for discovery and the compelled production of documents. Its importance is underlined by the fact that the undertaking is one given to the court. But the breach of the deemed undertaking does not attract any penal sanction. Although Rule 30.1 does not specify the sanctions for its breach, case law exists in which courts have stayed subsequent proceedings which used evidence in breach of the deemed undertaking rule, and other remedies may include striking pleadings or bringing a civil contempt motion.

That is to say, a breach of the deemed undertaking rule does not give rise to a cause of action against the party in breach, but the aggrieved party may seek a process-related remedy before the court in an existing action, such as the present one.
In my view, the nature of the conduct involved in any alleged breach of the deemed undertaking rule does not come anywhere close to that narrow cohort of “future crime and fraud” misconduct in respect of which communications between a client and its lawyer would not enjoy the protection of solicitor-client privilege

Brome Financial Corporation v Bank of Montreal, 2013 ONSC 4816 (CanLII).

BCCA denies access to patient information to further class proceeding

28 May

Yesterday, the Court of Appeal for British Columbia vacated an order that required non-party physicians to provide a class action plaintiff with the contact information of patients who were potential class members. It rendered a principled judgement on physician-patient confidentiality, stating:

Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship.

The Court distinguished other orders in which contact information was provided to class action plaintiffs as not involving physician-patient confidentiality.

Logan v Hong, 2013 BCCA 249.