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Ontario master questions state of jurisprudence on OSR privilege

26 Apr

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).


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

8 Apr

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).

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

14 Jan

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).

Turn in the tide on Facebook photos as evidence?

13 Jan

I believe we’re seeing a slow retreat from the view expressed in Leduc v Roman, a 2009 Ontario case in which Justice Brown suggested photos on Facebook are presumptively relevant (in a non-production scenario) when a Facebooking plaintiff claims loss of enjoyment of life.

Stewart v Kempster is the new Ontario case that awkwardly distinguishes Leduc and is similar to Fric v Gershman from British Columbia. Both suggest that pictures of people who claim to have suffered a loss of enjoyment of life lounging around looking happy are generally not relevant (or have limited probative value), but pictures of skydiving, surfing and other action photos might be different.

Now, from British Columbia again, we have the following statement from Dakin v Roth, a January 8th British Columbia Supreme Court trial decision in which the plaintiff produced Facebook photos that the defendant adduced, perhaps without dispute. Justice Cole says:

The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.

I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v Narayan, 2012 BCSC 734 (CanLII), 2012 BCSC 734 (at para. 30) in respect to Facebook photos: “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.

Hat tip to Erik Magraken of the BC Injury Law and ICBC Claims Blog. Here is a link to an archive of Erik’s posts on Facebook photos in British Columbia personal injury cases.

No disclosure of information from Facebook in Ontario case

27 Dec

On December 21, the Ontario Superior Court of Justice dismissed a motion for production of all content on the private portion of a plaintiff’s Facebook account.

The plaintiff alleges she sustained permanent impairment as a result of motor vehicle accident that lessened her ability to participate in recreational, social, household and employment activities and caused a loss of enjoyment of life. The evidence on the defendant’s motion for production indicated the plaintiff had 139 Facebook friends and had made postings on her (publicly-available) timeline stating that she was feeling better and that “Life is good!” Notably, in response to the motion the plaintiff filed evidence that described the content of the private portion of her Facebook account, attached pictures (under seal) and reconciled the images in the pictures (of her standing, sitting and leaning) with her claim.

Regional Senior Justice Heeney held that the photographs he reviewed were not relevant:

I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff water skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations that she has testified she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.

Justice Heeney made clear that he was not endorsing the withholding of any otherwise producible information based on a privacy claim, though it is clear that he had particular concerns about the invasive nature of the defendant’s production request. In particular, Justice Heeney suggested that a production request for an individual’s entire Facebook account is highly problematic:

Before the dawn of the internet age, people often communicated by writing personal letters to each other. It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them. They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past. However, it is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff’s claim for non-pecuniary damages. The shocking intrusiveness of such a request is obvious. The defendants’ demand for disclosure of the entire contents of the plaintiff’s Facebook account is the digital equivalent of doing so.

Stewart v Kempster, 2012 ONSC 7236 (CanLII).

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

20 Dec

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).

SCC articulates rule on testimonial self-incrimination

9 Nov

On Wednesday a 6 – 3 majority of the Supreme Court of Canada held that section 13 of the Charter does not prevent a Crown prosecutor from using prior compelled testimony for impeachment purposes if the testimony does not prove or assist in proving one or more essential elements for which the witness is being tried.

The accused crashed a motorcycle. His passenger sued and the police laid dangerous driving and impaired driving charges. On discovery in the civil matter the accused said he had no memory of the events of the day. At his criminal trial the accused gave a detailed account of the events of the day. The Court granted the Crown leave to cross-examine the accused on his discovery testimony. The Crown successfully discredited the accused based on his conflicting testimony.

The majority, in a judgment written by Justice Moldaver, held that use of the discovery testimony for impeachment purposes did not breach the accused’s rights under section 13 because the discovery evidence was not “incriminating.”

Justice LeBel, for the minority, strongly criticized the majority for causing an unprincipled departure from the Court’s unanimous 2005 judgment in R v Henry. This departure, he argued, will invite uncertainty in criminal matters and discourage full and frank testimony. The latter issue was of interest to the Advocates’ Society, who argued in intervention that a bright-line rule is needed to protect the integrity of the civil discovery process.

R v Nedelcu, 2012 SCC 59 (CanLII).