SCC Comments on Requirements for an Anton Piller

The Supreme Court of Canada issued a decision yesterday in which it affirmed an Anton Piller order issued in support of the province of British Columbia’s action for recovery of monies from Ripudaman Singh Malik and family.

The judgement is about the admissibility of prior judgements as evidence in a subsequent interlocutory proceedings. Justice Binnie, for the Court, held that prior judgements are generally admissible as evidence as proof of their findings provided the parties are the same or were themselves participants in the prior proceedings on similar or related (as opposed to identical) issues.

The Supreme Court of Canada decision in Celanese remains the leading case on the requirements for an Anton Piller order, though Justice Binnie did comment on requirement that there be a “real possibility” that the defendant may destroy evidence. He said:

It will often be difficult or perhaps impossible for a plaintiff to show that a defendant will actually destroy evidence, but it is always open to the court to draw inferences reasonably compelled by the surrounding circumstances. As Paperny J. (as she then was) observed in Capitanescu v. Universal Weld Overlays Inc. (1996), 46 Alta. L.R. (3d) 203:

Generally, courts have inferred a risk of destruction when it is shown that the defendant has been acting dishonestly, for example where matter has been acquired in suspicious circumstances, or where the defendant has knowingly violated the applicant’s rights. [para. 22]

This passage was cited with approval by the Alberta Court of Appeal in Catalyst Partners Inc. v. Meridian Packaging Ltd., 2007 ABCA 201, 76 Alta. L.R. (4th) 264, at para. 13.

Justice Binnie held that the motions judge did not err in finding a “real possibility” from evidence that Mr. Malik had previously refused to provide proper disclosure of financial information.

British Columbia (Attorney General) v. Malik, 2011 SCC 18.

NBCA Takes Issue With Breadth and Basis for Non-Party Order, Questions Appropriateness of Non-Party’s Cooperation

On March 31st, the New Brunswick Court of Appeal issued a judgement in which it quashed an order requiring the RCMP to produce two investigation files. In doing so, made some significant comments about privacy protection and non-party production orders.

The plaintiff’s home burnt down. The RCMP investigated and did not lay charges. A month earlier, it had investigated a break and enter at the home.

The insurer denied the plaintiff’s insurance claim and defended her action on the basis of a policy exclusion that it alleged applied because the plaintiff left the house vacant for more than 30 days. It sought an order for production of the two entire RCMP investigation files, expressly including personal information protected by the federal Privacy Act. The insurer argued (without any supporting evidence to support an inference) that the files would likely contain information related to the vacancy issue. The RCMP consented and, remarkably, the Attorney-General drafted the terms of the order and wrote the court requesting that the insurer’s production motion be allowed.

The Court of Appeal quashed the order on a narrow point of law. It held that the RCMP is not a “person” that can be subject to a non-party order for production under the New Brunswick Rules of Court. Chief Justice Drapeau went on, however, to comment that the order was overbroad and granted without a proper basis. In doing so, he said:

the New Brunswick rules contemplate that non-party orders target specific materials because such orders are not meant to invite discovery
that non-party consent (though “significant”) does not relieve the requesting party from establishing the requirements for a non-party order

The Chief Justice also questioned whether the RCMP’s actions were proper though, given the Attorney-General was not before the Court, made clear that the Court was not passing judgement on “whether their involvement is faithful to the spirit, if not the letter, of the Privacy Act, including its stated purpose (s. 2) and its prohibition, except in defined circumstances, against disclosure of an individual’s personal information without his or her consent.”

Bennett v. State Farm Fire and Casualty, 2011 NBCA 27 (CanLII).

FCA Side-Steps Challenge to Admin Tribunal’s Power to Determine Privilege, Gives Guidance

On March 23rd, the Federal Court of Appeal outlined how administrative tribunals should deal with solicitor-client privilege claims.

The matter involved a disputed solicitor-client privilege claim brought before the Public Service Labour Relations Board. The Court held that the Board erred by ordering the Canada Revenue Agency to file an affidavit in support of its privilege claim based on an assumption that the withheld communications were relevant. This finding allowed the Court to avoid answering the CRA’s challenge to the PSLRB’s authority “to determine a claim for privilege.” The Court did comment, however:

Whether or not a tribunal has the legal authority to determine if documents are subject to solicitor-client privilege, it may conduct a preliminary screening, without inspecting them or issuing an order that would breach the privilege if validly claimed. A bare assertion of privilege should not be allowed to automatically derail the conduct of a proceeding if the tribunal has no authority to decide the validity of the claim, any more than a tribunal with authority to decide a privilege claim should inspect the document the moment a party challenges the validity of the claim.

If a tribunal is not satisfied on the basis of the information available to it that the documents
in question are capable of being the subject of a valid claim for solicitor-client privilege, it can admit them or order their production. If the tribunal is not satisfied that the documents may be relevant to issues in dispute before it, it will exclude them or not order their production on this ground. In either case, the tribunal’s rulings would be subject to appeal or judicial review.

Canada (Attorney General) v. Quadrini, 2011 FCA 115 (CanLII).

Express Confidentiality Order Okay Protection for Customer Personal Information

On March 11th, the British Columbia Supreme Court ordered two directors of a plaintiff corporation to sign a confidentiality agreement as a means of protecting customer information. The defendant had proposed a more costly masking procedure.

The dispute was about an online retail business. The plaintiff claimed damages for failure to account for profits and for the return of two customer databases. The databases themselves were themselves relevant to either one or both claims. The defendant, in custody of the databases, proposed a masking procedure to be paid for by the plaintiff to protect against the disclosure of customer personal information, including customer addresses, e-mail addresses and credit card numbers.

Armstrong J. held that privacy concerns of non-parties should be addressed in determining the scope of documentary discovery, but stressed the court’s discretion and the presumed efficacy of the implied undertaking. In the circumstances, he held that a masking order was not warranted.

Animal Welfare International Inc. v. WS International Media Ltd., 2011 BCSC 299.

IMAPS 2011 – The Sedona Canada Panel on Privacy and E-Discovery

Alex Cameron and I presented on e-discovery and privacy today at “IMAPS 2011” on behalf of the Sedona Canada working group. The Information Management Access Privacy Symposium is a fantastic annual event hosted by the Office of the Chief Information and Privacy Officer of Ontario. It was an honor to present.

Alex and I were one talking head short of an honest “panel,” but nonetheless had some good back-and-forth in delivering a presentation that is meant to provide a general overview of the privacy and e-discovery topic, with a focus on law and practice applicable to the Ontario public sector. Slides below.

Party complains about receiving confidential information of non-parties. What next?

On January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.

Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties?(2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v Collins Barrow Toronto LLP, 2010 ONSC 598.

Party complains about receiving confidential information of non-parties. What next?

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties? (2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v. Collins Barrow Toronto LLP, 2011 ONSC 441 (CanLII).

Judge distinguishes between true whistleblowers and partisan pretenders in ordering disclosure of confidential source

We’ve published here before about former Minister of Parliament Blair Wilson’s defamation lawsuit, part of which rests on an allegation that former British Columbia politician Judi Tyabji distributed an anonymous and defamatory letter.

On December 31st, Mr. Justice Williamson of the British Columbia Supreme Court ordered Elaine O’Connor, a reporter to whom the letter was provided under a condition of confidence, to disclose her source. His decision turns heavily on the characterization of the relationship between the confidential source alleged to be Tyabji and O’Connor. His Honour says:

I am satisfied that if the source is an arm’s length person disclosing information to a member of the media out a sense of civic responsibility grounded in a desire to foster accountability and responsibility in Members of Parliament, the public interest in protecting the identity of such a source outweighs the public interest in ensuring the proper administration of justice. But I also am satisfied that if the source is a participant in a scheme to favour the interests of one side in an acrimonious family dispute, or is a participant in a politically motivated scheme to defame and discredit an elected politician, then the public interest in fostering the proper administration of justice outweighs the public interest in protecting a journalist’s anonymous source.

Mr. Justice Williamson said that he was unable to find which of the two categories into which the anonymous source alleged to be Tyabji fell, and therefore held that O’Connor had failed to meet her burden of establishing the privilege she claimed.

This puts journalists in a particular dilemma given the evidence available to prove a source’s motive will always be limited if anonymity is to be maintained. The Globe and others report that the decision will be appealed. It seems like one that may have some legs.

Lougheed v. Wilson, 2010 BCSC 1871.