BCSC dismisses privacy claim against lawyer

On July 26th, the Supreme Court of British Columbia dismissed a claim against a lawyer based in part on his service of application materials and based in part his conveyance of information about the plaintiff in a casual conversation with another lawyer.

The application that became the subject of the claim was made in an earlier family law proceeding. It was for production of financial documentation from the plaintiff relating to seven companies in which he had an interest.

The defendant represented the plaintiff’s wife. He served the companies with application materials (a notice plus affidavit) without redaction and in an unsealed envelope. Apparently his process server left the materials with two unrelated companies in an attempt to affect service.

The Court dismissed this claim because the lawyer was at all times acting as counsel in furtherance of his client’s interest and was protected by absolute privilege. Justice Griffin commented favorably on the lawyer’s conduct in any event, declining to give effect to the plaintiff’s argument about the need for redaction and sealed envelopes and giving wide berth to counsel’s judgement. She said:

As a matter of ethics, professionalism and good practice generally, I do agree that lawyers should consider the privacy of litigants and not unnecessarily reveal the private information of the opposite party nor should they seek to embarrass the opposite party… But that does not mean that an action lies for a lawyer’s steps in the conduct of litigation if the opposite party does not like how the lawyer exercised his or her judgment in bringing and serving applications which disclose private information.

The “casual conversation claim” arose from a discussion the lawyer had with another lawyer during a break in discovery in another case. The lawyer said he represented a woman whose former husband had sold a business in Alberta for $15 million and that the couple had three young children. Another person who was present came to believe the lawyer was speaking about the plaintiff.

The Court dismissed the claim because the plaintiff had not proven the fact of the $15 million sale was private. More notable is Justice Wilson’s obiter finding that the lawyer’s disclosure was not “wilful” because he could not reasonably have expected the plaintiff to be identified. She said:

I have found the question of whether Mr. Lessing was wilful in violating Mr. Duncan’s privacy to be a difficult one. On balance, however, because the information he stated was very innocuous; he did not reveal names of the persons or the companies; and there is no evidence that he ought to have known someone in the room would know Mr. Duncan, I find that it cannot be said that he “knew or should have known” that what he said would breach Mr. Duncan’s privacy. I therefore find that if Mr. Lessing did breach Mr. Duncan’s privacy it was not a wilful violation of privacy within the meaning of the Privacy Act.

Duncan v Lessing, 2016 BCSC 1386 (CanLII).

Some relevant comments on e-discovery in recent Ontario order

Master Callum McLeod – long time member of the Sedona Canada Working Group – was recently appointed a judge of the Ontario Superior Court of Justice. On June 6th, still sitting as master, he issued an order that addressed a number of e-discovery issues. Here are some snipets of Master McLeod’s views.

…on the utility of manually producing a Schedule A

This is not a new problem. But it is a problem that is greatly compounded when dealing with any significant amount of electronically stored information. In such cases, listing and describing all relevant documents is virtually impossible and threatens to become a hugely expensive make work project of little practical utility. What is required instead is to unearth the important and probative documents that will be necessary to prove or disprove facts that are in issue.

Under the Sedona Canada Principles incorporated into the rules, counsel are to actively co-operate in formulating a practical discovery plan. Counsel are required to seek agreement on the subset of potentially important relevant information and how it is to be located, preserved, exchanged, organized, described and retrieved. Some form of mutually acceptable electronic indexing that permits rapid identification and retrieval of each document should be adopted for purposes of production, discovery and trial. It is for this reason that the parties are now expected to engage in a collaborative discovery planning exercise in which they are to robustly apply the principle of proportionality.

Of course production through affidavit of documents process is not the end of the story. There are at least four other ways to extract documents from the other party. The first is a demand to inspect documents under Rule 30.04, the second is by listing documents in the Notice of Examination, the third is by cross examination on the affidavit of documents as part of the discovery process and the fourth is by obtaining disclosure and undertakings through the discovery process itself.

… on the use of shared document repositories

In the case at bar, the record is replete with technical production problems and unilateral attempts to satisfy production obligations. Malfunctioning USB keys, courier delivery of hard copies, delivery of copies on DVDs and refusal to make use of web based technology such as Google Docs are some examples. While there are many issues with cloud based storage of sensitive documents almost all of these can be overcome. The advantages and speed of a secure web based document vault utilizing standardized document formats and software should be readily apparent. Correctly utilized, such tools can eliminate production delays and arguments about who produced what and when.

… on providing access to cloud-based evidence as an alternative to production

As I understand it, the defendant is not taking the position that the logs are not relevant, they are simply inviting the plaintiffs to access the information themselves. They have not listed the Google logs in the affidavit of documents. As I indicated earlier, there is much to be said for web based production and the use of document vaults. This is not the same thing as inviting the other party to access the originals of the web site and to extract their own information without concern for forensic continuity or admissibility of the evidence. Counsel should not be put in the position of becoming a witness as to the provenance of documents.

For more, see:

Thompson v Arcadia Labs Inc, 2016 ONSC 3745 (CanLII).

Party defending against claim based on prior settlement does not waive settlement privilege

On September 30th, the Divisional Court held that a party defending against claim based on prior settlement does not waive settlement privilege. The Court reasoned as follows:

Consistent with such notions of fairness, we are satisfied that the LCBO has not waived settlement privilege in this case. The LCBO claims that Magnotta’s current actions advance the same claims as the prior settled proceedings, and we express no view on that assertion. However, the LCBO should, as a matter of fairness, be able to raise the settlement in its defence and in support of its proposed motion, without automatically losing the benefit of settlement privilege. In particular, the LCBO should be able to rely on the Minutes of Settlement for this purpose.

The defendant obtained a sealing order based on the public interest in encouraging parties to settle their disputes.

Magnotta Winery Corp v Ontario (Alcohol and Gaming Commission), 2015 ONSC 6234 (CanLII).

Newfoundland privacy breach class action moves forward

On November 14th the Supreme Court of Newfoundland and Labrador Trial Division held that the pleadings in a privacy breach class action disclose a reasonable cause of action.

Even for an application of the Hunt v Carey standard, the Court did not probe at the pleadings with any significant force. It:

  • held that an alleged failure to establish safeguards was enough to found a “willful violation” claim;
  • held that a question about whether Newfoundland’s statutory privacy tort could operate together with the common law vicarious liability doctrine should be determined at trial;
  • held that the availability of the common law intrusion upon seclusion tort in Newfoundland should be determined at trial;
  • allowed a negligence claim for distress and humiliation to proceed even though no specific psychiatric illness or prolonged psychological injury was pleaded because “the threshold of compensable harm will depend on the evidence at trial”; and
  • held that the availability of contract claim for non-economic loss should be determined at trial.

The Court struck claims for breach of statute, breach of the Charter and breach of fiduciary duty. The Court remains seized of the certification application.

Hynes v Western Regional Integrated Health Authority, 2014 CanLII 67125 (NL SCTD).

Addressing the privacy interests of affected individuals

I presented today at the Canadian Institute’s program on advanced administrative law. My topic was about how to deal with the privacy interests of affected non-parties. Here are my slides, revised based on my evolving understanding of this (difficult) issue. My thesis as it stands: we need to develop a principled exception to the audi alteram partem rule that governs when affected non-parties get notice and right to be heard. Courts and admin law decision makers appear to be attracted to solution that rests on the involvement of an appropriate representative party, but the current solutions are not driven by any express principle.

Request for jury contact information dismissed

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).

 

SCC issues civil production decision stressing discretion and proportionality

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.

NSCA addresses relevance, prorportionality and privacy in the ordering of forensic hard drive reviews

On January 28th, the Nova Scotia Court of Appeal affirmed an order that required a plaintiff to produce a hard drive for forensic review because it contained data relevant to his lost income claim (i.e., the amount of time he spent working at a home office each day).

The Court held that the data was relevant and therefore producible subject to rebuttal by the plaintiff. It set out the following list of factors for Nova Scotia judges to consider in deciding whether or not to grant production in similar cases:

1. Connection: What is the nature of the claim and how do the issues and circumstances relate to the information sought to be produced?

2. Proximity: How close is the connection between the sought-after information, and the matters that are in dispute? Demonstrating that there is a close connection would weigh in favour of its compelled disclosure; whereas a distant connection would weigh against its forced production;

3. Discoverability: What are the prospects that the sought-after information will be discoverable in the ordered search? A reasonable prospect or chance that it can be discovered will weigh in favour of its compelled disclosure.

4. Reliability: What are the prospects that if the sought-after information is discovered, the data will be reliable (for example, has not been adulterated by other unidentified non-party users)?

5. Proportionality: Will the anticipated time and expense required to discover the sought-after information be reasonable having regard to the importance of the sought-after information to the issues in dispute?

6. Alternative Measures: Are there other, less intrusive means available to the applicant, to obtain the sought-after information?

7. Privacy: What safeguards have been put in place to ensure that the legitimate privacy interests of anyone affected by the sought-after order will be protected?

8. Balancing: What is the result when one weighs the privacy interests of the individual; the public interest in the search for truth; fairness to the litigants who have engaged the court’s process; and the court’s responsibility to ensure effective management of time and resources?

9. Objectivity: Will the proposed analysis of the information be conducted by an independent and duly qualified third party expert?

10. Limits: What terms and conditions ought to be contained in the production order to achieve the object of the Rules which is to ensure the just, speedy and inexpensive determination of every proceeding?

The Court also suggested that, although “the semblance of relevance” test for production has been abolished under the Nova Scotia Rules, in gleaning what might ultimately be relevant at trial, “it is better to err on the side of requiring disclosure of material that, with the benefit of hindsight, is determined to be irrelevant rather than refusing disclosure of material that subsequently appears to have been relevant.”

Laushway v Messervey, 2014 NSCA 7 (CanLII)

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

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?

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.