Tag Archives: civil procedure

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.

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

4 Feb

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

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.

Existence of unfound docs no reason to allow a hard drive inspection (Ontario)

27 Dec

On December 19th, Justice Morgan of the Ontario Superior Court of Justice made the following statement of principle in dismissing a request to inspect a party’s hard drive that followed the party’s service of a supplementary affidavit of documents:

Plaintiff’s counsel submits that computers do not err, and the fact that a document was overlooked the first time implies that the search was unredeemably deficient. However, computer storage and search systems, like traditional filing systems, are subject to human error. The Defendant’s obligation is to make every effort to produce what the Rules require it to produce, but there must be evidence stronger than a corrected error for a court to order that the Plaintiff actually take control of the search through the Defendant’s computer hard drive.

Justice Morgan also dismissed a request for an order requiring the provision of information about how the party’s electronic search was conducted. He commented that the Rules “do not require a party to explain how or where the relevant documents were found or the methodology of its search for those documents.”

Zenex Enterprises v Pioneer Balloon, 2012 ONSC 7243 (CanLII).

Lawyer free to use documents received from client and produced to opposing party

29 Aug

Yesterday the Court of Appeal for Ontario held that the deemed undertaking rule does not apply to documents that a lawyer receives from a client for the purposes of documentary production. The Court held that such documents are not obtained by counsel under compulsion by the Rules and that the purpose of the deemed undertaking is only to protect against misuse of information received by a party to litigation.

In this case, a lawyer wanted to use documents he received from his former client in her matrimonial dispute to defend a defamation claim brought by the former client’s ex-spouse. The Court’s disposition allows him to do so, subject to the former client’s right to a return of her documents and the lawyer’s ability to obtain an order for third-party production.

Sobeski v Mamo, 2012 ONCA 560 (CanLII).

Nova Scotia court says parties should share search parameters

13 Aug

The Nova Scotia Supreme Court issued a notable e-discovery decision on August 2nd.

The Court dismissed a motion to compel further documentary production as premature because the discrepancy in production volume between the parties was insufficient proof that the party producing fewer documents had failed to meet its obligations. More importantly, however, the Court accepted the moving party’s argument that (in the absence of a discovery agreement) it was entitled to information about the other party’s search protocol before oral discovery. The Court described the argument as follows:

The basic position of the defendants is that the Civil Procedure Rules contemplate that the parties will make a good faith effort to try and agree on the criteria to be used in conducting searches for electronic information to be disclosed. In other words, each party should apply the same relevance analysis in reviewing their electronic records. Even in the absence of an agreement, the parties should be required to disclose the criteria which they used so that the other parties know the basis on which the affidavit of disclosure was prepared.

In many cases, discovery examinations include questions directed at identifying additional undisclosed documents to be produced. Counsel for the defendants does not believe that disclosure of the electronic search criteria should be left to the discovery process. He suggests that this would result in bifurcation with an initial discovery on the scope of disclosure followed by an adjournment todeal with newly identified records. It would then be necessary to have a second discovery on the substantive issues.

The Court also made some findings about the requirements for an “affidavit disclosing relevant electronic information” under the Nova Scotia Civil Procedure Rules.

Velsoft Training Materials Inc v Global Courseware Inc, 2012 NSSC 295 (CanLII).