The Supreme Court of Canada decided the case of RBC v Trang this week. It held that the Personal Information Protection and Electronic Documents Act does not limit the procedural powers of a court. If a court, based on analysis that is not at all governed by PIPEDA, decides that an order to disclose personal information is warranted, it may issue the order. The order may be complied with notwithstanding PIPEDA.
Here is the ratio in Trang:
As a result of s. 7(3) , PIPEDA does not diminish the powers courts have to make orders, and does not interfere with rules of court relating to the production of records. In addition, PIPEDA does not interfere with disclosure that is for the purpose of collecting a debt owed by the individual to an organization, or disclosure that is required by law. In other words, the intention behind s. 7(3) is to ensure that legally required disclosures are not affected by PIPEDA.
All is right in the world again after the Ontario courts got quite twisted up on a very fundamental question about PIPEDA’s impact on the civil justice system.
The Court also held that debtors implicitly consent to the disclosure of mortgage status information (current balance) to judgement creditors who are seeking to recover a debt. This creates an opportunity for banks to assist judgement creditors without requiring them to obtain a court order. (Might the Court have had the burden of pro forma motions in mind?)
More generally, the Court supported a very flexible, fully-contextual implicit consent standard. This arguably erodes privacy protection and invites uncertainty, but also allows for just and sensible outcomes despite a consent rule in PIPEDA that is otherwise quite strict. Of course, this will feed the current dialogue about whether consent is a meaningful principle by which to govern the protection of personal privacy.
Royal Bank of Canada v. Trang, 2016 SCC 50 (CanLII).
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).