BCCA discusses redaction of information from otherwise relevant documents

On December 12th, the British Columbia Court of Appeal adopted the following statement from North American Trust Co. v. Mercer International Inc. (1999) 1999 CanLII 4550 (BC SC), 71 B.C.L.R. (3d) 72 (S.C.) on the redaction of irrelevant or sensitive information from otherwise relevant documents:

Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of the document is producible if a part of it relates to a matter in question. But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues.

This same statement has been adopted as reflective of Ontario law by the Ontario Superior Court of Justice: see McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII).

Este v. Blackburn, 2016 BCCA 496 (CanLII).

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).

Arbitrator gives notice to affected individuals after ordering their PI to be produced

On July 14th, Arbitrator Kuttner ordered an employer (and MFIPPA institution) to disclose retiree contact information to a union and to deliver a notice to retirees about his production decision.

MFIPPA does not apply to employment-related records nor, in general, does it give employees and retirees of MFIPPA institutions privacy rights. Arbitrator Kuttner seemed to accept this in finding that MFIPPA did not preclude him from making the requested order, though he also made a finding that the requested disclosure was permissible under MFIPPA as a “consistent purpose.”

More significant is how Arbitrator Kuttner dismissed the employer’s argument that the procedural rights of affected retirees must be respected in determining the production motion. He said:

The situation before me is far removed from that dealt with by the [Court of Appeal for Ontario’s decision] in Re Bradley. There are not here two groups of employees covered by the same collective agreement competing for benefits under its terms, with one group stripped of benefits previously accorded in favour of another group to which they are newly afforded. Rather a bargaining agent, bound to represent fairly before an employer a discrete group of retired employees whose common interests under a collective agreement are in jeopardy, seeks disclosure of their personal contact information held by the employer, so that it can fulfill its representational role. As discussed above, that role is one with common law underpinnings, now rooted in the LRA, and recognized by the parties to the Collective Agreement. Of note in PIPSC v. Canada (Revenue Agency) supra, where employee privacy rights were at issue, is the Supreme Court’s comment that “the usual practice” is not to give affected employees notice of such proceedings, and the same would hold here in the case of retirees.

Arbitrator Kuttner nonetheless considered it “appropriate” to advise the retirees of his production decision and ordered the employer to deliver the letter I’ve attached below.

CUPE, Local 27 and The Greater Essex County District School Board (14 July 2014, Kuttner).

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)

BCCA denies access to patient information to further class proceeding

Yesterday, the Court of Appeal for British Columbia vacated an order that required non-party physicians to provide a class action plaintiff with the contact information of patients who were potential class members. It rendered a principled judgement on physician-patient confidentiality, stating:

Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship.

The Court distinguished other orders in which contact information was provided to class action plaintiffs as not involving physician-patient confidentiality.

Logan v Hong, 2013 BCCA 249.

Justice Perell Says Deemed Undertaking Normally Adequate, Tweaks it for Proceeding

On June 13th Justice Perell of the Ontario Superior Court of Justice issued an order that clarified the scope of the deemed undertaking and slightly modified it for a particular class proceeding. He also affirmed, however, that the undertaking is the normal source of privacy protection for parties to litigation in Ontario.

The class proceeding defendant argued that the deemed undertaking was inadequate for protecting its confidential business information. In particular, it argued that undertaking would not preclude the filing of production materials (on the public record) in interlocutory motions without notice and would not protect against misuse by experts and “third parties.” It proposed a confidentiality order that would restrict access to production materials to certain “permitted persons,” some of whom would be required to sign a confidentiality order.

Justice Perell rejected the defendant’s proposed confidentiality order as inconsistent with the basis for the deemed undertaking rule and too cumbersome. He said that the deemed undertaking will normally provide adequate protection and issued an order imposing a modified form of the rule. In response to the defendant’s particular concerns, Justice Perell ordered a provision for serving materials on an interlocutory motion 15 days before filing, a specification that the undertaking binds lawyers’ staff, experts and consultants and a specification that the undertaking prohibits the disclosure of information to class members unless in ordinary circumstances. Justice Perell also imposed a term requiring the parties to destroy production materials (without specification as to means) at the conclusion of the action.

Robinson v. Medtronic Inc., 2011 ONSC 3663.

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).

Investigating Computer Abuse – Help for Human Resources

My colleague Kathryn Bird and I presented today at the HRPA 2011 conference on “Investigating Computer System Abuse – Help for HR.” It was our aim to help human resources professionals charged with investigating computer-related misconduct to identify issues, ask proper questions of internal IT and know when to get professional IT forensics and legal help. We covered investigation basics, sources of digital evidence, preservation best practices, interview tips and managing the investigation record. Big thanks to Kevin Lo of Froese Forensics for reflecting on some of our ideas over beers. Slides are 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).