On November 27th, Justice Carole Brown of the Ontario Superior Court of Justice dismissed a intrusion upon seclusion and negligence claim brought against lawyers who had acted in the defence of a personal injury claim. The claim alleged the lawyers acted unlawfully by:
- providing the plaintiff’s medical information to and requesting addendum reports from defence medical exports for the purposes of trial and discussing the contents of the reports at trial;
- serving copies of a Rule 30:10 (third-party production) motion; and
- obtaining the plaintiff’s university transcript for purposes of trial.
This is not surprising, though the university transcript was apparently obtained in advance of trial after service of a summons to witness. Justice Brown noted that the defendants did not deceive the summonsed witness and that, in any event, the plaintiff herself adduced the transcript at trial.
Baines v Sigurdson Courtlander, 2013 ONSC 6892 (CanLII).
On February 8th, the Supreme Court of Nova Scotia ordered the forensic review of an injured plaintiff’s hard drive because it would likely contain evidence relevant to a claim that he could only work at a computer for two to three hours a day. Although the computer was used by others (perhaps through separate user profiles, though this is unclear on the record), the Court held that use by others went to the weight of the evidence, a matter to be assessed at trial. Notably, the order contemplates a search to be conducted by a third party under a protocol proposed by the defendant.
Hat tip to Barry Sookman.
Laushway v Messervey, 2013 NSSC 47 (CanLII).
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.
The Federal Court of Appeal issued an illustrative order on January 6th in which it rejected a consent motion to seal documents that included the appellant’s SIN number. Instead, it ordered the respondent to redact and re-file. For some reason the Attorney-General filed the documents with SIN numbers for a second time on appeal after the appellant sought protection of the same information in the lower court hearing.
Grace Singer v. Canada (Attorney General), 2011 FCA 3 (CanLII).