On October 11th, the Court of Appeal for Saskatchewan ordered a defendant to produce an un-redacted copy of an e-mail, thereby providing the plaintiff with the identity of an individual who had reported him as a potential threat.
The Court reviewed the Canadian jurisprudence on redacting information from producible documents, and adopted a modified version of the prevailing view (outside of Alberta and Nova Scotia):
The underlying action was brought by a former employee of SaskPower . SaskPower had received a bomb threat, and as part of its response, identified the plaintiff as a suspect to the local police. The plaintiff sued SaskPower for malicious prosecution and breach of privacy.
SaskPower produced the internal e-mail that identified the plaintiff as a threat, but redacted the name of an employee who had earlier raised concerns – “However [redacted text] came to me with concerns (even before we were aware other the threat came from someone with an accent).”
The Court dismissed the defendant’s argument that relied on informer privilege because SaskPower was not the police and held (in a rather cursory manner) that SaskPower had not met its burden.
The outcome is a good illustration of the test, which is a one-way test that puts the burden on the party resisting production. If the test put more emphasis on the value of the evidence to the proceeding (and balancing), there may have been a different outcome given the public interest in fostering the making of these types of reports.
SaskPower has nice, simple facts for an attempted appeal, the law of production has been in flux in the last decade, and the differing Alberta and Nova Scotia law might help.