All About Information

On December 2nd, the New Brunswick Court of Queen’s bench ordered a plaintiff in a disability insurance claim to obtain “a history of her computer account use” from her ISP and “request” that her ISP generate a record accounting for her FaceBook use. These orders are becoming very common, but I will make a few notes:

• The tactic of seeking information through the plaintiff but held by a third-party is unique. The order seems bound to lead to delay and frustration (see here for an example) but at least is backed by the plaintiff’s right of access to personal information in PIPEDA. Perhaps the defendant didn’t like its chances of obtaining an order for forensic inspection of a home computer.
• Ferguson J. does a nice review of the applicable principles, and reminds us that the Supreme Court of Canada has endorsed necessity as a principle for dealing with production disputes over highly sensitive information by including this quote from A.M. v. Ryan: “I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truly and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a license to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.”
• Ferguson J. does not, however, apply this filter in the circumstances, because he finds that the type of information subject to the order (mere usage data) is not part of the plaintiff’s “biographical core” of personal information. The biographical core concept, from the Supreme Court of Canada’s R. v. Plant decision, is a concept that restricts certain information from court protection.

Carter v. Connors, 2009 NBQB 317.

In April, the British Columbia Supreme Court ordered a hard drive to be produced to a neutral expert to identify and extract information about the amount of time the plaintiff spends on Facebook between eleven at night and five in the morning. It held that this information met the standard of relevance for production given the plaintiff had claimed that fatigue is preventing him from maintaining employment. It also characterized the scope of the defendant’s request as narrow and suggested the privacy interest of the plaintiff and other users of the (home) computer were resolved by engaging a neutral.

Yesterday, the British Columbia Court of Appeal dismissed a motion for leave to appeal. In doing so, Garson J. held that the appeal was not prima facie meritorious, but did note specific facts that indicated the order was not based on speculation.

Bishop v. Minichello, 2009 BCCA 555.

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for production of a personal computer and criticized the moving party for proceeding in the face of a sworn statement by the opposing party’s solicitor that indicated the computer was gone.

The computer once contained information relevant to a loss of income claim. The plaintiff discarded it because it had broke down sometime after she printed and produced invoices from her personal business and sometime before a mediation attempt, which occurred slightly less than a year later. In the interim, the defendant made and sustained a request for electronic copies of the invoices.

When the defendant moved for production, plaintiff’s counsel wrote and later swore that the computer had been discarded and consented to allow the defendant to plead spoliation. Defence counsel persisted and generated some damning evidence in cross-examining the plaintiff’s witnesses, including a statement by the IT professional who the plaintiff relied upon, who said that he never actually examined the plaintiff’s computer.

Though the defendant was clearly onto something, Master Brott was not impressed that the defendant persisted despite the plaintiff’s agreement to deal with a spoliation claim and, in particular, plaintiff counsel’s statement that the computer was gone:

The circumstances leading up to this motion are in my view, a clear example of a proceeding going astray – of not being able to see the forest through the trees. Lawyers take oaths which require them to act in a professional manner. Defence counsel urged me to ignore the evidence of solicitor Sacks because of the contradictions obtained from the plaintiff’s boyfriend and the IT specialist. I am not prepared to ignore the solicitor’s Affidavit, nor the correspondence and telephone information from plaintiff’s counsel to defence counsel advising that the computer is no longer available. Whether the computer was in fact given to the IT specialist or is corrupted or is still available cannot be established at this stage. But what is critical is that counsel has sworn that the computer is no longer available. That should be the end of it! The rest is for trial.

…

… once [the Defendants] received plaintiff’s counsel’s correspondence outlining the corruption of the computer and the further information that the whereabouts of the computer were unknown and unrecoverable, the over-zealous actions of the defendants all the while knowing that even if successful, any Order could not be effective, was inappropriate. The rules encourage parties to proceed in a fair and inexpensive fashion and to attempt to resolve their disputes.

Cerkownyk v. Ontario Place, 2009 CanLII 62065 (ON S.C.).

On October 9th, the British Columbia Court of Appeal held that the privilege in section 517(5) of the Canada Elections Act is not a bar to production.

The section deems the fact that a person entered into a compliance agreement and any statement in a compliance agreement that admits responsibility for a violation of the Act to be inadmissible as evidence. The Court held that the provision only deems evidence to be inadmissible and does not bar production. It also held that the information, in the circumstances, was not subject to litigation privilege.

Ontario courts have read the statutory privilege governing an Ontario Student Record similarly. See, for example, the McNeil case.

Lougheed Estate v. Wilson, 2009 BCCA 438.

On October 29th, Price J. of the Ontario Superior Court of justice denied a motion for an ex parte order for preservation of a plaintiff’s Facebook.

The motion was brought by a defendant to a personal injury claim. It brought its motion ex parte on the basis that the plaintiff would be likely to destroy evidence if notified. It therefore had to meet the three-part test from R.J.R.-MacDonald in order to receive interim relief pending a return to court to deal with the matter of production. The Defendant brought its motion on the strength of several photos it had obtained from non-password protected Facebook pages. These showed the plaintiff  after the date of the accident doing things that were arguably consistent with her claim for damages in respect of a significantly curtailed lifestyle – i.e. the pictures showed her sitting and reclining on a floor. Neither these photographs nor any other records from the plaintiff’s Facebook were disclosed in her Affidavit of Documents.

The Court held that the defendant had not adduced any evidence that allowed it to conclude that the plaintiff’s Facebook was likely to contain relevant information and that it would not infer from the nature of the Facebook service that the plaintiff’s Facebook was likely to contain such information. On the inference, Price J.’s decision ought to be viewed to be in conflict with the Court’s prior decisions in Leduc v. Roman and Wice v. Dominion General Insurance Company of Canada. Price J. says:

I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintff’s account in the present case do not appear, on their face, to be relevant.

Price J. did grant leave to cross-examine the plaintiff on her Affidavit of Documents. He forgave the defendant for not doing so at the plaintiff’s examination for discovery “because Facebook is a relatively recent phenomenon” but specified that the defendant would pay the costs of the examination should it prove fruitless.

Finally, in addressing the balance of convenience, Price J. made the following statement about the balance of convenience:

The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends.” She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.

The concept (reflected in this paragraph) that an expectation of privacy can be maintained despite a limited disclosure of information is supported by privacy advocates, but is not often accepted by courts.

Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (S.C.J.).

On September 19th, Dufour J. of the Saskatchewan Court of Queen’s Bench set aside an Anton Piller order because the plaintiffs had failed to prove a real possibility that the defendants would destroy the information subject to the order.

In making his finding, Dufour J. described the standard of proof for the “real possibility” branch of the Anton Piller test as follows (citations omitted):

As it would be rare that there would be direct evidence that a defendant is preparing to destroy relevant evidence, the fourth Celanese condition is usually addressed by the plaintiff adducing evidence of the defendant’s dishonest nature. Evidence that the defendants have engaged in questionable business practices in the past or that they are generally dishonest is not sufficient. The plaintiffs must prove that the defendants are the types of persons who would destroy evidence.

Important to this case is that the plaintiffs must satisfy the Court by adducing admissible evidence. Opinion, supposition or the plaintiffs’ “fear” that documents will be destroyed will not suffice.

Dufour J. also held that he would have set aside the order given the plaintiffs’ non-compliance with their duty of full and frank disclosure. He identified the following defects, among others:

• Filing evidence of mere belief that the key defendant was dishonest
• Exhibiting an agreement without drawing a material notation on the agreement to the judge’s attention
• Referring to two different business entities by a single acronym in a manner that favoured their position
• Citing the paragraphs in Celanese that explain that Anton Piller orders are becoming more commonplace without citing a paragraph in Celanese that explains that an Anton Piller is still an exceptional remedy
• Citing Celanese for the proposition that Anton Piller orders are becoming more commonplace without citing post-Celanese cases that demonstrate that an Anton Piller is still considered to be an exceptional remedy

There is no shortage of cases that highlight the very onerous burden on a party that moves for an Anton Piller, but Dufour J.’s warning is notable for its vigor.

Agracity Ltd. v. Skinner, 2009 SKQB 361 (CanLII).

On September 3rd, Strathy J. held that it was not improper for a wrongful dismissal plaintiff to conduct oral discovery of a former subordinate whose harassment complaint led to his termination.

The plaintiff sought to examine the complainant, and the employer moved for an order directing the examintion of the human resoruces manager who had conducted the harassment investigation instead.

Strathy J., hearing an appeal of a master’s order, dismissed the employer’s argument that the choice was improper because the complainant did not participate in the decision to terminate and had no knowledge of the corporate imperatives underlying the decision. Strathy J. held that the request was “rational” and made for a proper purpose and held that the plaintiff would be prejudiced by being deprived of an opportunity to examine the person whose evidence “goes to the heart of the case.” Strathy J. also noted that the plaintiff’s counsel had undertaken that the complainant need not prepare herself for examination on issues of which she had no personal knowledge, said he would be happy to receive undertakings on such issues and suggested that he would be willing to examine the complainant without the plaintiff present.

Ciardullo v. Premetalco Inc., 2009 CanLII 45445 (ON S.C.).

On September 9th, the Ontario Superior Court of Justice ordered Bell and Rogers to identify an individual who used a gmail account to communicate allegedly defamatory statements about York University and its president. The case is notable for two points. First, it contains a relatively detailed discussion of the balancing of interests factor and the privacy interests of the anonymous poster. Strathy J. considered that both Bell and Rogers had privacy policies and terms of service that lowered the individual’s expectation of privacy. Second, Strathy J. held that, in some circumstances, an individual whose identity may be disclosed should be given notice of the proceeding and an opportunity to participate. He did not elaborate, but held that York’s failure to give notice in this case did not tip the balance against making an order.

York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.).

On September 3rd, the Ontario Superior Court of Justice dismissed a motion to disqualify counsel who received allegedly privileged e-mails and used them to amend its pleadings. It held that the privilege holder had waived privilege either knowingly or through the reckless conduct of its counsel.

The privilege dispute arose in the context of a wrongful dismissal claim and a counter-claim brought against a departing plaintiff. The plaintiff had communicated with her legal counsel by e-mail on her former employer’s system. The employer’s American counsel retrieved the e-mails and turned them over to its Canadian counsel, who produced twelve suspect e-mails to the plaintiff in September 2007 along with 135 other documents. The next day, the employer’s counsel wrote a one page letter to the plaintiff’s counsel to deal with a number of production issues and expressly took the position that privilege in the e-mails had been waived.

The plaintiff objected to the production in May 2009. This was after its counsel had responded to all points in the one page letter except the privilege issue and had sought a further and better affidavit of documents. It was also after the defendant retained new counsel who assumed the plaintiff had accepted its privilege waiver position and sought to amend its pleadings to refer to the solicitor-client communications in November 2007.

On these facts, Master Glustein held that the plaintiff had waived privilege. He also held that he would not have otherwise disqualified the defendant’s newly-retained counsel, who he said was blameless in proceeding with its understanding that privilege had been waived. Master Glustein did not consider whether the plaintiff waived privilege in her communications by using her employer’s e-mail system, but did comment:

I also find no “blame” in CPL going through Eisses and Fava’s emails at the outset. Even if the Emails are privileged, CPL’s counsel (Miller and Blakes) believed that the Emails were not privileged because they were the employer’s documents, and that as such, Eisses waived privilege. In any event, CPL and Blakes did the right thing by immediately and explicitly advising Colson, at the outset of the production process, that CPL had produced solicitor-client communications on which CPL claimed Eisses waived privilege.

This obiter statement is of some interest given the frequency with which employers find themselves in custody of their former employees’ solicitor-client communications. The case is otherwise driven by its facts.

Eisses v. CPL Systems Canada Inc., 2009 CanLII 45440 (ON S.C.).

On August 21st, the Ontario Court of Appeal clarified the requirements for pre-action discovery and affirmed that an applicant for pre-action discovery must establish that the discovery sought is “necessary” to the process of obtaining justice for some wrongdoing.

Norwich Pharmacal orders, also called “equitable bills of discovery,” enable a person to conduct pre-action discovery against a third-party who is likely to have important information about a bona fide wrongdoing. The development of the Canadian standard for these and similar third-party orders is of high relevance today because they are a potential means of investigating and pursuing claims based on anonymous internet use.

The dispute in this case arose because the applicant had substantial evidence supporting actions for fraud against two known potential parties, all of which was submitted in support of its successful action for pre-action discovery of other persons. On appeal, the strongest position against the order taken by one of the respondents was that it ought not to have been granted because the information sought was not necessary to plead.

In allowing the appeal and setting aside the order, The Court of Appeal held that necessity is a requirement for Norwich order but rejected a necessity to plead requirement as being too strict. It said:

On my reading of the authorities in Canada and England, it is unclear whether the requirement of a showing of necessity for pre-action discovery properly forms part of the court’s inquiry as to whether the third party from whom discovery is sought is the only practicable source of the information available (as held in Mitsui at para. 24) or as to whether the interests of justice favour disclosure or non-disclosure (as argued by FNG before this court). However, there is no suggestion in the established jurisprudence that it is a stand-alone requirement for the granting of a Norwich order. Nor do I regard it as such.

In my opinion, the precise placement of the necessity requirement in the inventory of factors to be considered on a Norwich application is of little moment. The important point is that a Norwich order is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. It is therefore incumbent on the applicant for a Norwich order to demonstrate that the discovery sought is required to permit a prospective action to proceed, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief…

While an applicant for Norwich relief must establish that the discovery sought is needed for a legitimate objective, this requirement may be satisfied in various ways. The information sought may be needed to obtain the identity of a wrongdoer (as in Norwich Pharmacal), to evaluate whether a cause of action exists (as in P. v. T.), to plead a known cause of action, to trace assets (as in Bankers Trust and Leahy), or to preserve evidence or property (as in Leahy). The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy.

The applicant had asserted that pre-action discovery would allow it to determine the circumstances of wrongdoing and assess its legal remedies. Though the Court of Appeal implicitly accepted these purposes as legitimate, it held that the applicant did not need pre-action discovery given it knew “the nature, timing and apparent purposes of the frauds” as well as the identify of the suspected wrongdoers.

I’ve recently been enjoying Antonin Pribetic’s excellent Trial Warrior Blog. Antonin has two posts on this case, one a detailed case summary and another that discusses how Norwich orders may be used to advance defamation claims against anonymous internet users.

GEA Group AG v. Ventra Group Co., 2009 ONCA 619.