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 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 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 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.

The British Columbia Court of Appeal has recently published a June 11th oral judgement on an implied waiver of privilege claim and a motion for production of non-party documents.

On the implied waiver claim, the Court held that a pleading by a plaintiff that alleged it would not have entered a settlement agreement had it known about certain fraudulent conduct did not give rise to an implied waiver of solicitor-client privilege in communications related to the settlement. It stressed that a mere allegation as to a state of affairs on which a party may have received legal advice does not warrant setting aside solicitor-client privilege.

On the affirming the chambers judge’s refusal to order production from a non-party, the Court stated, “A chambers judge has a discretion to refuse production of documents that are of marginal relevance where other documents relevant to the same issue have already been produced: see Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770.”

Procon Mining & Tunnelling Ltd. v. McNeil, 2009 BCCA 281.

Those following the litigation of production disputes related to Facebook pages will be interested in the Ontario Superior Court of Justice’s July 6th order in Wice v. Dominion of Canada General Insurance Co.

After hearing a motion in this motor vehicle accident claim, Boswell J. ordered the plaintiff to include relevant documents from his Facebook account in a further and better affidavit of documents, granted the defendant leave to cross-examine the plaintiff on the affidavit and ordered the plaintiff to preserve all information in his Facebook account for the duration of litigation. He followed the Court’s now well-known decision in Leduc v. Roman.

Wice v. Dominion of Canada General Insurance Co., 2009 CanLII 36310 (ON S.C.).

The Saskatchewan Court of Queen’s Bench issued a decision on March 9th that is significant to administrative tribunals and others with an interest in access to records of judicial and quasi-judicial decisions. The Court held that the Saskatchewan Automobile Injury Appeal Commission violates neither the Saskatchewan Health Information Protection Act, the Saskatchewan Freedom of Information and Protection of Privacy Act nor the Charter by publishing decisions that include the personal information of claimants.

The Commission hears appeals of adjuster decisions under the Saskatchewan Automobile Insurance Act. It is required to hold open hearings (subject to its own discretion to order otherwise), required to provide written reasons and required to keep records it considers necessary for the proper conduct of its business. Given the nature of its appeals, Commission reasons often include a description of evidence related to claimants’ diagnoses, prognoses and treatment programs.

The applicant moved for relief in Court after the Commission denied her request to forgo publication of its reasons for deciding her claim or, alternatively, redact her name, age, occupation and other identifying details from its reasons. She argued that disclosure was prohibited by Saskatchewan HIPA, Saskatchewan FIPPA and the Charter.

The Court found that the Commission’s adjudicative mandate necessarily implies the power to publish its reasons in the internet and then rejected all three of the applicant’s arguments.

Its most significant finding was on Saskatchewan FIPPA, where it held that the disclosure of personal information in reasons was permissible because the Commission’s written reasons are excluded from the Act as “material that is a matter of public record.” It explained:

I accept all of these three definitions of “public record”. The Commission is a public adjudicative body required to make and keep its decisions. Section 92 of the Regulations states that Commission hearings are open to the public unless the Commission orders otherwise. Its decisions are open to the public even without publishing them on the web. Further, s. 95(1) and 95(2)(d) places an obligation on the Commission to compile a record of a hearing that was held, which consists in part of the written decision of the appeal commission. It is common ground that the decision is on file at the Commission and accessible to the public. The decision of the Commission contains information prepared by a government institution which has a duty to inquire into the issues associated with the hearing and record its findings permanently.

Further, it seems illogical that members of the public could sit at the hearing and listen to all of the evidence but not have access to the decision of the Commission. The written decision is the last piece of the hearing process. Public access to decisions made by the Commission is important to assist individuals in presenting their claims and understanding the decision-making process of the Commission and to further the principle of public access to adjudicative bodies.

The Court also held that publication would otherwise be permitted under the provision in Saskatchewan FIPPA that authorizes non-consensual disclosures of personal information, in part because the personal information in reasons for decisions is collected for a purpose consistent to the purpose of publishing such information.

The Court’s treatment of the applicant’s Charter argument is also worth note. The Court dismissed a section 7 “security of the person” claim, stating “Section 7 does not protect an individual who is suffering from the ordinary anxieties that a person of reasonable sensibility would suffer as a result of being involved in an open adjudicative process.” In the alternative, the Court held that the publication of reasons did not violate the principles of fundamental justice in light of the open courts principle, which it stressed applies equally to administrative tribunals.

This decision must be understood in the context of the longstanding dialogue between the Saskatchewan IPC and the Commission about the publication of its decisions, and is remarkable in that it conflicts so strongly with the position taken by the IPC in a 2005 investigation report (here) and a paper it published in early 2009 (here). The IPC (who did not participate in this court case) made a number of recommendations in 2005 that the Commission initially refused to follow, though it eventually came into line by issuing an internet posting policy effective June 1, 2008. The Commission’s new policy contemplates publication of reasons with personal identifiers and identifying information removed, while also granting the public access to physical copies of unredacted reasons.

Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106 (CanLII).

On June 30th, the Nova Scotia Supreme Court issued a judgment in which it dismissed a motion for production of documents. Though a routine motion, the Court’s reasoning may demonstrate a more modern approach to production in civil disputes, and one arguably invited by the pending changes to Ontario’s Rules of Civil Procedure.

The plaintiffs brought a motion for production in furtherance of their action against an investment dealer and an individual investment advisor. They sought documents pertaining to complaints brought by other clients against the advisor based on a claim that the dealer failed to supervise the advisor. The Court applied the “semblance of relevance” test called for by Nova Scotia’s now-replaced Civil Procedure Rules and held that the records should not be produced. Though it framed its analysis as being about relevance, the Court clearly weighed the relative value of production against its impact on non-party privacy:

In my view, the documents pertaining to other clients’ trading accounts handled by Mr. Bagnell under Mr. Youden’s supervision fail to meet the test of relevancy. Similar act evidence of this sort has little probative value to an examination of the handling of the plaintiffs’ trading accounts and in my opinion, is not necessary for disposing fairly of the proceeding. The subject allegation of inadequate supervision, whether framed in negligence or as a breach of fiduciary duty or breach of contract, will require the court to determine the appropriate standard of care and/or scope of fiduciary duty owed to the plaintiffs. That is going to be informed largely by evidence of industry standards and practices, the workplace manuals of RBCDS pertaining thereto (which already have been produced), the contract between the parties, and perhaps the introduction of expert opinion evidence. How Mr. Youden supervised the trading accounts of other clients of Mr. Bagnell would have little probative value in this determination, especially where different clients often have different investment objectives and risk tolerances in their trading activities. I am simply not persuaded that the production of these records would likely lead to the discovery of admissible evidence in this action…

The second reason for denying this application is based on confidentiality concerns. If the documents sought were ordered to be produced, there would be some unknown number and identity of other clients whose personal financial affairs would now be disclosed in this litigation, unbeknownst to them. Personal financial information is a very private and sensitive subject to most individuals. While I recognize that the implied undertaking rule would offer some protection, confidentiality concerns nonetheless remain and in the absence of any compelling argument of relevance such that the production of these documents is necessary for disposing fairly of the proceeding, those confidentiality concerns become an added reason for the dismissal of this application.

This is arguably the type of reasoning that will be invited when Ontario’s new Rules of Civil Procedure come into force on January 1, 2010. The landmark changes to the Rules will be brought in by O. Reg 438/08. This amending regulation will establish proportionality as a governing principle for interpreting the Rules, establish bare relevance as the threshold for production and establish a list of factors that a judge or master should consider in making discovery-related orders. The amendments do not expressly contemplate protection of non-party privacy as a relevant factor, and the impetus to the Rule changes (the Osborne Report) is primarily about affordability of civil justice as between parties to litigation. The changes do, however, invite a more nuanced approach to civil production, and the balancing of non-party privacy interests reflected in this Nova Scotia case may become more common.

MacGowan v. RBC Dominion Securities Inc., 2008 NSSC 421.