Court Orders Non-Parties in Parallel Action to Produce Documents

June 11, 2018

In Schwoob v. Bayer Inc., 2018 ONSC 166 (CanLII), a product liability class action, the Ontario Superior Court of Justice ordered two non-parties affiliated with the defendant corporation to produce 2,900 documents that they had produced in a parallel U.S. class action proceeding.

The plaintiffs brought a claim against Bayer Inc. (“Bayer Canada”) and two affiliated companies, Bayer Healthcare Pharmaceuticals Inc. (“Bayer U.S.”) and Bayer Pharma AG (“Bayer Pharma”), in 2010, on behalf of women in Ontario who had taken certain prescription oral contraceptives. The claim alleged negligence in the design, testing, distribution, marketing and sale of the contraceptives, as well as failure to adequately warn of the risk of adverse consequences. … Read More

Order has been Restored: Federal Court of Appeal Upholds Common Interest Privilege

Candice Chan-Glasgow

Director, Document Review Services

March 27, 2018

In Iggillis Holdings Inc. v. Canada (National Revenue), 2018 FCA 51 (CanLII), a highly anticipated decision released earlier this month, the Federal Court of Appeal overturned a Federal Court decision which found that common interest privilege “is not a legitimate or acceptable application of solicitor-client privilege”.

In this case, Abacus Capital (“Abacus”) structured a series of transactions to acquire the shares of the corporations that were previously held by IGGillis Holdings Inc. and Ian Gillis (collectively, “Gillis”). Abacus’ lawyer, with input from Gillis’ lawyer, prepared a memorandum outlining the steps to purchase the shares in the most tax-efficient manner (the “Abacus Memo”). … Read More

Federal Court of Appeal: No Public Interest Class Privilege

Candice Chan-Glasgow

Director, Document Review Services

February 26, 2018

In Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24, the Federal Court of Appeal denied the Commissioner of Competition a public interest class privilege over documents obtained during an investigation.

The investigation related to the Airport Authority’s decision to allow only two in-flight caterers to operate at the Vancouver International Airport. The Commissioner alleged that the Airport Authority behaved in an anti-competitive manner, resulting in “higher prices, dampened innovation and lower service quality”.

The Commissioner’s initial affidavit of documents listed 11,500 relevant documents. Approximately 9,500 of these records were withheld on the basis of an alleged public interest class privilege. … Read More

Redacting Non-Relevant Information

Candice Chan-Glasgow

Director, Document Review Services

January 29, 2018

Earlier this month, the Ontario Superior Court of Justice reviewed the general principles applicable to the redaction of relevant documents. In Qaddoura et al. v. Walkom et al., 2018 ONSC 20, the defendants brought a motion to compel the plaintiff to answer undertakings and refusals given at her continued examination for discovery.

The plaintiff’s claim related to injuries sustained in a motor vehicle accident and involved a significant claim with respect to loss of income and future care costs. The plaintiff undertook to provide the defendants with updated records from her family physician.… Read More

eDiscovery, keyword searching and … Family Law?

Candice Chan-Glasgow

Director, Document Review Services

December 19, 2017

In a previous blog post “Estates in the Digital Age: Debunking E-Discovery Myths in Estate Litigation” we discussed the application of electronic evidence principles to estate litigation, and noted that electronic discovery principles are not limited to large scale commercial disputes. A recent Ontario Superior Court of Justice decision demonstrates, once again, that eDiscovery spans multiple areas of law.

In Leitch v. Novac, 2017 ONSC 6888, the Applicant, Jennifer, filed an application for, amongst other things, spousal support, child support, and equalization of net family property. The parties separated on September 29, 2012 after approximately 15 years of marriage. … Read More