Michael Ross
Associate
June 9, 2023
A recent family law decision from the Court of King’s Bench of Alberta, MBH v CKI, 2023 ABKB 284, clarifies the principles that apply in Alberta to redactions of non-privileged irrelevant information from otherwise relevant and material records.
The Court considered, inter alia, whether the Plaintiff/Respondent must produce redacted portions of previously produced medical/physician records. While medical information is often redacted as irrelevant personal information, the information here was potentially relevant to issues involving the primary care and control of the parties’ children.
The Court noted that, in Alberta, irrelevant information is often redacted or removed from records. In other provinces, even irrelevant information in an otherwise relevant document must generally be disclosed unless the redacting party establishes “good reason” for the redaction (e.g., to protect an important interest, such as patents or trade secrets, personal income tax information, commercially sensitive financial information, records of a purely private and personal nature, or sensitive medical information): Omorogbe v Saskatchewan Power Corporation, 2022 SKCA 116 at paras 22-43. The policy rationale for this approach is that the implied undertaking rule will protect the information, and disputes about redactions can cause delay and increased costs. The Court continued (at paras 38-9):
…As stated in Omorogbe: “…if the courts allow redactions simply because the information removed is irrelevant, it will encourage parties to make them. This is apt to foment abuse and dispute”.
[39] In practice, Alberta’s approach is not significantly different than the other provinces noted. The Alberta cases illustrate that parties redact where they are seeking to protect the very types of sensitive information noted in Omorogbe.
The Court then considered the large volume of electronic and other information that is potentially producible in modern litigation and stated that “common sense and proportionality must prevail. Parties should… be entitled to redact or remove clearly irrelevant information where appropriate.” However, redactions should “not be made lightly” or for strategic or tactical purposes.
Where practical, parties should thus discuss and agree on specific redactions or types of redactions. Otherwise, if proposed redactions do not meet the following criteria, they should be disclosed as part of the relevant and material record:
(1) the redacted information is clearly irrelevant;
(2) as a matter of proportionality, the benefit of streamlining production or protecting the irrelevant information (considering the nature of the interest to be protected) outweighs any resulting delay or costs of litigation; and
(3) the redaction is sufficiently unconnected to the remaining record and does not make it misleading or difficult to understand.
Parties should maintain a contemporaneous record of the grounds for the redaction to assist the court in resolving any disputes. The Court will inspect the redactions at issue and conduct a fact-specific inquiry to determine whether to order production. Applying these principles to the present case, the Court found that some of the redacted information was relevant and material and should be produced.
Understanding the legal test for redactions is crucial for litigators involved in disclosure processes. By adhering to the established principles and maintaining transparency, parties can avoid costly disputes over redactions.
