Catia Amorim
Associate
July 13, 2021
The Superior Court of Justice recently reiterated the test to be met when it comes to redaction of otherwise relevant documents.
In Marsella v. BDBC, 2021 ONSC 3276, a wrongful dismissal case, the plaintiff sought production of unredacted copies of certain documents in the defendant’s Schedule A. The documents at issue were created during an internal investigation which led to the plaintiff’s dismissal and contained the names of non-parties to the litigation.
Arguing for disclosure, the plaintiff posited that there was no evidence to show that the redacted information was sufficiently confidential or sensitive in nature that disclosure would result in “significant harm or prejudice” to BDBC or any non-parties. On the other hand, the defendant argued that the information in question was clearly irrelevant and that PIPEDA applied to limit disclosure.
The court agreed with the plaintiff. Citing Beiko v Stone, 2019 ONSC 1703, Master Abrams noted that a party seeking to avoid disclosure must show that the information is clearly irrelevant and that there is good reason not to disclose it. In addition, citing McGee v London Life Insurance Company Limited, 2010 ONSC 1408, Master Abrams noted that where a document is found to be relevant, the entirety of the document must be produced, “except to the extent it contains information that would cause significant harm to the producing party or would infringe interests deserving of protection”. Per A. B. v Stubbs, 1999 CanLII 14801 (ONSC), evidence of potential harm must be “clear and not speculative”.
Failing this test, the truth-seeking function of the justice system requires production of the relevant information, which may include information regarding non-parties.
In the instant case, Master Abrams found that BDBC did not meet the test as the redacted documents in question were relevant to the issues in the case and there was no evidence adduced of “real potential harm”. Importantly, she noted that BDBC’s interests were sufficiently protected by the common law implied undertaking and the deemed undertaking rule.
The implied undertaking rule requires adverse parties to keep confidential all information disclosed during litigation. Adding to that restriction, the deemed undertaking rule forbids parties from using evidence or information for any purposes other than those of the proceeding in which the evidence was adduced.
In view of the above, and while the plaintiff agreed to some terms, there was ultimately no need for the confidentiality order requested by BDBC.
Marsella serves as a clear reminder that counsel cannot liberally redact otherwise relevant information on the grounds of confidentiality or commercial sensitivity, unless disclosure would result in real potential harm. Moreover, the decision confirms that the oft-forgotten implied undertaking and deemed undertaking rules provide significant, if not fulsome, protection from the release of sensitive information arising in the course of litigation.
Catia Amorim is an Associate at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence. Heuristica has considerable experience in investigations and disputes and recently became the first law firm in the world to be awarded RelativityOne Silver Partner status.
