CITATION: Harris v. Bayerische Motoren Werke Aktiengesellschaft et al. 2024 ONSC 2341
DIVISIONAL COURT FILE NO.: 22-662-00
DATE: 20240423
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Firestone R.S.J., Charney and Leiper JJ.
BETWEEN:
PETER SCOTT HARRIS
Appellant
– and –
BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT AND BMW CANADA INC.
Respondents
K. Podrebarac, F. Yu for the Appellant
P. Pliszka, K. Potter, C. Pilkington for the Respondents
Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6
HEARD at Toronto: February 13, 2024
REASONS FOR DECISION
Firestone, R.S.J.
Overview
[1] The Appellant Peter Scott Harris (“Harris”) appeals from the production and redaction order of Perell J., the case management judge, dated November 16, 2022 (the “order”).
[2] This is a class action brought by the representative plaintiff Harris on behalf of all persons or entities in Canada who owned or leased certain Mini Cooper cars manufactured between 2002 to 2008 in Germany by Bayerische Motoren Werke Aktiengesellschaft (“BMW-AG”) and distributed by its Canadian subsidiary, BMW Canada Inc. The claim alleges that the vehicles had a defective power steering system that could malfunction and cause a dangerous loss of power steering or a fire. The class action was certified by the motion judge on April 2, 2020.
[3] During the pre-common issue discovery stage of the proceeding a dispute arose regarding the discovery plan and manner of production of documents required by the foreign defendant, BMW-AG. The dispute relates to the application of European and German Privacy laws to the disclosure and production obligations under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
[4] BMW-AG raised concerns that documents it was required to both disclose in their affidavit of documents and produce could reveal personal information in contravention of the European Union General Data Protection Regulation (“GDPR”) and German privacy law under the German Federal Data Protection Act (“BDSG”). In BMW-AG’s draft Discovery Plan it proposed that any document containing foreign private data be redacted.
[5] Prior to Harris’s intended motion to settle the Discovery Plan, BMW-AG brought the underlying motion seeking a declaratory order regarding its disclosure and production obligations in light of the conflict it raised between their disclosure and production obligations under the Ontario Rules and data protection and privacy obligations pursuant to European and German law. BMW-AG sought a declaratory order that it produce records in accordance with the “two-step” layered approach proposed by its expert. BMW-AG took the position that European and German privacy laws prevented it from disclosing personal data and required them at first instance to redact all personal data from documents that were disclosed and produced in the litigation.
[6] Following a case conference held in advance of BMW-AG’s motion, BMW-AG was directed to deliver an affidavit of documents with redactions which would then be reviewed and assessed at the motion. BMW-AG delivered an affidavit of documents that redacted references to every person in each document listed and produced. At the underlying motion Harris submitted that the extent of the redactions made by BMW-AG rendered the documents unusable and precluded class counsel from being able to prosecute the action. He argued that all documentary production should be undertaken strictly in accordance with the Rules with no redactions at all from or in otherwise presumptively producible records.
[7] At the underlying motion the parties each tendered expert evidence regarding how foreign privacy laws could be accommodated and complied with within the context of the disclosure obligations under the Rules. After considering the positions of the parties the motion judge crafted an order that required BMW-AG to deliver a further affidavit of documents with disclosure and production of documents relevant to any issue in the action with redactions for privileged information and personal data not relevant to any issue in the action.
[8] Specifically the order provided that BMW-AG could redact documents provided it is in a position to establish that: (a) the redacted information is irrelevant to the issues, serving no legitimate purpose in resolving the issues; and (b) disclosure of the information would cause significant harm to the producing party or would infringe public interests deserving of protection, namely the interests of the person whose personal information is being disclosed. For clarity and to give effect to the order made, the motion judge used the text of r. 30.03 and Form 30 B as a template and modified it by inserting the additional wording contained in his reasons regarding the specific redactions allowed and annexed it to the back of the order. The motions judge ordered that an affidavit of documents shall not be filed as directed under r. 30.03(5) without leave of the court.
[9] The order did not relieve BMW-AG of its obligation to deliver an affidavit of documents and list and produce documents under each of the applicable schedules. Further, the ability to redact pursuant to the order was not unbounded. The order directed that BMW-AG could redact only on the limited basis specified. The order did not prevent or restrict Harris’s ability to subsequently test and challenge the propriety of any redactions made in accordance with the process set-forth in the Rules.
The Issues
[10] The issues for determination are as follows:
Did the motion judge exceed his jurisdiction in making the order and was the Appellant denied procedural fairness?
Did the motion judge err in ordering that BMW-AG could redact personal data from its productions?
If Foreign Law required redaction, should such redactions have been allowed?
Did the motion judge err by imposing a leave requirement to file an affidavit of documents?
[11] For the reasons that follow I would dismiss the appeal on the first three grounds of appeal and grant the appeal on the fourth.
Standard of Review
[12] An appellate standard of review applies to this appeal: correctness as to questions of law, and palpable and overriding error in respect to questions of fact or questions of mixed fact and law. Where there is an extricable legal principle, the standard is of review is correctness. With respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19, and 27-36 and Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[13] Questions of law are questions about what the correct legal test is; questions of fact are questions about what took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests: see Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 35.
[14] When the decision under appeal is fact-intensive or involves the exercise of discretion, care must be taken in identifying extricable errors of law since the process of severing out legal issues can undermine the standard of review analysis. An arguably unreasonable exercise of discretion is not an error of law or jurisdiction: Wood Buffalo (Regional Municipality) v. Alberta (Energy and Utilities Board), 2007 ABCA 192, 80 Alta. L.R. (4th) 229, at para. 8; Natural Resource Gas Limited v. Ontario (Energy Board), 2012 ONSC 3520 (Div. Ct.), at para. 8; Conserve Our Rural Environment v. Dufferin Wind Power Inc, 2013 ONSC 7307 (Div. Ct.), at para. 13.
[15] On an appeal of a judge’s discretionary decision, the court will only intervene where the discretion was exercised on a wrong principle of law, or a clear error has been made. An appellate court should defer to the findings of fact made by a motion judge unless the judge has disregarded or failed to appreciate relevant evidence: Bottan v. Vroom (Ont. C.A.), at para 13; Rimon v. CBC Dragon Inc., 2024 ONCA 128, at para. 14.
The Legislative Context
[16] The GDPR and BDSG impose an obligation on BMW-AG not to disclose the personal data of its employees, customers, or any other person unless it can satisfy certain statutory requirements. Foreign privacy law applies to the personal data of any person whose data is stored in a company’s records, whether or not that person is an employee and includes data about persons with whom a company’s employees may have communicated or transacted, such as business partners or suppliers.
[17] The experts retained by both Harris and BMW-AG agreed that BMW-AG is a controller of personal data within the meaning of the foreign laws and therefore are obligated to comply with the prohibitions, conditions, and restrictions in processing such data. This includes disclosure of data in a legal proceeding. The experts agreed that personal data is broadly defined, and disclosure of any personal data is prohibited, unless a prescribed exception applies. They also agreed that the only exception that might apply in this case is the “Legitimate Interest Exception” in Art. 6(1)(f) of the GDPR, which states as follows:
Article 6.
Processing shall be lawful only if and to the extent that at least one of the following applies:
f. processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where data subject is a child.
[18] Disclosure of personal data for the purposes of asserting or defending claims in legal proceedings is a legitimate interest under Art. 6(1)(f) of the GDPR if two preconditions are met: first is necessity; the proposed disclosure must be strictly necessary with no reasonable alternative which can satisfy the same objective. Second is the balancing of interests; the legitimate interest in disclosing the personal data must not be overridden by the rights and interests of the person whose information would be disclosed in preventing the disclosure. Disclosure is prohibited if the interests of the data subject outweigh the interests of the controller or third party to whom disclosure is to be made. Both experts agreed that there are sanctions and consequences for violation of the GDPR and BDSG.
[19] There is a three-step process to follow in the balancing of interests stage: (1) identify the interest at stake; (2) assess whether the data processing (disclosure in this case) is necessary to pursue the identified interests; and (3) assess if such interests are overridden by the interests or rights of the data subjects. The experts agreed that factors to be considered in carrying out the balancing of interests exercise include (1) the reasonable expectations of the data subject; (2) the potential impacts on the data subject; (3) the nature of the data; and (4) the scope and manner of the processing (i.e.; disclosure). There is disagreement between the experts about the process BMW-AG is required to follow in order to satisfy the necessity test and balancing of interests test.
[20] Dr. Hartung, the expert retained on behalf of BMW-AG, states in applying the “necessity” and “balancing of interests” preconditions that just because information contained in a document may be relevant to the litigation does not mean that all personal data in that document is relevant and therefore should be disclosed at first instance. Dr. Hartung’s opinion was that the GDPR mandated a “layered approach”. Under this approach, all personal data would be redacted from the document and subsequently disclosed if it is established that the disclosure of the document with those redactions would compromise the effectiveness of the fact-finding process.
[21] Dr. Piltz, the expert retained by Harris, disagrees with the layered approach and opines that such approach is not necessary in order to comply with the GDPR and BDSG. In his opinion personal data that is relevant and necessary to the litigation can be processed and exported. In applying the three-step “balancing of interests” test, Dr. Piltz opines that: (1) the plaintiffs have a legitimate interest in receiving unredacted relevant documents in order to pursue their civil claim; (2) the requirement to provide relevant documents in accordance with the Rules is sufficient to satisfy the necessity step of the balancing test; and (3) work-related personal data (which was the primary kind of personal data contained in the disclosure) was not particularly sensitive and would be accessed by a small number of people. Ontario’s deemed undertaking rule would apply and as a result the interference with a data subject’s rights was low.
The Motion Decision
[22] The motion judge agreed with Harris that the legitimate interest exception is already ingrained or “baked” into the Rules by way of the relevancy test and therefore at first instance it is not necessary to redact “all personal data” as mandated under the layered approach. However, the motion judge disagreed that it necessarily follows that all personal data should therefore be disclosed at first instance. In balancing the competing interests, the motion judge makes clear, as contemplated by the Rules, that it is only relevant information—in this case, relevant personal data—which will satisfy the Legitimate Interest Exception test and therefore be producible. The motion judge indicated that a case-by-case analysis is required in order to determine whether such personal data should be redacted.
[23] To balance the competing interests at play, the motion judge used a procedural tool available to him, namely redaction. The motion judge’s goal was to ensure, at the initial disclosure stage that only personal data that is not relevant to any issue in the action or privileged information would be redacted from the documents listed in the affidavit of documents and produced. Such a process would allow BMW-AG to comply with its competing disclosure obligations while preserving Harris’s ability to challenge all redactions made.
The Issues
1. Did the motion judge exceed his jurisdiction in making the order and was the Appellant denied procedural fairness?
Position of the parties
[24] Harris argues that pursuant to r. 37.13(1), the motion judge’s jurisdiction was limited to either granting the specific relief sought on the motion or dismissing or adjourning the motion. Accordingly, once the motion judge rejected the moving parties request for a declaratory order that it produce its documentary productions strictly in accordance with the “layered approach” he had no alternative but to dismiss the motion in its entirety. Harris submits that the motion judge did not have the jurisdiction to order relief that was not specifically sought or requested on the motion. BMW-AG did not request redactions of irrelevant personal data or privileged data and therefore the issue was not, Harris submits, properly before the court. BMW-AG argued the motion on the basis that comity required that personal data be disclosed only where it is strictly relevant. In addition, Harris says that the motion judge did not have jurisdiction to amend the Rules or Forms and did so without giving the parties notice or an opportunity to make submissions. As a result, there was a denial of procedural fairness.
[25] In response BMW-AG submits that Harris relies on a flawed understanding of r. 37.13(1), which states that a motion judge may “grant the relief sought or dismiss or adjourn the motion, in whole or in part and with or without terms” [emphasis added]. The motion judge was not obligated to accept either party’s expert opinion in its entirety. In accordance with r. 37.13(1) the motion judge had jurisdiction to grant part of the relief sought and impose terms, which is exactly what he did. The motion judge’s jurisdiction was not limited to the binary choice posited by Harris. In accordance with the rule the motion judge’s jurisdiction included the flexibility to grant part of the relief sought in order to achieve a just result, and to do so by imposing terms based on the facts and law. The order represented a compromise between the parties’ competing positions. Further, the motion judge did not amend the Rules, rather he simply used the language of r. 30.03 as a template, making modifications to it in order to express and clarify the intent and application of the order made in this specific case. In other words, the motion judge’s modifications provided counsel with case-specific guidance with respect to the implementation of the order.
Analysis
[26] A high degree of deference is to be accorded to the motion judge regarding the application of the Rules. I find the motion judge did not err by exceeding his jurisdiction and had the authority to make the order. There was not a denial of procedural fairness in doing so.
[27] The issues for determination before the motion judge related to BMW-AG’s competing documentary production obligations. This issue was in dispute between the parties from the outset. In the notice of motion BMW-AG sought a declaratory order that it produce its documentary productions in accordance with the ‘layered approach” proposed by their expert. In the alternative however, BMW-AG requested “such further and other relief as this Honourable Court may deem just”.
[28] Rule 1.04(1) provides that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. It is in this context that the rules were to be applied by the motion judge. Read together, rr. 1.04(1) and 37.13(1) provided the motion judge with the discretion and flexibility to grant some or part of the relief sought on the motion as it related to the disclosure of personal data and privileged information and to use the procedural tools available to him to achieve a just result regarding the issues in dispute on the motion.
[29] The motion judge did not, as suggested by Harris, amend the Rules or Forms without giving either party notice or an opportunity to make submissions. For clarity and to give effect to the procedural order made, the motions judge used the text of r. 30.03 and Form 30 B and inserted the additional wording regarding the specific redactions allowed for personal data and privilege in this proceeding specifically.
[30] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 21, the Supreme Court of Canada references its earlier decision in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, where the court states “the concept of procedural fairness is eminently variable, and its content must be decided in the specific context of each case”.
[31] Redaction as a method of achieving a balance in the production process was an essential feature of the “layered approach” proposed by BMW-AG’s expert which was addressed and responded to by Harris’s expert. While the motion judge did not accept BMW-AG’s expert’s proposal as to the precise manner and extent to which redactions should be made, redaction as a procedural tool was clearly referenced in both expert reports, such reports having been delivered prior the hearing of the motion. The concept of redaction was not foreign to the parties and was not raised for the first time at the hearing of the motion. Both parties made submissions to the motion judge on what personal data could be disclosed. It was open to the motion judge in the exercise of his discretion to use the procedural tools available to him in a way that resolved the issues he was confronted with during the initial disclosure process.
2. Did the motion judge err in ordering that BMW-AG could redact personal data from its productions?
Position of the parties
[32] Harris argues that the motion judge erred in law in ordering that BMW-AG could redact information from its relevant and producible documents. It is submitted that once the motion judge agreed with Dr. Piltz that the legitimate interest exception had been satisfied there was no need to redact any personal information. Harris further submits that given the motion judge found that the three-step test for the legitimate interest exception was already baked into the Rules, there was no need to make amendments to or supplement r. 30.03 as they contend the motion judge did.
[33] Harris references the unreported[^1] decision of Kalra v. Mercedes-Benz Canada Inc., Daimler AG et al (September 16, 2019), a previous class action proceeding against a German auto manufacturer in which the defendant also introduced evidence from Dr. Hartung and sought approval and implementation of the layered approach. In Kalra, Belobaba J. rejected the application of the layered approach and ordered documents to be produced in unredacted form, an approach which was considered not to breach foreign law. Harris states that the motion judge was strictly obligated and bound to follow Kalra in addressing the issues on the motion before him.
[34] Harris submits that the motion judge in this case granted BMW-AG broad power to redact information from its otherwise producible documents if such information is irrelevant and would cause significant harm to the producing party or infringe on public interests. The motion judge did not state how the requirements of the test are to be met or if court approval of redactions is required. The order allows BMW-AG to redact information, rather than just personal data, and the order considers the impact on the producing party, rather than the data subject and eliminates the balancing of interest’s requirement imposed under the GDPR. The result, Harris argues, is that in effect BMW-AG has free reign to make unilateral redactions which is inconsistent with both European and Ontario jurisprudence. The order does not require BMW-AG to justify any redactions made and shifts the burden to Harris to challenge presumptively valid redactions in an evidentiary vacuum by way of motion.
[35] BMW-AG submits that the underlying flaw in the position taken by Harris is that the motion judge clearly did not accept Dr. Piltz’s opinion that redactions were unnecessary in their entirety. Rather, what the motion judge did in fact accept was that the three-part Legitimate Interest Exception was already “baked-in” to the Rules, so the “layered approach” did not need to be applied. The motion judge went on to state that redactions are allowed under the Rules where the disclosure of information could cause significant harm to the producing party, a point which was not reflected in Dr. Piltz’s opinion.
[36] Harris contends that the motion held that the legitimate interest exception permits the disclosure of personal information without redactions, as long as other parts of a document containing personal data were relevant. BMW-AG submits that this is an incorrect reading of the motion judge’s decision. Rather, what the motion judge held is that the legitimate interest exception is satisfied only if personal data is relevant to the issues in the litigation. Personal data that is irrelevant can and should be redacted.
[37] BMW-AG also points out that in Kalra, while the production of all relevant documentation in unredacted form was ordered it was to be coupled with what was described as a comprehensive Protective Umbrella or Judicial Lockbox that may include Sealing and Confidentiality Orders and NDAs to fully achieve the objectives of the GDPR. The important point is that in that case, it was recognized that compliance with the GDPR required some form of modification to the documentary production process under Ontario law. In the present case the motion judge found it could be achieved by way of redaction. In Kalra it was to be achieved by way of a Sealing or Confidentiality Order.
[38] The order, BMW-AG submits, does not allow blanket unilateral redactions to otherwise producible documents as Harris contends. Rather, redaction of irrelevant information is permissible only if such disclosure would cause significant harm to the producing party or infringe public interests deserving of protection. The redaction process ordered aligns with the established practice for redacting privileged information where the producing party makes an initial determination, and the receiving party may move to challenge such determination. The order in no way restricts the ability to bring such a challenge. This also accords with the established process for determining the relevancy of documents, where the producing party makes the initial determination of whether its documents are relevant and producible and swears to the completeness of its productions leaving it to the receiving party to move for a further and better affidavit of documents.
[39] BMW-AG refers to the recent decision in Boehringer Ingelheim (Canada) Ltd. v. Pharmascience Inc., 2023 FC 584 where the Federal Court allowed redaction where there was a legitimate purpose for doing so, namely, to ensure compliance with the GDPR and BDDG foreign privacy laws.
Analysis
[40] I conclude that the motion judge did not err in ordering that BMW-AG could redact personal data from its productions. The discretionary order was consistent with established legal principles.
[41] Section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides the court with the authority to order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record. While there is no corresponding section dealing with redaction, similar principles apply.
[42] In the decision of McGee v. London Life Insurance Company Limited, 2010 ONSC 1408, 86 C.P.C. (6th) 381, the court dealt with the production of documents in a class action pension surplus case. This decision provides a general statement of the law regarding redaction and production of documents.
[43] In McGee, at paras. 8-9, Strathy J. (as he then was) states:
[i]t is impermissible for a party to redact portions of a relevant document simply on the basis of its assertion that those portions are not relevant … The whole of a relevant document must be produced except to the extent it contains information that would cause significant harm to the producing party or would infringe public interests deserving of protection. [Emphasis added.]
Additionally, “[t]he party seeking to [redact portions of a document] bears the onus of establishing that redaction is necessary to protect an important interest”: McGee, at para. 13.
[44] In this case the motion judge’s order provided that BMW-AG could redact … provided that it was in a position to establish that: (a) the redacted information is irrelevant to the issues, serving no legitimate purpose in resolving the issues; and [emphasis added] (b) disclosure of the information would cause significant harm to the producing party or would infringe public interests deserving of protection, which would be the interests of the person whose personal information is being disclosed. The order was clear that relevancy on its own was not sufficient justification to redact; rather irrelevancy as well as significant harm or infringement of an important public interest was also required. The disclosure process set forth in the order is subject to the ongoing oversight by the court.
[45] It is apparent from the motion judges’ reasons that he was alive to and mindful of the open court principle set forth in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75. The motion judge’s reasons demonstrate a sensitivity to and understanding of the need to balance open courts and full disclosure with other limiting obligations. The motions judge’s decision was consistent with the principles in both the McGee and Sherman decisions.
3. If Foreign Law required redaction, should such redactions have been allowed?
Position of the parties
[46] Harris submits that even if the GDPR and BDSG requires redaction of relevant documents, it should not be allowed. Harris relies on Laxton v. Coglon et al, 2006 BCSC 1458, for the proposition that a potential breach of foreign law does not excuse a party from its pre-trial discovery obligations in Canada.
[47] In Laxton at paras 34-35 the Supreme Court of British Columbia states:
[The defendant] knowingly decided to do business in a jurisdiction (namely, British Columbia) in which, if it became involved in litigation, it would be required to make full disclosure of its documents. Having assumed that risk by doing business in this jurisdiction, it would be unjust to the Plaintiff to excuse [the defendant] from complying with that obligation. Put another way, to exercise my discretion in this case would not only deprive the Plaintiff of her right to be provided with all relevant evidence, but it would permit a foreign country to frustrate the administration of justice in Canada in what is essentially a domestic situation.
[48] In response BMW-AG submits that the jurisprudence does not support the proposition that a Canadian court should uncritically enforce and apply its domestic laws without regard to the impact it will have on parties and witnesses under foreign laws.
[49] Canadian courts have repeatedly affirmed that a domestic court should have regard for foreign laws binding on a litigant and facilitate compliance with those laws if it will not interfere with the court’s fact-finding process. BMW-AG cites the decision of the Court of Appeal for Ontario in Frischke v. Royal Bank of Canada (1977), 17 O.R. (2d) 388, at para. 26, where the court states:
An Ontario Court would not order a person here to break our laws; we should not make an order that would require someone to compel another person in that person’s jurisdiction to break the laws of that State. We respect those laws. The principle is well recognized.
[50] This principle was subsequently followed in TD Bank, N.A. v. Lloyd’s Underwriters, 2016 ONSC 4188, 92 C.P.C. (7th) 181, at para. 18, where the court states:
Our courts have always sought means of accommodating the reasonable requirements of foreign law in matters pertaining to the production of documents in litigation. They do so whether by way of recognizing statutory privileges under foreign law or by way of extending comity.
Analysis
[51] It cannot be said that the motion judge’s order made at this stage of the litigation with the specified pre-conditions permitting redaction will have the ultimate effect of depriving the plaintiff of his right to be provided with all relevant evidence, especially given the court’s ongoing oversight and the opportunity for subsequent challenges to any and all initial redactions made. The motion judge’s use of redaction allowed the court at this stage of the proceeding to appropriately balance the competing interests, namely avoiding infringement of public interests deserving of protection and compliance with foreign law, without frustrating the Ontario courts’ fact-finding and disclosure process. The order made is consistent with the principles in both the Laxton and Frischke decisions cited by the parties.
[52] I agree with BMW-AG’s submission that this is a matter of international comity; while foreign laws cannot dictate the procedures to be followed by Canadian courts, a foreign litigant should not be compelled to contravene the laws of its jurisdiction if domestic fact-finding process can accommodate compliance with foreign laws.
4. Did the motion judge err by imposing a leave requirement to file an affidavit of documents?
[53] Rule 30.03(5) provides that an affidavit of documents shall not be filed unless it is relevant to an issue on a pending motion or at trial. The motion judge ordered that this can only be done with leave of the court. BMW-AG does not oppose Harris’s request that this portion of the motion judge’s order be set aside.
[54] There is no leave requirement under r. 30.03(5) and there was no basis to impose one. The motion judge erred in doing so.
Disposition
[55] For the reasons above I dismiss the appeal on grounds 1, 2, and 3 and grant the appeal on ground 4. On the agreement of the parties, costs of this appeal are to be paid by the Appellant to the Respondents in the all-inclusive amount of $20,000.
___________________________ Firestone RSJ.
I agree
Charney J.
I agree
Leiper J.
Released: April 23, 2024
HARRIS -and- BAYERISCHE MOTOREN WERKE ET AL 2024 ONSC 2341
Applicant Respondent Court File No.: 22-662-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone RSJ, Charney J., and Leiper J.
BETWEEN:
Harris v. Bayerische Motoren., et al.
REASONS FOR DECISION
Firestone RSJ
Released: April 23, 2024
[^1]: While this decision is unreported, the motion judge appended it as a schedule to the decision under appeal.