NEWMARKET COURT FILE NO.: FC-16-051428-00

DATE: 20180601

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL JAMES GREENHALGH

Applicant

– and –

JILL KRISTI VERWEY

Respondent

COUNSEL:

J. Holzman, for the Applicant

M. Hogan, for the Respondent

HEARD: May 29 and 30, 2018

RULING ON ADMISSIBILITY OF EMAILS

QUINLAN J.:

Overview

[1] The Respondent Jill Verwey seeks to admit into evidence two emails purportedly sent by the Applicant Paul Greenhalgh in 2004 and 2005. In 2017, the emails were downloaded at Verwey’s request from the hard drive of a Broadcast Video Systems (BVS) computer. BVS was a company that had been owned by Verwey, her father, and Greenhalgh. Verwey’s position is that the hard drive came from the computer that Greenhalgh used.

[2] The 2004 email was sent to a person conducting an interview. In the email, aimed at developing a story about Greenhalgh’s adventure trips, Greenhalgh discusses his marital status and refers to something his “wife” said.

[3] The 2005 email was sent to a third party. In it, Greenhalgh discusses his relationship with Verwey.

[4] As Greenhalgh noted in his opening statement—also made clear in Verwey’s opening statement—the parties’ date of separation is the key to this case. It will inform the issue of equalization of net family properties. Greenhalgh claims the separation occurred in 1996; Verwey claims they separated in 2012, when Greenhalgh left the home the parties shared at 25 Forest Ridge Road, Richmond Hill.

[5] I conducted a voir dire into the admissibility of the emails. At the completion, I advised counsel that, for reasons to follow, the emails would be admitted. These are my reasons.

Positions of the parties

[6] Verwey’s position is that the emails are relevant because they demonstrate Greenhalgh’s state of mind on the status of his relationship with her at a time he claims they were separated.

[7] Greenhalgh opposes these emails’ admission, arguing the following:

a. at a motion on June 28, 2017, Verwey’s counsel undertook that “none of the emails that were on the [BVS] server will show up in these proceedings”;

b. the emails were surreptitiously obtained;

c. the parties were separated at the time;

d. Greenhalgh had a reasonable expectation of privacy in the emails;

e. the practice of snooping in family law cases has to stop;

f. the prejudice in admitting the evidence exceeds any probative value; and,

g. no evidence exists about the hard drive’s chain of custody or the emails’ reliability.

Legal principles

[8] Both parties rely on Grassie v. Grassie, 2013 ONSC 1198, 33 R.F.L. (7th) 399, where the court followed the admissibility approach set out by Wildman J. in Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ON SC), [2008] O.J. No. 2600 (Ont. S.C.), a case involving emails protected by solicitor-client privilege. Both counsel addressed the three-part test set out in Eizenshtein: (1) relevance, (2) procedural fairness, and (3) balancing probative value and prejudicial effect.

[9] Grassie referred to Autosurvey Inc. v. Prevost, [2005] O.J. No. 4291 (Ont. S.C.) at para. 48. There, Quigley J. emphasized the principle of the parties’ rights to be “free and secure from encroachment upon their reasonable expectations of confidentiality and privacy”.

[10] The cases counsel provided address policy reasons for considering the admissibility of evidence in family law cases. As the court noted in Hameed v. Hameed, 2006 ONCJ 274, [2006] O.J. No. 3109 at para. 11—a case dealing with surreptitious telephone-call recording—such behaviour should be strongly discouraged given the already present conflict and mistrust in family law cases. At para. 13, Sherr J. held that “the court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so.”

Evidence on the voir dire

[11] Verwey’s common-law spouse Richard Boisvert testified. Boisvert was employed at BVS at the time in question and resides with Verwey at 25 Forest Ridge Road. He testified that Verwey was BVS’s domain administrator and knew its domain access codes and passwords. After 2010 to 2011, when BVS ceased operations, approximately 12 old computers were taken from the BVS offices and stored in the basement of 25 Forest Ridge Road. The old computers were kept in the event information was required “down the road”.

[12] Boisvert testified that he and Verwey decided they needed a copy of the hard drive—once the divorce started—to try and find evidence they could use against Greenhalgh or to support Verwey. Boisvert attempted to access the hard drive’s contents but was unsuccessful. At all times, Boisvert was assisting Verwey.

[13] David Foster, manager of Memofix Hitech Services Inc.’s data recovery department, testified that Boisvert engaged Memofix on April 19, 2017, to attempt to recover all of the data on a hard drive. Memofix completed the recovery and returned the hard drive and a copy to Boisvert on May 23, 2017. Approximately 45,000 good files were recovered and 29 were damaged. The Outlook Express folder that held emails under the name “Paul Greenhalgh” contained 47 different email folders dated from 2004 to November 27, 2007. Depending on the retention policy set up by the administrator, the emails could be deleted from the server immediately or stay on for days, although not years.

[14] Foster confirmed that the hard drive had been opened; he did not notice anything about it, however, to raise a suspicion that it or the data within was otherwise tampered with or modified. The user named Paul Greenhalgh and the administrator were the only two users who could access the email account, although Foster had no way of verifying the hard drive’s chain of custody, or of determining if someone else with the password had logged into the computer. Unless tampering occurred in 2007, the odds are very slim that the data was tampered with at all. An email deleted from the server would remain on the hard drive.

[15] After the hard drive was returned, Boisvert viewed the files on it. Boisvert had never before seen any of the documents or emails that were on the hard drive; the information was totally new to him.

[16] Verwey’s counsel Mark Hogan informed the court that Verwey provided him the 2005 email on May 24, 2017. He had that email—and a third email that is not in issue—when the motion was argued on June 28, 2017. He provided the 2005 email to Greenhalgh’s lawyer Judith Holzman before Verwey’s second questioning in late August 2017. Hogan does not recall when he received the 2004 email or when he provided it to Holzman, besides that it was in his exhibit book provided to Holzman on May 7, 2018. On November 2, 2017, Hogan advised Holzman that he would call a Memofix representative as a witness to testify on “data recovery from BVS computers”.

Analysis

The undertaking

[17] On June 28, 2017, Greenhalgh brought a motion seeking to shut down the BVS.ca domain name and to receive the password to allow him to check for emails.

[18] By the time of the motion, Verwey had sold the domain BVS.ca to the parties’ son. During the motion, Hogan advised the court that “the paul@bvs.ca emails” no longer existed—the emails were deleted and the account was closed. He referred to affidavits from Verwey and her son in which both stated that “the emails have been deleted…they don’t exist”.

[19] The following exchange then took place:

Court: So, I take it then, they will never show up in a trial of these issues?

Hogan: None of the emails that were on the server will show up in these proceedings.

[20] Holzman stated that she understood from the undertaking that no emails from BVS.ca would be admitted at trial. Verwey produced two of the three emails downloaded from the hard drive, however, after the undertaking was given and before the second day of her examination in August 2017. Also, the use of a data recovery service was brought to Holzman’s attention by the first trial scheduling conference on November 2, 2017. These two emails were neither taken nor destroyed from the server. Rather, they were downloaded from the hard drive from an old BVS computer stored at 25 Forest Ridge Road. I find that Hogan’s position in seeking their admission does not violate his undertaking to the motions court on June 28, 2017, an undertaking limited to emails on the BVS server.

Should the emails be admitted?

[21] I propose to conduct my analysis in accordance with the considerations prescribed by the courts in Eizenshtein and Grassie, and follow the three-step test outlined above: (1) relevance, (2) procedural fairness, and (3) balancing probative value and prejudicial effect.

a. Are the emails relevant to an issue at trial?

[22] The parties agreed that I should review the emails in making my decision. The emails speak to Greenhalgh’s view about the nature of his relationship with Verwey at a time when he claims they were separated. In the 2004 email, Greenhalgh referred to his marital status and to his “wife”. In the 2005 email, Greenhalgh referred to “the system that Jill and I have”. The emails are probative of Greenhalgh’s view on the state of his relationship with Verwey and their date of separation. As in A.F. v J.W., 2013 ONSC 4272, [2013] O.J. No. 3153 (aff’d 2015 ONCA 729), this goes to the “very root” of the issues before the court.

b. Are there concerns of procedural fairness?

[23] The computer on which the hard drive was stored was BVS’s property. As noted above, BVS was owned by Greenhalgh, Verwey, and Verwey’s father. Verwey was the office administrator, and her position entitled her the right to access the contents of the computer used by Greenhalgh. Greenhalgh’s expectation of privacy on data stored within a company computer to which Verwey had access would thereby be lessened.

[24] Greenhalgh used the computer until 2007 or 2008. After that, the computer was stored on BVS premises and then at Greenhalgh and Verwey’s home at 25 Forest Ridge Road. The computer—along with many other BVS computers—was retained in the event that information was later required. Greenhalgh took no steps to remove the computer from Verwey’s control, between his last use of it in 2007 or 2008 and until 2012 when he left the home. There is no evidence that he sought the computer’s return at any point, although he sought to have the BVS.ca domain name shut down and asked that he be provided with the password at the motion.

[25] The emails were written at a time when Greenhalgh claims that the parties were separated but when Verwey claims they were not. As noted, the date of separation is an issue to decide in this trial.

[26] Unlike in many of the cases Greenhalgh cited, this situation involves no surreptitious recording of conversations. Rather, this case involves searching a hard drive on what can fairly be described as an abandoned company computer, and by a person who had the right to access the information when it was placed on the computer.

[27] Verwey’s counsel, however, failed to immediately produce the emails to Greenhalgh’s counsel.

c. Does the probative value outweigh the prejudicial effect?

[28] Both emails hold significant probative value.

[29] In the 2004 email, Greenhalgh responded to interview questions for a story intended to become public. This trial’s exhibits include a January 2003 Toronto Star interview with Greenhalgh about his adventure trips, in which he also referred to his “wife”. Little, if any, prejudice arises from this email’s admission.

[30] The 2005 email speaks to the “system” that Greenhalgh and Verwey had at that time. Although minimal prejudice might arise from admitting this email, it is clear from the evidence at trial that Greenhalgh did not keep private his relationship with Verwey (or lack thereof). The 2005 email does not contain embarrassing information or jeopardize any relationship in which Greenhalgh is now involved.

[31] There is no indication the data on the hard drive was modified or tampered with.

Conclusion

[32] I am satisfied that the emails should be admitted. I considered all of the relevant factors, including the policy reasons in family law cases emphasized by Sherr J. in Hameed at para. 13 and quoted above in paragraph 10.

[33] Verwey established a compelling reason for admitting the emails: they are relevant to the issues before the court and their probative value greatly outweighs their prejudicial effect. Concerns regarding any procedural unfairness are minimal.

[34] The evidence meets the test of threshold reliability and any issues regarding ultimate reliability and the “chain of custody” can be considered in assessing the weight to give to the evidence.

QUINLAN J.

Released: June 1, 2018