COURT FILE NO.: 16-57318
DATE: 2019-02-08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Arthur Camporese, Plaintiff
A N D:
Bay Area Investigations and Protection Services Inc., Defendant
BEFORE: The Honourable Mr. Justice A.J. Goodman
COUNSEL: S. Coons, for the Plaintiff
R. Antoniuk, for the Defendant
HEARD: November 29, 2018 and January 3, 2019
E N D O R S E M E N T
Introduction:
[1] This is a motion brought by the plaintiff, Arthur Camporese, (“Camporese”) for an order requiring the defendant, Bay Area Investigations and Protection Services Inc., (“Bay Area Investigations”) to produce to the plaintiff a copy of a report dated November 1, 2014 with the videotape surveillance of the plaintiff together with the Investigative Report (“Investigative Report”), or alternatively for inspection by the plaintiff.
Background:
[2] The plaintiff is a lawyer in Hamilton and is a named partner of the law firm Camporese Sullivan Di Gregorio.
[3] The defendant is a business which provides the services of private investigators under the Private Security and Investigative Services Act, 2005, S.O. 2005, c. 34.
[4] This action arises in relation to surveillance of the plaintiff conducted by the defendant in August or September, 2014. The defendant was hired by the plaintiff’s former spouse, “M” to conduct surveillance of the plaintiff as she was concerned that he was having an affair and hiding assets in their divorce proceedings. While the surveillance was conducted in the context of matrimonial proceedings, the surveillance was never produced or used in those proceedings. M advised defendant’s counsel that she never received any written reports or pictures from the defendant.
[5] In conducting their surveillance, the plaintiff claims the defendant took photographs or video of the inside of his home or that of other related family members or others, which were then disseminated to third parties without his consent. Based on those claims, the plaintiff commenced an action on May 4, 2016, seeking damages for breach of privacy, breach of confidentiality, intrusion upon seclusion, and publicity given to private life.
[6] In previous production requests, the plaintiff requested any reports created as a result of the defendant’s surveillance and investigation of the plaintiff. On January 4, 2018, the defendant served an Affidavit of Documents which indicated the “Bay Area Investigations Surveillance Report with Video Footage, dated November 1, 2014” was “prepared in anticipation of litigation.”
[7] The defendant has not produced the Investigative Report, maintaining that under rule 30.02(2) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, it is not required to produce the Investigative Report because it is a privileged document.
[8] Any purported privilege belongs to M and not the defendant. In order to fully address the merits of this motion, I adjourned the hearing to provide an opportunity for M to provide direct evidence to the defendant or to provide testimony or make submissions. On the return date, M did not attend court or provide any evidence in support of the claim for privilege.
Issues:
[9] The defendant has asserted the Investigative Report and surveillance video are protected from production by litigation privilege, or common law privilege. The issues to be determined in this motion are therefore:
Is the Investigative Report and surveillance video protected from production by litigation privilege?
Is the Investigative Report and surveillance video protected from production by common law, case-by-case privilege?
Legal Principles:
Issue 1: Is the Investigative Report protected from production by litigation privilege?
[10] Litigation privilege covers communications which were made for the purpose of assessing the strength of one's litigation position or compiled to prepare directly for litigation. Litigation privilege is not restricted to communications between parties or within a solicitor-client relationship. The privilege is recognized as long as the dominant purpose in preparing or gathering the information was for the litigation: see David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 260.
[11] Litigation privilege is not indefinite. Communications covered by litigation privilege will generally lose protection from disclosure once the litigation for which it was prepared is over. This is because once the litigation is over, the rationale for the privilege, namely to create a “zone of privacy” in relation to pending litigation, no longer exists: Blank v. Canada, 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 34.
[12] However, communications may retain privilege where the litigation that gave rise to the privilege has ended, but a related litigation is still pending. Related litigation was interpreted in Blank, at para. 39, as including “separate proceedings that involve the same or related parties and arise from the same or a related cause of action (or “juridical source”).
Discussion:
[13] During the course of oral submissions, defendant’s counsel did not strenuously press the issue of litigation privilege.
[14] In its January 4, 2018, Affidavit of Documents, the defendant listed the Investigative Report in its Schedule “B” documents, advising that the Report was prepared in anticipation of litigation. As mentioned, the Investigative Report was made in the context of divorce proceedings between the plaintiff and his former spouse. M hired the defendant to investigate statements made by the plaintiff in the context of the matrimonial matter. While the Investigative Report was ultimately not produced or relied upon in the proceeding, it was prepared for the dominant purpose of litigation.
[15] The central question now is whether this matter could be considered “related litigation” to the matrimonial proceedings, such that the Investigative Report retains its litigation privilege.
[16] In Blank, the respondent was seeking damages against the government for alleged fraud and abuse of prosecutorial powers in their investigation into pollution by him and his company. He demanded disclosure of all documents relating to the Crown's conduct of its proceedings against him.
[17] As defined in Blank, some of the key indicators of related litigation are whether the two proceedings share the same or related parties and the same or related cause of action. The example of a related proceeding given in Blank was government litigation related to urea formaldehyde insulation. The parties in each action may have been different but the underlying liability was the same and any materials prepared by the government for one proceeding would retain their litigation privilege in the next proceeding: Blank, at para. 40.
[18] In paras. 42-45, the Supreme Court of Canada found the documents were not covered by litigation privilege because this proceeding was not related and therefore the litigation for which the documents were prepared had ended. The documents were prepared for a criminal prosecution, but the respondent's action was about civil redress for the way the government conducted that prosecution. Fish J. noted “it springs from a different juridical source and is in that sense unrelated to the litigation of which the privilege claimed was born”: Blank, at para. 43.
[19] In this case, while the parties may be similar, the proceedings spring from different judicial sources. The Investigative Report was made for a matrimonial proceeding between the plaintiff and M., which has ended. This action is about civil redress for the way the defendants conducted their surveillance of the plaintiff on behalf of M.
[20] Fish J. also noted in Blank, at para. 44:
Litigation privilege would not in any event protect from disclosure evidence of the claimant party's abuse of process or similar blameworthy conduct. It is not a black hole from which evidence of one's own misconduct can never be exposed to the light of day.
[21] These comments are also relevant to this case. While the allegations of misconduct by the defendant remain allegations, litigation privilege should not be used to create a “black hole” within which to hide evidence of potential misconduct, whether by the government, a private party or in this case, by a private investigator.
[22] This proceeding is not a related litigation to the matrimonial proceedings. That matter is spent. Therefore any litigation privilege which attached to the Investigative Report in the matrimonial proceedings does not remain in this case.
Issue 2: Is the Investigative Report protected from production by a common law, case-by-case privilege?
Legal Principles:
[23] At common law, privilege can be established based on either a “class” privilege (e.g. solicitor-client) or on a “case-by-case” basis: R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 303. Unlike a recognized class privilege, case-by-case privilege refers to communications where there is a prima facie assumption that they are not privileged and are presumptively admissible. The case-by-case analysis requires that the policy reasons for excluding otherwise relevant evidence be weighed in each particular case.
[24] To determine if a communication is privileged on a case-by-case basis, the court must apply the Wigmore criteria: Slatvutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254; M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, at para. 20. The Wigmore criteria are as follows:
The communications must originate in a confidence that they will not be disclosed.
This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
The relation must be one which in the opinion of the community ought to be sedulously fostered.
The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.[^1]
[25] Only if these four conditions are present should privilege be recognized. The burden of establishing the communication as privileged is on the party seeking to exclude the communication.
Discussion:
a) The Communication Must Originate in Confidence
[26] The first criteria to be met is that “the communications at issue have originated in a confidence that they will not be disclosed”: Ryan, at para. 24. The relevant question is whether, at the time the communication was made, there was an expectation that what was shared would be confidential and not disclosed to anyone beyond the individuals in the relevant relationship.
[27] The fact that a communication occurred in private is not enough to establish confidence: Gruenke, at p. 325.
[28] An example where the court determined that a communication did not originate in confidence is Gruenke. In that case, the Supreme Court of Canada found an accused’s communications with her pastor and a lay counsellor did not originate in confidence because it was unclear whether they were expected to keep what Ms. Gruenke told them about her involvement in the crime confidential. The accused testified that she saw no harm in telling her counsellor because she had already decided to tell police about her involvement: Gruenke, at p. 307. While the relationship was of a confidential nature, the accused did not make the communication with a confident belief that it would not be disclosed to anyone else. Lamer C.J.C. writing for the majority noted, “without this expectation of confidentiality, the raison d’être of the privilege is missing” and therefore privilege could not be established: Gruenke, at p. 307.
[29] Defendant’s counsel argues that the report itself indicates that it is confidential. Whether the Investigative Report, produced after the fact, denotes that it is “confidential”, in of itself, does not address the issue of the communications having originated in a confidence that they will not be disclosed. The evidence in relation to the question whether at the time the original communication was made there was an expectation by M that what was to be produced would be confidential is lacking.
[30] In this case, it cannot be said that the Investigative Report originated in a confidence that it would not be disclosed. The non-party spouse, M, hired the defendant in the context of matrimonial proceedings to help her gather information she could use in those proceedings. Even though it was not used in those proceedings, it is reasonable to infer that the Investigative Report was made with the intention to use the information, and therefore share it beyond the relationship.
[31] When the Investigative Report was originally made, M may have believed any information gathered by the defendant would not be disclosed to the plaintiff because it could attract litigation privilege in the proceedings. But this does not equate with it being a communication that originated in confidence. The expectation was that it would be selectively confidential, not entirely confidential.
[32] While the analysis could end there, it is true that the Investigative Report was never used in the matrimonial proceedings. Therefore, the remainder of the analysis will proceed on the alternative basis that the Investigative Report was made for M’s personal use and information alone, without an intention to share the information gathered in the report beyond the relationship. In that case, it could be said that the communication originated in confidence because there was an expectation that it would not be disclosed to anyone else.
b) Confidentiality Must be Essential to the Relationship
[33] The second criteria to be met is that the element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties to the communication: Ryan, at para. 25. Framed differently, is confidence essential to the relationship in which the communication arises?
[34] To answer this question, we must define the relationship between the defendant and their client, M, or private investigators and their clients more generally. Clients, be they insurance companies or private individuals, hire private investigators like the defendant to gather information which can aid in fact finding or in testing the truth of a claim. Often the information private investigators are tasked with gathering is highly personal.
[35] In this case, confidentiality is essential to the relationship. Clients hire private investigators to not only gather information that could be useful to them, but to also provide that information only to them. Clients are unlikely to hire a private investigator if they believe the investigator would share the information they gathered with others. The expectation of confidentiality is reinforced by the Code of Conduct which applies to licensed private investigators in Ontario, such as the defendant. According to the regulatory Code, every licensee shall “respect the privacy of others by treating all information received while working as a private investigator or security guard as confidential, except where disclosure is required as part of such work or by law”: see O. Reg. 363/07 – Code of Conduct, s. 2(1)(h) under Private Security and Investigative Services Act.
[36] Therefore, confidentiality is an essential feature of the relationship between private investigators and their clients, and the second Wigmore criteria is met.
c) The Relationship is One the Community Believes Ought to Be Sedulously Fostered
[37] With respect to the third requirement, the consideration is whether the relationship is one that should be “sedulously fostered” in the public good: Ryan, at para. 20.
[38] This criterion is about the relationship itself and not about the content of the relevant communication: R. v. Parent (2014), 301 C.R.R. (2d) 14, (C.S.Q.), at para. 14. To consider whether the relationship between private investigators and their clients is one that should be fostered in the public good, it is helpful to look at other relationships where this criterion has been met.
[39] In Parent, Bourque J. found that the relationship between academic researchers and their secret sources is one that ought to be sedulously fostered.
[40] In that case, the relationship involved academic researchers who had interviewed vulnerable sex workers on the promise that their identities would remain confidential. The court found that academic research which relied on these types of relationships, was valuable because it expanded knowledge and helped “understand and improve the social condition of vulnerable and marginalized communities”: Parent, at para. 130.
[41] In Ryan, McLachlin J., (as she then was) easily concluded that the relationship between a psychiatrist and their client provides a public good, noting at para. 27: “The mental health of a citizenry, no less than its physical health is a public good of great importance.”
[42] In R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 64, the Supreme Court of Canada found the relationship between professional journalists and their secret sources is one that ought to be fostered, noting that the role of confidential sources is closely aligned with freedom of the press:
[43] In Cadillac Fairview Corporation Limited v. Standard Parkin of Canada Ltd. et al. (2003), 50 C.P.C. (5th) 72 (Ont. S.C.), Master Dash found that the relationship between a corporate whistleblower and the recipient of information, in this case a corporate victim of fraud, ought to be sedulously fostered. The court stated it “should sedulously foster an environment which encourages corporate whistle blowers to bring to light serious criminal activity taking place in their workplace”: at para. 28.
[44] Counsel for the defendant submits that the relationship between private investigators and their clients ought to be sedulously fostered because private investigators are a key component of the justice system. Their services help uncover possible fraud and obtain information that is not readily available to parties in a litigation.
[45] I confess to having initially been persuaded by Ms. Antoniuk’s very able arguments. The relationship between a private investigator and their clients is relatively unique because the service they provide, and the information they keep confidential, is about someone or something outside that relationship. Often, like the case here, it involves obtaining highly personal information about someone else. This is different than say the relationship of a doctor or a psychiatrist and their patient, where the confidentiality of the relationship allows patients to share highly personal information about themselves.
[46] Perhaps the closest analogous relationship from the cases set out above is the corporate whistleblower. In that situation the whistleblower is sharing information about a third party, the alleged wrong-doer. Similarly, private investigators are gathering and sharing information about a third party, namely whoever they have been asked to investigate.
[47] However, the value of maintaining the confidentiality between corporate whistleblowers and the receivers of information flows from the purpose for which whistleblowers share information. As set out in Cadillac Fairview, the purpose is to bring to light criminal activity. This is a valuable public good. Can the same be said for private investigators?
[48] The private investigator-client relationship may be useful in that investigators provide their clients with information that may be more difficult to find otherwise. It may also be useful to the court process for the same reason.
[49] I note that in National Post, Binnie J. introduced some flexibility in the application of the third Wigmore criteria. At para. 57 he stated:
The third criterion (that the source-journalist relationship is one that should be “sedulously fostered” in the public good) introduces some flexibility in the court’s evaluation of different sources and different types of “journalists”. The relationship between the source and a blogger might be weighed differently than in the case of a professional journalist like Mr. McIntosh, who is subject to much greater institutional accountability within his or her own news organization. These distinctions need not be canvassed in detail here since the appellants have made out on their evidence, in my opinion, that in general the relationship between professional journalists and their secret sources is a relationship that ought to be “sedulously” fostered...
[50] While not always the case, the value of the private investigator-client relationship is often based on the gathering of highly personal information about someone else, sometimes by invasive means. But, I do not think it rises to the level of providing a public good in the same way as the relationships recognized in the case law. Without this, it cannot be said that the community has an interest in maintaining the confidentiality of the relationship.
[51] I leave it for another day as to whether a proper evidential foundation can be established to address this segment of the test. Based on the lack of evidence in this case, specific or generally related to the industry at large, I find that this cannot form the basis for the conclusion that the relationship is one that ought to be sedulously fostered in the public good. Therefore, the third criteria of the Wigmore test is not met.
[52] While the analysis could end at this step, I will continue to the fourth criteria of the Wigmore test based on the alternative basis that all of the above criteria have been met and that “a compelling prima facie case for protection has been established”: Ryan, at para. 37.
d) Preserving the Confidence Must Outweigh the Correct Disposal of the Litigation
[53] The fourth criteria to be met is that the “interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation”: Ryan, at para. 33. The court must balance the potential injury of disclosure with the relevance and value of the communication to the litigation.
[54] As described in Ryan, at para. 37:
A document relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case.
[55] The first step is an assessment of the interests served by protecting the communications from disclosure. These interests include: injury to the ongoing relationship; the effect that a finding of no privilege would have on this relationship more generally; the privacy interest of the person claiming privilege; and inequalities which may be perpetuated in the absence of protection: Ryan, at para. 29.
[56] The defendant submits that ordering the production of the Investigative Report would set a dangerous precedent as it would permit any person who was the subject of surveillance to commence litigation to acquire that surveillance. Further, in oral argument, defendant’s counsel argued that such an order would negatively affect the interests of the entire private investigator industry.
[57] Conversely, defendant’s counsel argued that the plaintiff’s interest in the Investigative Report was minimal; this litigation is merely a fishing expedition to gain access to the surveillance. Further, the plaintiff can continue the litigation without the Investigative Report by making inquiries in examination for discovery.
[58] Most significantly, the defendant submits that such a production order in this case would set a negative precedent for the entire industry. Moreover, production may also be in violation of the relevant legislation and regulations governing the industry.
[59] On the other side of the equation, the plaintiff responds that production of the Investigative Report would not be harmful to the non-party spouse because there she has no ongoing relationship with the defendant. The plaintiff submits the Investigative Report is the essence of the claim. The plaintiff submits he would not be able to advance his case with evidence from examination alone. The plaintiff would not have the best evidence of what occurred on the relevant dates and he would have to accept any testimony from the defendant at face value because he would have limited ability to impeach.
[60] As mentioned, in this case, there are facts that do not assist the defendant. Beginning with M’s interests in the report, I do not find that production of the Investigative Report would injure the relationship between the defendant and M as they do not have an ongoing relationship. As to the confidence issue, when communicating with defendant’s counsel, M stated that she opposes any disclosure of surveillance. In fact the sum of the evidence on this point is found in M’s November 14, 2018 email to Chet Wydrzynski, counsel for the defendant:
I retained Bay City Investigations in 2014. The scope of the investigation and my instructions to the investigator is extremely personal and private. Any disclosure of materials may disclose elements of the investigation, which are personal to me and should not be made privy to any other person. Any photographs or investigative report that came about as a result of that investigation, which I paid for, are mine personally. I wasn’t even provided any photographs or written report. To order that any information from the investigation I paid for privately be provided to my ex-husband would be most inappropriate, may result in disclosure of information that should not be disclosed to him, and to which I am vehemently opposed.
[61] However, even with this Court affording an opportunity to provide further and complete evidence on this point, the defendant has brought no direct evidence from M of the injury she may suffer if the report and videotape surveillance were disclosed. Moreover, her concerns fall well short of sustaining or addressing the nature of any privilege or confidence claimed on her behalf by the defendant.
[62] Further, M’s privacy interests in the Investigative Report is less compelling than other interests recognized in the case law. Unlike a patient’s privacy interest in their conversations with a psychiatrist, or a research subject’s interest in remaining anonymous when sharing personal information with a researcher, M is not claiming a privacy interest in personal information about herself. The surveillance is about the defendant or other parties. Unlike an informant’s interest in protecting their identity for fear of retribution, the defendant has not shown any consequences M might face if the Investigative Report and surveillance video are disclosed.
[63] Turning to the impact of disclosure on the private investigator-client relationship more generally, it is reasonable to conclude that clients may be less inclined to hire private investigators if they are not certain the fruits of that investigation would remain confidential. The interests served by protecting the confidentiality of these investigations is clients’ and the community’s interest in the gathering of relevant information to aid fact finding or testing the truth of a claim.
[64] That being said, in this case, the extent of injury to the private investigator industry is unknown. The defendant has not provided any evidence from individual private investigators, clients, or investigation firms regarding the impact this order may have. While this analysis is based on “common sense and good judgment”, the lack of direct evidence from the industry makes it difficult to ground a finding that there is a high interest in confidentiality at stake: Ryan, at para. 32.
[65] I agree with the plaintiff’s position that the full disposition of their tort case would be hampered if they had to rely on evidence from examination of the defendant’s employees alone. The Investigative Report would likely provide relevant information about how the surveillance was conducted which would help prove or disprove the plaintiff’s claims. Proper and focussed questions can be posed in discovery. As such, it is relevant to the proper disposal of the litigation.
[66] While the plaintiff’s interest in the Investigative Report may be less compelling than other parties’ interest in disclosure recognized by the case law, such as criminal investigations, there is an interest in the correct disposal of the tort claims. In my view, the benefit gained for the correct disposal of the litigation outweighs any injury to the interests served by protecting the Report from disclosure, either to the defendant’s relationship with M or to the private investigator-client relationship generally. I am persuaded that the defendant has failed to establish the fourth criteria of the Wigmore test.
Conclusion
[67] The plaintiff’s motion for production is granted.
[68] The defendant has not established that the Investigative Report is protected from disclosure by either litigation privilege or a common law privilege. As such, a copy of the surveillance videotape and Investigative Report shall be produced to the plaintiff forthwith.
[69] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These cost memoranda shall not exceed five pages in length, (not including any bill of costs or offers to settle). The plaintiff shall file his costs submissions within 15 days of the date of this endorsement. The defendant shall file its costs submissions within 15 days of the receipt of the plaintiff’s materials. The plaintiff may file a brief reply within five days thereafter. If submissions are not received by March 15, 2019, the file will be closed and the issue of costs considered settled.
A.J. Goodman J.
Dated: February 8, 2019
[^1]: (See J.H. Wigmore, Evidence in Trials at Common Law, 3d ed. Rev. by J.T. McNaughton, vol. 8 (Boston: Little, Brown, 1961) s. 2192)