Court File and Parties

Court File No.: CV-16-556511 Date: 2021-01-11 Superior Court of Justice – Ontario

Re: SINOPOLI v. GENERAL MOTORS COMPANY, GENERAL MOTORS OF CANADA COMPANY, GENERAL MOTORS LLC, TARIQ MAHOOD, operating as M AND J USED AUTO SALES and M AND J USED AUTO SALES INC.

Before: S.F. Dunphy J.

Counsel: J. John Vettese, for the Plaintiff Robert L. Love and Laura M. Day, for the Defendant General Motors LLC Tariq Mahood o/a M and J Used Auto Sales and M and J Used Auto Sales Inc., Self-represented

Heard at Toronto (in writing): January 11, 2021

Reasons for Decision

[1] The defendant General Motors LLC is moving for a complex protective order prior to having actually produced an affidavit of documents or reviewed its own relevant documents. The plaintiff consented to the proposed order in January 2020 but the self-represented co-defendant has not responded to GM’s motion although the materials for the motion were mailed to the last known address of this defendant. The motion was brought in writing. The claim against General Motors Company was discontinued.

[2] The plaintiff alleges that he owned a vehicle designed and sold by GM that was involved in an accident in August 2014 caused by a manufacturing defect. It is alleged that a defective ignition switch caused the steering wheel to lock while driving on the highway, resulting in an accident. The plaintiff is alleged to have acquired the used vehicle in question from the individual co-defendant Mahood who has not responded to requests for his consent to this motion.

[3] The proposed Protective Order runs to twelve pages including three pages of defined terms and two attached agreements that persons reviewing produced documents would be required to sign before seeing any of them. The proposed terms may be summarized – at a VERY high level – as follows:

a. The order applies to all documents “and other information, designated by GM as confidential and proprietary produced by GM formally or informally in response to discovery requests;

b. GM is entitled to designate documents as Confidential or Highly Confidential in bulk “without a detailed review” subject to the right of the receiving party to challenge the designation;

c. “Information” is divided into “Confidential” and “Highly Confidential”, the designation of which is made by GM in its own discretion if it reasonably believes the information meets the criteria contained in the relevant definition;

d. GM may apply the designations Confidential or Highly Confidential to discovery transcripts within thirty days of the receipt of the transcript and “clawback” previously produced documents where it neglected to claim confidentiality;

e. GM is entitled to redact documents including to remove privileged information;

f. “Confidential Information” may only be disclosed to the parties, their lawyers, court officials, court reporters, deponents during their examination or experts – the latter only upon their prior agreement to be bound by the order unless with the agreement of GM;

g. “Highly Confidential Information” may only be disclosed to counsel or to court reporters or other support staff after they have agreed to be bound by the order in the terms of the certificate attached unless GM approves in advance in writing – this exclusion also applies to the parties themselves;

h. Subsequently added parties will be required to sign a joinder agreement;

i. All information will be returned to GM at the conclusion of the litigation including court exhibits; and

j. Confidential Information and Highly Confidential Information shall not form part of the record unless consented to by GM.

[4] The moving party GM relies on the decision of Master Glustein as he then was in Eisses v. CPL Systems Canada Inc., 2008 CanLII 1946 (ON SC). In Eisses, Master Glustein distilled nine factors from the jurisprudence to be considered prior to the issuance of a protective order as follows (at para. 5):

(i) The presumption is that parties ought to have access to the other side’s productions. Consequently, the burden of demonstrating that the court ought to deviate from such a presumption rests upon the person who would deny the exercise of that right (Dodd v. Cossar, [1998] O.J. No. 335 (Gen. Div.) at paras. 2, 4).

(ii) Accordingly, a confidentiality order is exceptional in nature (Homelife Realty Services Inc. v. Homelife Properties Inc., [2002] O.J. No. 1482 (Mast.) (“Homelife”) at para. 3).

(iii) However, the court has inherent jurisdiction, as well as jurisdiction under section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, and Rule 30.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to grant an order restricting the production of documents in circumstances where unlimited production will prejudice a party (BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1999] O.J. No. 515 (Mast.) (“BASF”) at para. 15).

(iv) An order restricting the access to and use of documents in a proceeding may be made if a party would risk serious financial harm should the information be available to a competitor. The making of such an order is designed to strike a balance between the disclosure necessary for the conduct of an action and a party’s bona fide right to protection of confidential and sensitive information (BASF, at para. 16).

(v) To be entitled to a restrictive order the moving party must show that the risk of harm is real and substantial. Speculation is not sufficient. An adequate factual basis must be provided (Allerex Laboratory Ltd. v. Dey Laboratories L.P., [2002] O.J. No. 3168 (Mast.) at para. 15; Homelife, at para. 22).

(vi) If the court is satisfied that the information is confidential, that it is commercially sensitive, and that a competitor could obtain an unfair advantage through its release, the moving party will be prima facie entitled to a protective order unless the responding party would be unduly prejudiced by such an order (BASF, at para. 17).

(vii) Where the information at issue is such that disclosure would allow a competitor to improve its competitive position, it is appropriate that a protective order be issued to guard against such effect (BASF, at para. 16).

(viii) Where the information that is at issue is such that it would allow a competitor to improve its competitive position, it is not enough to suggest that the parties are protected by the deemed undertaking rule, because this rule would not prevent the use of the information by a competitor so long as it does not use the information to commence a new lawsuit, but simply seeks to improve its competitive position (Zellers Inc. v. Venta Investments Ltd., 1998 CarswellOnt 2175 (Gen. Div.) at para. 16).

(ix) Further, the deemed undertaking rule does not apply to evidence filed in court or referred to in the hearing. Also, the rule only applies to parties, their counsel and experts, but not to third parties that would have access to material filed with the court (BASF, at para. 20).

[5] In my view, the foregoing represents an appropriate and reasonable template to be followed in deciding whether and to what degree this Court’s discretion to issue a protective order ought to be exercised. To this list I would add the following additional considerations:

a. The “open court” principle is a “cornerstone of the common law” and is a principle not of convenience but of necessity: Vancouver Sun (Re), 2004 SCC 43 at para. 24;

b. It follows from this that departures from this principle should be undertaken only in clear cases and to the minimum extent necessary after an appropriate balancing of interests;

c. Overbroad and blanket orders are to be avoided, particularly where applied to hypothetical situations as opposed to actual documents and actual circumstances.

[6] The moving party relies upon the affidavit of Antonio Antonucci to establish the necessity of the protective order sought. Mr. Antonucci’s affidavit makes reference to only two specific documents but provides no particulars of either. The affidavit contains no discussion of what confidential information is actually contained in them or the basis for any feared harm arising from their disclosure. Rather, the affidavit makes sweeping generalizations about the moving party’s general expectations of confidentiality and the potential for competitive advantage to be gained by others generally without tying any of the litigants to the suggested harm.

[7] The affidavit contains no discussion of why the existing framework of protections contained in Rule 30.1 of the Rules of Civil Procedure are inadequate to protect the interests of the moving party and in respect of which documents or categories of documents and why. This lacuna is particularly significant given that none of the parties likely to be impacted by the proposed order is a competitor of GM who may be considered to have the ability directly to exploit confidential information received by them in the discovery process. It cannot simply be assumed that any parties to this case will violate the obligations already imposed upon them by Rule 30.1 of the Rules of Civil Procedure or that these protections are necessarily inadequate.

[8] In lieu of providing information identifying particular harm associated with the disclosure to the opposite party of particular documents or identified categories of documents, the affidavit provides only boilerplate and summary descriptions of harm that can only be described as speculative.

[9] In my view, this application is premature and the proposed order is over-broad in scope.

[10] It is premature because it is brought in advance of any documents – save the two noted in Mr. Antonucci’s affidavit – being identified and reviewed both for relevance and for potential harm associated with their disclosure. The choice – and this needs underlining – is not between iron-clad confidentiality versus publication on the internet for all to see. All documents produced in discovery and evidence obtained during an examination for discovery are subject to the deemed undertaking rule in Rule 30.1.01(3) of the Rules of Civil Procedure.

[11] It is also hugely over-broad in scope.

[12] By way of example, substantially every piece of litigation undertaken in this province involves the production of documents at least some of which may contain “documents or information protected by federal provincial or foreign data protection laws or other privacy obligations” including “personal email addresses or other contact information of …Board members and employees”. Somehow, our system has managed to function without the aid of such sweeping and complex protective orders as the one sought here. Actual personal information is seldom relevant to litigation and where it is common-sense protective orders are readily sought to balance the interests arising.

[13] The proposed order is not limited to a discrete, identified sub-set of documents. Rather, it appears likely to apply to all or substantially all of the documents GM intends to produce. Sealing orders are not sought in bulk and in advance nor are they granted without time limit absent exceptional circumstances. The discretion to grant such orders vests with the court and is not delegated sight unseen to a litigant. A co-defendant (Mr. Mahood) is currently self-represented and would potentially be precluded from seeing any documents that GM decides to characterize as Highly Confidential.

[14] I am dismissing this application without prejudice to the moving party bringing a more targeted application after it has produced its affidavit of documents. A “more targeted application” is one that addresses particular documents or identified categories of actual documents that have been reviewed and whose characteristics – and the need for each additional confidentiality protection – is addressed specifically. I expect that any such application will address precisely what protections are required over and above those already provided by the Rules of Civil Procedure and why. I further expect such an application to be tailored to the circumstances of this case, including the parties thereto (none of whom are competitors of the moving party) and the particular harm that can reasonably be anticipated to befall an actual person in relation to an actual document or identified group of documents or item of information without the additional protections sought. A more targeted application will also be one that contains a draft order that is specific, limited to only those terms that are demonstrably necessary and written in language that is direct and unambiguous.

[15] Any re-formulated application shall include a copy of these reasons.

S.F. Dunphy J.

Date: January 11, 2021