Court File and Parties

COURT FILE NO.: CV-19-617141 MOTION HEARD: 2021-03-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marsella, Plaintiff -AND- Business Development Bank of Canada, Defendant

BEFORE: Master Abrams

COUNSEL: R.C. Taylor/K. Golobic, for the plaintiff J. Devereux, for the defendant

REASONS FOR DECISION

[1] The plaintiff seeks production of unredacted copies of certain documents listed in Schedule “A” of BDBC’s affidavit of documents; and, BDBC asks that those documents be impressed with court-ordered confidentiality terms.

[2] A party seeking to avoid disclosure of information in a document must establish that the information it seeks to withhold is “both clearly irrelevant and that there is good reason not to disclose it” (Beiko v. Stone, 2019 ONSC 1703, at para. 33). “…[A] party seeking [disclosure] must meet a very low threshold of relevance[^1]” (Beiko v. Stone, supra, at para. 36).

[3] “The whole [emphasis added] 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 interests deserving of protection” (McGee v. London Life Insurance Co., 2010 ONSC 1408, at para. 9). The plaintiff fairly points out that BDBC has failed to adduce evidence to demonstrate that any of its redactions is sufficiently confidential or sensitive in nature that disclosure would result in significant harm or prejudice to BDBC and any non-parties named or otherwise identified in the redactions. The mere potential for embarrassment or reputational damage does not in itself constitute evidence of irreparable harm; indeed, evidence of potential harm must be “clear and not speculative” (B. (A.) v. Stubbs, 1999 CanLII 14801 (ON SC), 1999 CarswellOnt 1936, at paras. 22 and 24).

[3] BDBC has admitted the relevance[^2] of the redacted documents by listing them in Schedule “A” to its affidavit of documents. The documents here at issue were created during an internal investigation in respect of a client file at the branch of BDBC where the plaintiff was a manager. The investigation led to the plaintiff’s for-cause dismissal. The plaintiff posits (and I accept) that, by redacting portions of its productions, BDBC is (unfairly) depriving her of the opportunity to examine on the redactions and, if and as may be appropriate, rely upon them at trial.

[4] And while it is true that the names of certain persons not parties to the litigation are contained in the redacted portions of the documents (the documents having now been reviewed by the court and by counsel for the plaintiff), I agree with Mr. Taylor when, relying on Murchison v. Export Development Canada, 2016 ONSC 3084, at para. 22, he says that “[t]he truth seeking function of the justice system frequently requires production of confidential information even information about parties who are not themselves litigants”. Then too, it cannot here be said that the plaintiff’s allegations are so narrowly pled that the redacted information is clearly not relevant, as BDBC suggests. By way of illustration, Mr. Taylor submits that issues of (a) differential treatment of the plaintiff v. others in BDBC’s employ, (b) the role of others in the context giving rise to the plaintiff’s dismissal, and (c) the contribution of others in respect of the acts and/or omissions for which the plaintiff has been made to bear responsibility are all at play in the litigation.

[5] Further, while PIPEDA (on which BDBC relies) does apply to BDBC and limits the disclosure of information as BDBC argues, s. 7(3) permits disclosure without knowledge or consent “to comply with rules of court relating to the production of records”, inter alia. Here the information at issue is not sensitive account data/financial information.

[6] Plaintiff’s counsel also argues that, even if the information that has been redacted could be said to be capable of “caus[ing] harm”, any such harm is speculative; and, as discussed above, it cannot be said that the information now redacted would “serve no legitimate purpose in resolving the issues” (North American Trust Co. v. Mercer International Inc., 1999 CanLII 4550 (BC SC), [1999] B.C.J. No. 2107 (B.C.S.C.), at para. 13). Then too, and as the plaintiff submits, the redacted information is not of the kind delineated in McGee v. London Life Insurance Co., 2010 ONSC 1408 or Jones v. I.F. Propco 2018 ONSC 23, to which the plaintiff referred the court.

[7] The plaintiff further says that, irrespective of all, a confidentiality order is not necessary in this case, for a few reasons. First, as referenced above, there is no evidence of real potential harm (Friends of Landsdowne v. Ottawa, 2011 ONSC 2089, at para. 22). Second, and as plaintiff’s counsel posits, BDBC’s interests will be protected by the common law implied undertaking and the deemed undertaking rule. But, in addition, counsel for the plaintiff has given an undertaking that, if the plaintiff or her lawyers intend (1) to rely in court upon (a) the information in the documents now redacted, or (b) any portions of the transcript of the discoveries that contain information now redacted from those documents, or (2) to file any document with the court that references the information now redacted, notice will first be given to BDBC and to any persons identified in or to whom the redactions relate, so that they might make argument as to terms of disclosure or a sealing Order. I accept that this undertaking should be sufficient to address any residual concerns that BDBC may have.

[8] I note parenthetically that the plaintiff has essentially agreed to the confidentiality terms suggested by BDBC save that she declines to share the use to which she intends to put the documents in preparing for trial. Counsel for the plaintiff says, and I agree, that to require of the plaintiff that she be required to “seek BDBC’s permission” as to the documents’ use when, on his own behalf and on behalf of the plaintiff, he has acknowledged the plaintiff’s deemed/implied undertaking obligations, is to give BDBC unnecessary and unduly liberal access to the plaintiff’s trial preparation strategy.

[9] And while it is true, as BDBC posits, that the plaintiff herself failed to identify the non-parties whose names have been redacted in her statement of defence, the undertaking now given by her/on her behalf is in keeping with the approach taken by the plaintiff in pleading. The names of those persons will not find their way in the public record without notice and an opportunity for them and BDBC to make comment.

[10] For all of these reasons, the relief sought by the plaintiff is granted. Failing agreement on the issue of costs, I may be spoken to.

May 6, 2021 Original Signed by Master Abrams

[^1]: Information is relevant if it “might reasonably…directly or indirectly…advance [a party’s] case or damage the case of [the party’s] adversary”: Beiko v. Stone, supra, at para. 36

[^2]: On the issue of relevance of the information redacted, see too: paragraph 4.