COURT FILE NO.: CV-14-497479-00CP

DATE: 20221116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER SCOTT HARRIS

Plaintiff

• and -

BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.

Defendants

Kathryn Podrebarac and Flora Yu for the Plaintiff

Peter Pliszka, Kimberly E. Potter, Chad Pilkington, and Tina Cody for the Defendants

Proceeding under the Class Proceedings Act, 1992

HEARD: October 25, 2022

Contents

A. Introduction. 2

B. Procedural Background. 5

C. Evidentiary Background: Foreign Law.. 14

D. Meta-Litigation Distemper 15

E. Affidavits of Documents under the Rules of Civil Procedure. 21

F. The Evidence of Dr. Hartung and Dr. Piltz. 28

G. BMW-AG’s Argument 30

H. Mr. Harris’s Argument 31

I. Analysis and Discussion. 31

J. Conclusion. 34

Schedule “A”. 35

1. Decision of Justice Belobaba – Production Motion. 35

2. Decision of Justice Ducharme – Stay Motion. 35

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] Pursuant to the Class Proceedings Act, 1992,[^1] the Plaintiff, Peter Scott Harris, sues Bayerische Motoren Werke Aktiengesellschaft (“BMW-AG”), a German corporation, and BMW Canada Inc., a Canadian corporation (collectively “BMW”). Since 2000, BMW-AG has manufactured vehicles under the “MINI Cooper” brand, and BMW-Canada has distributed the vehicles to authorized retailers in Canada. Mr. Harris’s action is on behalf of all persons or entities in Canada who are or were owners or lessees of certain of the MINI Cooper vehicles. Mr. Harris alleges that the vehicles had two safety risks arising from a defective power steering system: (a) a dangerous loss of power steering; or (b) a car fire. His action has been certified as a class action.[^2] The action is now in its pre-common issue discovery stage, and although documentary production has gotten underway, the parties cannot settle on a Discovery Plan. Indeed, there are many conflicts between the parties about the Discovery Plan, most particularly about the manner of production of documents emanating from BMW-AG, the Germany defendant. In an obstinate “my way-or-the-highway”-way, the parties disagree about the manner of producing documents in an Ontario class action where one of the litigants is subject to “foreign privacy law” about releasing personal data.

[2] BMW-AG is incorporated under the laws of the Federal Republic of Germany. As a corporation resident and carrying on business in Germany, it is subject to the European Union’s General Data Protection Regulation[^3] (sometimes referred to as the “GDPR”) and by Germany’s Federal Data Protection Act, [^4] which collectively, I shall refer to as “the foreign privacy law”.[^5] Subject to certain qualifications or exceptions, the foreign privacy law directs that personal data (information about a person’s identity) be redacted from documents disclosed and produced for litigation, and then these laws direct a process be undertaken if there is a justified need to un-redact the personal data. This two-step approach to the disclosure of personal data is described as the “layered approach.” There are serious penalties and consequences for breaches of the foreign privacy law, although it appears that these penalties and consequences have rarely, if ever, been invoked by German regulators or courts with respect to proceedings in another jurisdiction, which may reflect either blissful ignorance of the foreign privacy law or a more co-operative approach between the combatants than seen so far in the immediate case in Ontario.

[3] In the immediate case, Mr. Harris, is not prepared to accept the layered approach. Mr. Harris submits that documentary production should be in accordance with Ontario’s Rules of Civil Procedure[^6] without any adjustment for comity with the foreign privacy law. Equally adamant that the layered approach of the foreign privacy law should be followed, BMW brings a motion to resolve the procedural headbutting. BMW’s motion is brought in anticipation of Mr. Harris’s more comprehensive motion to settle the Discovery Plan in its entirety, which motion is scheduled for early next year. For the motion now before the court, BMW seeks a declaratory order that BMW-AG, shall produce its documentary productions in this action in accordance with the “layered approach”, as described in the expert report of Dr. Jürgen Hartung, and that such production shall be deemed to comply with the Rules of Civil Procedure.

[4] Mr. Harris’s response to BMW’s motion is that the motion should be dismissed. Relying on the expert evidence of Dr. Carlo Piltz, Mr. Harris submits that compliance with the foreign privacy law is already ingrained or accommodated, or “baked-in” so to speak, by the relevancy provisions of the Rules of Civil Procedure and that the layered approach need not be manifested by the declaration being sought by BMW.

[5] For the reasons that follow, I dismiss or grant, it’s hard to tell which one it is, BMW’s motion on terms that BMW-AG comply with a modified rule 30.03 and Form 30B of the Rules of Civil Procedure, as set out below. More precisely, I order BMW-AG to refile forthwith its affidavit of documents and its documents for the Discovery Plan motion in accordance with the modified rule 30.03 and Form 30B as described below. The result will be that on a document-by-document basis, and under oath in accordance with the Rules of Civil Procedure, BMW-AG will disclose and produce the documents relevant to any issue in the action with redactions for privileged information and for personal data that is not relevant to any issue in the action.

[6] Rule 30.03 and Form 30B are set out below. The modifications have been underlined, and as will become apparent, the modifications are feasible, modest, and they achieve comity with the foreign privacy law and its layered approach.

Affidavit of Documents

Party to Serve Affidavit

30.03 (1) A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.

Contents

(2) The affidavit shall list and describe, in separate schedules, all documents relevant to any matter in issue in the action,

(a) that are in the party’s possession, control or power and that the party does not object to producing;

(b) that are or were in the party’s possession, control or power and for which the party claims privilege, and the grounds for the claim; and

(c) that were formerly in the party’s possession, control or power, but are no longer in the party’s possession, control or power, whether or not privilege is claimed for them, together with a statement of when and how the party lost possession or control of or power over them and their present location.

(3) The affidavit shall also contain a statement that the party has never had in the party’s possession, control or power any document relevant to any matter in issue in the action other than those listed in the affidavit.

Redactions for Privilege and Personal Data

(3.1) In subrule (3.1) “personal data” includes any information that would directly or indirectly identify an individual including the person’s name, address, email address, phone number, employment, profession, family, friends, associates, memberships, race, ethnic origin, sexual orientation, political ideology, religion, creed, and health status.

(3.2) A party may redact from any document relevant to any matter in issue in the action,

(a) any privileged information; and

(b) any personal data that is not relevant to any issue in the action.

Lawyer's Certificate

(4) Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained to the deponent,

(a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action; and

(b) what kinds of documents are likely to be relevant to the allegations made in the pleadings.

Affidavit not to be Filed

(5) An affidavit of documents shall not be filed without leave of the court and unless it is relevant to an issue on a pending motion or at trial.

FORM 30B

AFFIDAVIT OF DOCUMENTS (CORPORATION OR PARTNERSHIP)

(General heading)

AFFIDAVIT OF DOCUMENTS

I, (full name of deponent), of the (City, Town, etc.) of ......................................................... , in the

(County, Regional Municipality, etc.) of ……………………, MAKE OATH AND SAY (or AFFIRM):

1. I am the (state the position held by the deponent in the corporation or partnership) of the plaintiff (or as may be), which is a corporation (or partnership).

2. I have conducted a diligent search of the corporation’s (or partnership’s) records and made appropriate enquiries of others to inform myself in order to make this affidavit. This affidavit discloses, to the full extent of my knowledge, information and belief, all documents relevant to any matter in issue in this action that are or have been in the possession, control or power of the corporation (or partnership).

3. Save for personal data that is not relevant to any issue in the action, I have listed in Schedule A those documents that are in the possession, control or power of the corporation (or partnership) and that it does not object to producing for inspection.

4. I have listed in Schedule B those documents that are or were in the possession, control or power of the corporation (or partnership) and that it objects to producing because it claims they are privileged, and I have stated in Schedule B the grounds for each such claim.

5. Save for personal data that is not relevant to any issue in the action, I have listed in Schedule C those documents that were formerly in the possession, control or power of the corporation (or partnership) but are no longer in its possession, control or power and I have stated in Schedule C when and how it lost possession or control of or power over them and their present location.

6. The corporation (or partnership) has never had in its possession, control or power any documents relevant to any matter in issue in this action other than those listed in Schedules A, B and C.

LAWYER’S CERTIFICATE

I CERTIFY that I have explained to the deponent,

(a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action;

(b) what kinds of documents are likely to be relevant to the allegations made in the pleadings; and

(c) if the action is brought under the simplified procedure, the necessity of providing the list required under rule 76.03.

Schedule A

Save for personal data that is not relevant to any issue in the action, Documents in the corporation’s (or partnership’s) possession, control or power that it does not object to producing for inspection. (Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it.)

Schedule B

Documents that are or were in the corporation’s (or partnership’s) possession, control or power that it objects to producing on the grounds of privilege. (Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it. State the grounds for claiming privilege for each document.)

Schedule C

Documents that were formerly in the corporation’s (or partnership’s) possession, control or power but are no longer in its possession, control or power. (Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it. State when and how possession or control of or power over each document was lost, and give the present location of each document.)

B. Procedural Background

[7] The procedural background to this motion is described below. The procedural background is lengthy and detailed because: (a) BMW’s motion and Mr. Harris’s Discovery Plan motion, which is to follow on January 5, 2023, must be understood in the context of the whole history of the action; (b) the parties’ arguments about the foreign privacy law must be understood in the context of the procedure for a class action in Ontario; (c) I must address Mr. Harris’s argument that BMW-AG is deliberately obstructing and delaying the action, which argument I foreshadow to say is not made out; and (d) I must cure this case-managed action of a serious case of Meta-Litigation Distemper.

[8] On January 30, 2014, Mr. Harris (along with then co-plaintiffs John Tkach and Dylan Milmine) commenced a proposed class action against BMW by notice of action. The action is on behalf of all persons or entities in Canada who are or were owners or lessees of certain MINI Cooper vehicles. Mr. Harris alleges that the vehicles contain defective power steering components, which can cause loss of power steering, and/or a car fire. The class definition is as follows:

All persons or entities in Canada who are or were owners or lessees of: (i) a 2002, 2003, 2004, 2005 or 2006 model year MINI Cooper or MINI Cooper S; or (ii) a 2005, 2006, 2007 or 2008 model year MINI Cooper Convertible or MINI Cooper S Convertible, (collectively, the "Class Cars"), and their estates, executors, successors or assigns.

[9] On February 28, 2014, the Statement of Claim was filed.

[10] On July 4, 2014, the Defendants filed a Statement of Defence.

[11] Mr. Harris did not file a Reply and the action languished for four-and-a-half years until the summer of 2018.

[12] On August 29, 2018, Mr. Harris delivered a Fresh as Amended Statement of Claim.

[13] On December 4, 2018, Mr. Harris delivered his Motion Record for Certification.

[14] On June 6, 2019, the Defendants served a Responding Motion Record for the certification motion. That record included a Fresh as Amended Statement of Defence.

[15] Mr. Harris did not deliver a Reply to the Fresh as Amended Statement of Defence. Instead, on June 26, 2019, he served a Request to Inspect Documents.

[16] In the summer of 2019, Mr. Harris delivered a Supplementary Motion Record for the certification motion.

[17] On August 23, 2019, BMW delivered a Supplementary Responding Motion Record.

[18] On October 10, 2019, by way of a preliminary motion in the certification motion, BMW brought a motion to strike out certain paragraphs from an affidavit delivered by Mr. Harris in support of the certification motion. I granted the motion.[^7] I concluded that the evidence proffered by Mr. Harris was inadmissible hearsay for the certification motion and even if admissible, the probative value of the evidence was far exceeded by its prejudicial effect.

[19] Also on October 10, 2019, pursuant to rule 30.04 (2) of the Rules of Civil Procedure, Mr. Harris brought a motion for the production of certain documents referred to in BMW’s Fresh as Amended Statement of Defence. I dismissed the motion.[^8] I concluded that Mr. Harris’s request was not a proper request, and it was not a necessary request in order for him to plead nor a request properly made in furtherance of his certification motion.

[20] On November 27, 2019, Mr. Harris delivered an Amended Motion Record.

[21] On January 13, 2020, Mr. Harris delivered an Amended Supplementary Motion Record.

[22] On February 21, 2020, BMW delivered an Undertakings Brief.

[23] Over six years after the commencement of the action, the certification motion was argued on March 4, 5, and 6, 2020.

[24] On April 2, 2020, I certified the action as a class action.[^9] The certified common issues are:

1. Were the Class Cars designed and manufactured by Bayerische Motoren Werke Aktiengesellschaft (BMW-AG) with one or more design or manufacturing defects that can cause the loss of power steering assist, engine component melting or smouldering, and/or a vehicle fire (a Defect)?

2. If the answer to Common Issue #1 is yes, is any such Defect dangerous and/or does any such Defect render the Class Cars unfit for their intended purpose?

3. If the answer to Common Issue #2 is yes, when did the Defendants know or ought they to have known of the dangerous Defect(s)?

4. Did BMW-AG owe a duty of care to the Class Members with respect to the design, manufacturing, and/or testing of the Class Cars?

5. If so, did BMW-AG breach the standard of care owed to Class Members in respect of the design, manufacturing, and/or testing of the Class Cars?

6. Did BMW-Canada, Inc. (BMW-Canada) owe a duty of care to the Class Members with respect to the distribution of the Class Cars?

7. If so, did BMW-Canada breach the standard of care owed to the Class Members by distributing the Class Cars containing a dangerous Defect?

8. Did the Defendants, or either one thereof, owe a duty of care to (i) warn the Class Members of the dangerous Defect(s), and/or (ii) to recall and repair the Class Cars?

9. If so, did either or both of the Defendants breach the relevant standard of care by failing to warn the Class Members of the dangerous Defect(s), and/or (ii) failing to recall and repair the Class Cars?

10. Can the Class Members assert a claim for pure economic loss, including the cost of repairs to the Class Cars, and diminution in value of the Class Cars?

11. If the answer to Common Issue #10 is yes, what is the cost to repair the Defect(s)?

12. Can the Class Members elect to waive the tort and seek disgorgement of the profits earned by the Defendants on the Class Cars? If so, what is the amount of such profit?

13. Does the conduct of the Defendants, or either one thereof, warrant an award of punitive damages? If so, in what amount?

[25] Pausing in the narrative of the procedural background, it should be noted that this class action is just about money and does not have the urgency of an action where the Class Members are suffering from personal injuries or in need of care. The class action is an action for pure economic losses in tort for the repair of the vehicles, punitive damages, and disgorgement for waiver of tort, which remedy, in light of the Supreme Court of Canada’s decision in Atlantic Lottery Corp. Inc. v. Babstock,[^10] alas for Mr. Harris, is not as readily available as he might hope. Thus, his claim for punitive damages, which is at the centre of this motion about the disclosure and production of documents, has considerable importance to him. Thus, it it should be noted that Class Counsel fervently submits that redacting personal information in BMW-AG’s productions would imperil Mr. Harris’s and the Class Members’ ability to prove questions 3 and 13 of the certified common issues. In support of his claim for punitive damages, in his Statement of Claim, Mr. Harris pleads, among other things:

66. For several years the defendants have known of the danger to human life and property posed by the defect. Yet, in breach of their statutory and common law duties, the defendants failed to issue an adequate warning or to recall the Class Cars due to their overarching concern that proper disclosure and a recall would damage the reputation of their brand and negatively affect worldwide sales and BMW-AG’s share price.

67. As part of an ongoing pattern of conduct described further below, the defendants concealed from safety authorities worldwide their knowledge and information about reports of power steering failures and fires arising from the defects, acquired directly and indirectly, from their subsidiaries, affiliates, and authorized dealers worldwide and/or failed to report the defects in a timely manner.

[26] Returning to the narrative of the procedural background, on July 11, 2020, Class Counsel wrote to BMW’s Counsel regarding BMW’s document collection process and about Mr. Harris’s expectations regarding documentary production and disclosure. BMW’s Counsel did not reply to this correspondence.

[27] On August 7, 2020, on a motion in writing, I approved the Notices of Certification and the Plan for distributing notice and administering the opt-out program.[^11]

[28] On November 9, 2020, seven months after the release of the certification decision, Class Counsel delivered a draft Discovery Plan.

[29] On August 27, 2021, after 15 follow-up requests, BMW’s Counsel delivered its responses to the draft Discovery Plan, but BMW’s Counsel did not address the matter of the applicability of the foreign privacy law to BMW-AG’s disclosure obligations.

[30] On October 14, 2021, at a meeting between the parties to discuss the draft Discovery Plan, BMW’s Counsel did not have their clients’ final position on the application of the foreign privacy law.

[31] In September and October 2021, BMW-AG began to collect relevant documents for the class action. It created a database of potentially relevant documents. It sent the documents in unredacted form to OpenText, a third-party service provider in Germany.

[32] During the autumn of 2021, OpenText, in conjunction with BMW’s Counsel in Canada, Fasken Martineau DuMoulin, reviewed the database electronically to narrow the documents down to non-privileged documents that were relevant and required to be produced in BMW-AG’s Affidavit of Documents. OpenText reviewed the documents and redacted the documents for personal data through the artificial intelligence of computer searches. The artificial intelligence reports were reviewed by multiple reviewers, i.e., by human intelligence.

[33] On October 28, 2021, BMW advised Class Counsel that it would be producing and disclosing documents pursuant to Germany’s Federal Data Protection Act and Germany’s Telecommunications Act,[^12] i.e., BMW-AG advised Class Counsel that it would produce its documents with redactions of personal data pursuant to the foreign privacy law.

[34] On November 17, 2021, Mr. Harris advised the Defendants that their proposed revisions to the Discovery Plan did not address his concerns. Mr. Harris rejected the revisions as unacceptable. Mr. Harris indicated that he would bring a motion to settle the Discovery Plan.

[35] On December 6, 2021, Mr. Harris served his motion to settle the Discovery Plan. The Motion Record was amended by Notice of Motion dated May 19, 2022. Mr. Harris’s Motion Record for the motion to settle the Discovery Plan comprised eight volumes (3,119 pages). The motion was supported by:

a. the affidavit dated June 3, 2019 of Gordon Farrish. Mr. Farrish is the Senior Safety and Environmental Compliance Manager at BMW-Canada. [This affidavit was from the certification motion.]

b. the affidavit dated May 18, 2022 of Pamela Peters. Ms. Peters is a law clerk at Waddell Phillips Professional Corporation, co-Class Counsel.

c. the affidavit dated April 26, 2022 of Dr. Carlo Piltz. Dr. Piltz of Berlin Germany is a lawyer and partner of the law firm Piltz Rechtsanwälte PartGmbB in Berlin, Germany. He has a PhD in law from the University of Göttingen, Germany. He is a specialist in the field of data protection, with a special focus on international data transfers and IT security law. Dr. Piltz is on the editorial board of the legal journal Privacy in Germany and since December 2019, he has been the editor-in-chief of the legal journal Datenschutz-Berater (“Data Protection Advisor”). In addition to being a lawyer, Dr. Piltz is a Certified Data Protection Officer (TÜV®) and a Certified Information Privacy Professional/Europe (CIPP/E). He was retained by Mr. Harris as an expert witness with respect to relevant matters of foreign privacy law.

d. the affidavits dated December 6, 2021, April 26, 2022, May 18, 2022, May 20, 2022, and August 2, 2022 of Tina Yang. Ms. Yang is a lawyer at Waddell Phillips Professional Corporation, co-Class Counsel.

[36] On December 15, 2021. BMW retained Dr. Jürgen Hartung to provide an opinion about the application of the European Union’s General Data Protection Regulation and of Germany’s Federal Data Protection Act. Dr. Hartung, who has a PhD in law from the University Tübingen, is an attorney and partner in the Cologne office of Oppenhoff & Partner Rechtsanwälte Steuerbrater mbB, a commercial law firm in Germany. His practice area is information technology and communications. He is a member of the International Association of Privacy Professionals, the ITechLaw Association and the German Association for Data Protection and Data Security.

[37] On January 14, 2022, BMW delivered its Motion Record for its motion seeking a declaratory order that BMW-AG produce its documents in this action in accordance with the “layered approach” described in Dr. Hartung’s affidavit and his expert’s report of the same date. BMW-AG sought a declaration that production in accordance with the layered approach shall be deemed to comply with the Rules of Civil Procedure.

[38] Also on January 14, 2022, BMW delivered its Responding Motion Record to Mr. Harris’s Discovery Plan Motion. The motion record contained the affidavit of Kimberly E. Potter dated January 14, 2022. Ms. Potter is a partner of Fasken Martineau DuMoulin LLP, Counsel for BMW.

[39] On January 18, 2022, there was a case management conference at Mr. Harris’s request. After the conference, by File Direction, I directed the Defendants to deliver their Affidavits of Documents by March 31, 2022, with redactions from BMW-AG as may be advised. The direction provided that whether any redactions were acceptable was a matter to be determined on a motion scheduled for August 10, 2022. That motion was eventually rescheduled for the motion now before the court.

[40] Pausing here in the narrative of the procedural background, it is worth noting that it is pursuant to my direction that documentary discovery get underway before the Discovery Plan was settled.

[41] In April 2022, BMW delivered to Class Counsel a database of 15,838 documents with redactions of personal data purportedly in compliance with the European Union’s General Data Protection Regulation and with Germany’s Federal Data Protection Act.

[42] Pausing here in the narrative – and this is a significant circumstance to keep in mind for the analysis later in this decision - in making the redactions of personal data, BMW-AG did not make a determination one way or the other whether the redacted personal information was relevant. Its position was that under the layered approach, the assessment that would allow the personal information to be unredacted; i.e. disclosed and produced was the second step of the layered approach. For the initial iteration of the affidavit of documents and for the initial production of the 15,838 documents, BMW-AG did not do a “case-by-case,” document-by-document assessment of the impact on the data subject (the human whose personal information was being disclosed) of disclosing personal data.

[43] On May 7, 2022, BMW-AG delivered an Affidavit of Documents from its senior in-house litigation counsel, Daniel Wortmann of Munich, Germany. The documents were redacted for personal data. In his affidavit of documents, Mr. Wortmann deposed that:

4. BMW-AG retained OpenText Corporation (“OpenText”), an information management and e-discovery service provider, to provide e-discovery services with respect to the production of its records in this proceeding.

5. OpenText, in conjunction with BMW-AG’s external counsel, reviewed BMW-AG’s records for relevance and privilege.

6. Based upon the review conducted by OpenText and BMW-AG’s external counsel, BMW-AG produced the documents listed in Schedule “A” herein to the plaintiff on April 4, 2022, together with a privilege log which forms the basis of Schedule “B” herein.

7. This Affidavit discloses, to the full extent of my knowledge, information and belief, all documents relevant to any matter in issue in this action that are or have been in the possession, control or power of the corporation.

8. BMW-AG has listed in Schedule “A” those documents that are in the possession, control or power of the corporation and that it does not object to producing for inspection, and has produced.

[44] On May 7, 2022, BMW-Canada delivered its Affidavit of Documents from Gordon Farrish of Brampton, Ontario, the Senior Manager, Authority and Vehicle Regulatory Affairs. This affidavit of documents does not contain redactions, and it includes some documents that were in BMW-AG’s affidavit of documents with redactions.

[45] On May 9, 2022, there was a case management conference, but nothing was resolved, and I made no File Direction.

[46] On May 26, 2022, BMW’s Counsel advised Class Counsel that through error, the database for the production of documents included fields with personal data of certain German citizens that should have been redacted from the documents produced to Class Counsel. The unredacted data was also contained in Mr. Wortmann’s Affidavit of Documents. BMW’s Counsel requested Class Counsel to redact this data from previously delivered motion records and immediately to cease reviewing or copying any of BMW’s productions.

[47] On June 7, 2022, BMW Counsel’s advised that they had learned on June 3, 2022 that not only the personal data of German citizens must be redacted from the documents in the possession of BMW-AG, but the personal data of others must be redacted regardless of the data subjects’ nationality. BMW’s Counsel requested further redactions from the material in Class Counsel’s possession and it advised of further redactions to be made to BMW-AG’s productions.

[48] On a temporary basis to keep matters moving, Mr. Harris agreed to proceed as requested by BMW’s Counsel without prejudice to his position that all redactions are improper and that all affidavits and all motion records should be filed in unredacted form.

[49] On June 10, 2022, BMW delivered a Reply Motion Record comprised of:

a. Affidavit dated June 1, 2022 from Dr. Hartung responding to Dr. Piltz’ opinion.

b. Affidavit dated June 10, 2022 from Anthony Benevides. Mr. Benevides is the Manager of E-Discovery Services at Fasken Martineau DuMoulin LLP, BMW’s Counsel in this action.

[50] On June 21, 2022, there was a case management conference. At this conference, I cancelled the motion scheduled for August 10, 2022. I directed the parties to meet and confer about a new approach to resolve their disputes about the Discovery Plan.

[51] On July 6, 2022, there was a case management conference. I made the following File Direction, which summarized the events of 2022:

2. The Plaintiffs have brought a motion to settle a discovery plan. The Defendants have brought what is in effect a cross-motion to determine the manner of documentary discovery in accordance with certain privacy restrictions imposed by German law.

3. On January 18, 2022, I set a timetable that would have resolved the motions by August 10, 2022.

4. After January 18, 2022, the parties began the process of delivering affidavits of documents and preparing for the August motion.

5. Then, matters became procedurally clogged. A series of case management conferences followed on May 9, 2022, June 21, 2022, and today, July 6, 2022 to address the exacerbating blockage.

6. The procedural constipation was a result of:

a. motion creep, because both parties kept changing their requests for relief in their competing motions;

b. delays, discrepancies, and difficulties in affidavit of documents’ documentary production, which delays, discrepancies, and difficulties were associated, amongst other things, with the motion creep and the Defendants’ changing plans about how to proceed within the privacy restrictions imposed by German law;

c. problems about whether a temporary or permanent confidentiality order was needed; and,

d. a problem about some inadvertent disclosure of documents in a form that may have contravened the German privacy legislation.

7. At the case management conference on June 21, 2022, it was painfully obvious that the original August deadline for the competing motions was not going to happen. I cancelled that date.

8. At the June 21, 2022, case management conference, I suggested to the parties that they meet and confer about either: (a) a new timetable for both motions, i.e., an omnibus motion; or (b) a new timetable to resolve the Defendants’ motion first.

9. At the June 21, 2022 case management conference, the parties agreed to hold October 25, 2022 for the hearing of the omnibus motion or the defendant’s motion.

10. The parties did meet and conferred. However, they did not agree.

11. The Plaintiff wishes to proceed by an omnibus motion, and the Plaintiff suggested the following timetable: […]

12. The Defendants wish to proceed by having their motion heard first. They submit that the hearing of their motion will likely greatly reduce the disputed issues about the competing discovery plans of the parties.

13. The Defendants proposed the following timetable for their motion: […]

14. At the case conference today, I discussed with the parties whether the omnibus motion could be completed in one day (the scheduled October 25, 2022). I also discussed an alternative approach, which I described as a bifurcated motion.

15. The idea of a bifurcated motion would be that:(a) October 25, 2022 would be utilized to resolve the Defendants’ original motion (i.e., without the motion creep), then (b) I would release Reasons for Decision and then (c) there would be another round of factums; and then (d) the bifurcated motion would be completed on January 5, 2023.

16. After hearing from the parties, I reserved my decision. In the meantime, the parties agreed to hold October 25 and 26, 2022 for the omnibus motion and October 25, 2022 and January 5, 2023 for the bifurcated motion.

17. And, in the meantime, the parties were directed to proceed on a timetable that would involve the completion of the evidentiary record for both the omnibus motion and the bifurcated motion.

18. Having reviewed the parties’ materials submitted for the several case management conference and having given the matter some thought, I have decided that the bifurcated motion approach is the way to proceed.

19. I, therefore set the following timetable for the bifurcated motion: […]

20. Phase 1 is to address the Defendants’ request for relief as set out in its original motion record (before the motion creep); i.e., Phase 1 is with respect to;

“a declaratory order that the defendant, BMW-AG, shall produce its documentary productions in this action in accordance with the “layered approach”, as described in the expert report of Dr. Jürgen Hartung, and that such production shall be deemed to comply with the Rules of Civil Procedure.”

[52] On August 10 and 17, 2022, Mr. Farrish was cross-examined.

[53] On August 11, 2022. Mr. Wortmann was cross-examined.

[54] On August 30, 2022, Mr. Benevides delivered answers to his written cross-examination.

[55] On August 31, 2022, Dr. Piltz was cross-examined.

[56] On September 1, 2022, Dr. Hartung was cross-examined.

[57] On October 18, 2022, there was a case management conference. A dispute about the pending motions was on the agenda for the conference. A few pages of a document referred to by Dr. Piltz in his report had been translated by a translator retained by BMW’s Counsel and BMW planned to use the translation on its motion about the foreign privacy law. At the case management conference, I made the following File Direction:

1. This is a case management conference in this action that has been certified under the Class Proceedings Act, 1992, S.O. 1992, c.6.

2. The current situation is that the parties are in the midst of a dispute about settling the Discovery Plan. This dispute has been complicated by a cross-motion to determine the manner of documentary discovery in accordance with certain privacy restrictions imposed by German law.

3. A dispute has arisen about the translation into English of a document written in German. The document is referred to in one of the Plaintiff’s expert’s reports, but the parties cannot or may not agree about the English translation.

4. The current dispute is at the technical level about how the evidence should be proffered since the Plaintiffs have not yet seen the translation proposed by the Defendants.

5. I cannot resolve this dispute at a case management conference. I grant the Defendants leave to bring a motion to resolve this issue at the return of the motion now scheduled for October 25, 2022, where, if necessary, it can be dealt with as a preliminary matter. I grant leave to the Plaintiffs to file responding material.

6. This direction is without prejudice to whatever position the Plaintiffs may take about the admissibility of the English translation or about whether the motion needs to be adjourned for further evidence from the Plaintiff.

[58] On October 18, 2022, BMW delivered a Notice of Motion (preliminary motion) with respect to the translation of document that was to be referred to at the hearing of BMW’s motion. This motion was supported by an affidavit dated October 18, 2022 of Gary Michael Hofhine of Salt Lake City, State of Utah, U.S.A. Mr. Hofhine is a translator with TransPerfect Legal Solutions. He provided a translation of Section 1.1 (“Data transmission to the USA for purposes of a judicial proceeding”) on pages 70-71 of Tätigkeitsbericht der Datenschutzaufsichtsbehörde für den nicht-öffentlichen Bereich 2009/2010.

[59] On October 25, 2022, BMW’s motion came on for a hearing along with its motion about the translation. At the hearing of the motion, Mr. Harris filed a responding motion record comprised of:

a. Another affidavit from Ms. Yang, this one dated October 24, 2022; and

b. Affidavit dated October 24, 2022 from Vera Draack of Kiel, Germany. Ms. Draack is a professionally accredited German translator. She is certified by the Association of Translators and Interpreters of Ontario (ATIO No. 2315) and an accredited member of Bundesverband der Dolmetscher and Ubersetzer ev. (BDU), the Federal Association of Interpreters and Translators.

[60] At the hearing of the motion, I learned that the difference in the translations amounted to the following:

Hofhine Translation

Draack Translation

In a civil lawsuit before an American court, a German company was asked by way of a discovery motion [Beweisantrag] brought by the plaintiff - an American competitor company - to transmit certain business documents located in Germany to the court and to the parties to the lawsuit and their litigation counsel in the U.S.

Upon request for evidence by the plaintiff, an American competitor, in a civil action before an American Court, a German company was ordered to provide the Court as well as the parties involved and their lawyers in the USA with certain business records located in Germany.

[61] At the hearing of the motion, I admitted the evidence of the translator Mr. Hofhine and I admitted the evidence of the translator Ms. Draack.

[62] After hearing argument, I reserved judgment.

C. Evidentiary Background: Foreign Law

[63] As noted above, Dr. Hartung, for BMW-AG, and Dr. Piltz, for the Plaintiff, opined as to the content, meaning, and application of the European Union’s General Data Protection Regulation and of Germany’s Federal Data Protection Act. The content of foreign law is treated as an issue of fact that is proved by expert evidence.[^13] A judge may not independently research the substance of foreign law and must rather determine its content based on evidence, typically expert evidence.[^14]

[64] However, if the evidence of the expert witnesses conflicts as to the effect of foreign law, the court may examine the sources itself and where the expert witness puts in materials as part of his or her evidence, the court is entitled to examine these materials, and where there is conflicting evidence as to the interpretation to be placed upon the materials, the court must scrutinize them and form its own conclusion on them.[^15] When the experts on foreign law differ, the court is obliged to apply its own mind, fortified by the opinion of the witnesses and giving what weight it thinks ought to be given to it, to make up its mind on the question of foreign law and resolve the difference.[^16]

[65] The court is entitled to examine the authorities upon which the experts rely.[^17] The court is free to critically assess the materials put before the court through the parties’ expert witnesses to determine which expert’s opinions accord with those supporting materials and with common sense.[^18] Furthermore, while foreign law is formally a question of fact to be proven through admissible opinion evidence, such opinions are largely in the nature of legal argument; accordingly, the court may properly apply principles of legal reasoning to resolve a dispute between the opinions of competing experts.[^19]

D. Meta-Litigation Distemper

[66] I diagnose this motion as suffering from a serious case of Meta-Litigation Distemper. The much ado about nothing dust-up about the translation of the document referred to in Dr. Piltz’s report is a minor example of common sense gone missing. Meta-Litigation Distemper is an affliction of civil litigation where the parties turn from fairly litigating the merits of their respective cases to bitterly litigating about the litigation itself. To mix metaphors from medicine to transit, Meta-Litigation Distemper is sidetracked litigation that derails the litigation itself. The dispute between Mr. Harris and BMW is now in a phase of deleterious meta-litigation, unproductive litigation about the litigation, and the impatience, anger and cynicism of the lawyers has blinded them to the reality that this is needless meta-litigation. Before discussing the merits of BMW’s motion for a declaration about the foreign privacy law, it is, therefore, necessary to address this problem and get this litigation back on track.

[67] In the immediate case, I do not remotely suggest that there has been a breach of professional conduct. In the immediate case, I intend no rebuke of Class Counsel or BMW’s Counsel, because I appreciate a lawyer’s obligations and aspirations to diligently and loyally provide services for his or her client in an adversarial system of dispute resolution. In the immediate case, both sides are represented by experienced and accomplished lawyers, and I accept that all counsel are diligently pursuing what they believe is necessary in this case; however, I do suggest that counsel have forgotten the “Three C’s,” which I shall discuss below.

[68] I begin the treatment for Meta-Litigation Distemper by reminding the parties and their lawyers about rules 1.04 (1), 1.04 (1.1) and Rule 29.2 which state:

INTERPRETATION

General Principle

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and the complexity of the issues, and to the amount involved in the proceeding.

RULE 29.2 PROPORTIONALITY IN DISCOVERY

Definition

29.2.01 In this Rule,

“document” has the same meaning as in clause 30.01 (1) (a). O. Reg. 438/08, s. 25.

Application

29.2.02 This Rule applies to any determination by the court under any of the following Rules as to whether a party or other person must answer a question or produce a document:

1. Rule 30 (Discovery of Documents).

2. Rule 31 (Examination for Discovery).

3. Rule 34 (Procedure on Oral Examinations).

4. Rule 35 (Examination for Discovery by Written Questions).

Considerations General

29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25.

Overall Volume of Documents

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[69] The next dose of procedural medicine is to note what Justice D.M. Brown of the Ontario Court of Appeal said in Falcon Lumber Ltd. v. 2480375 Ontario Inc. (c.o.b. GN Mouldings and Doors),[^20] discussed further below. Justice Brown mentions the recent calls of the Supreme Court of Canada to alter the Canadian litigation culture. Justice Brown stated at paragraphs 54 – 55 of the Court’s decision:

54. Parties who default on their documentary disclosure and production obligations impede the ability of our civil justice system to provide the fair, timely, and cost-effective adjudication of civil disputes on their merits. Their defaulting conduct promotes the culture of complacency towards delay decried by the Supreme Court, in the context of the criminal justice system, in R. v. Jordan, 2016 SCC 27 at para. 40. As well, such conduct undermines on-going efforts to shift the Canadian civil litigation culture in the direction of providing more accessible justice to the public. As the Supreme Court pointed out in Hryniak v. Mauldin, 2014 SCC 7, at para. 27, the "developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted." (emphasis added) In Hryniak, the Supreme Court called for a civil justice system that not only provides a fair process that results in the just adjudication of disputes, but also is "accessible -- proportionate, timely and affordable," for without an accessible process, a fair process is illusory: at para. 28.

55. Hryniak requires judges to actively manage the civil legal process in line with the principle of proportionality: at para. 32. Orders to strike out pleadings are one means by which to ensure that the civil justice process delivers justice that is proportionate, timely, and affordable. Accordingly, when considering whether to strike out a party's pleading by reason of its failure to comply with its documentary disclosure and production obligations, in addition to the factors set out in paras. 50 to 54 above, a court should consider:

• the extent to which the defaulting party's conduct has increased the non-defaulting party's costs of litigating the action, including the proportionality of those increased costs to the amount actually in dispute in the proceeding; and

• to what extent the defaulting party's failure to comply with its obligation to make automatic disclosure and production of documents has delayed the final adjudication of the case on its merits, taking into account the simplicity (or complexity) of the claim and the amount of money in dispute.

[70] I continue the treatment for Meta-Litigation Distemper by noting Rule 5.1-1 of the Law Society of Ontario’s Rules of Professional Conduct, which provides some guidance about how the lawyers should approach the adversarial system. The Rule states:

5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary

[1] Role in Adversarial Proceedings - In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

[71] The fourth part of the treatment is to quote Shakespeare:

And do as adversaries do in law –

Strive mightily, but eat and drink as friends [The Taming of the Shrew, I, 2 (1593-94)]

[72] The fifth part of the treatment is to quote Lord Denning:

“[The advocate] has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. . . . He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline:” Lord Denning, Rondel v. Worsley, [1966] 3 W.L.R. 950 (C.A.) at pp. 962-63.

[73] The sixth part of the treatment for Meta-Litigation Distemper is to discuss the so-called “Three-Cs,” which were introduced in 1955 by a Commercial Court Practice Direction.[^21] The Practice Direction stated “Co-operation, communication and common sense will continue to be the watchwords of the Commercial List.”[^22] I would add that communication involves not just speaking and listening, it involves thinking and understanding and finding meaning in each other’s communications without necessarily agreeing with their position.

[74] In 937950 Ontario Inc. (c.o.b. Bertton and Associates) v. 1054754 Ontario Ltd.,[^23] which concerned discovery obligations, Master MacLeod, as he then was, stated:

I was troubled by [the] assertion before me that it is permissible to be obstructionist on examinations within limits. I recognize that he is not alone in this view, but I do not accept it. The purpose of examinations and disclosure are to ensure that both parties have full opportunity to know what evidence is available and to properly prepare for the hearing or trial. They are also designed to narrow issues and to determine what is truly in issue. At the end of the day, counsel must remember that they are officers of the Court. The Court process is intended to elicit truth and not suppress it. The Court expects examinations to be conducted in accordance with the Rules. Mr. Justice Farley has gone further. In Renegade Capital Corp. v. Hees International Bancorp Inc. [1995] O.J. No. 3648 (Gen. Div.), he called upon counsel to observe the "three C's (communication, cooperation and commonsense) ... [and] ... the collegial courtesy which should be the watchword of the legal profession."

[75] On this motion, no doubt with good intentions for their respective clients, there is a failure or at least a reluctance by the lawyers to follow the Three C’s. There is a failure to treat an opponent with the dignity and respect that a party is entitled in “civil” litigation notwithstanding that he, she or it is an adversary. There is a failure to treat the adversary as one would expect to be treated oneself in a fair contest. (“Do as you would be did by”, as my late father told me.) In the case at bar, Counsel make needless attacks on the competence of their opponent’s expert witnesses. In the case at bar, Counsel sought to win points just for the sale of winning, when the point was collateral, disproportionate, or worse, irrelevant. In the immediate case, there have been needless, irrelevant, and/or unsubstantiated attacks on the motives and integrity of the adversary. Worst of all in the immediate case, there is a failure to recognize that the positions of the adversaries are not that far apart; there is a failure to co-operate or compromise or find a solution that is fair to both sides; there is a failure in common sense.

[76] In the immediate case, one instance of Meta-Litigation Distemper concerns a lawyer’s professional and ethical obligations to informing a court of any binding authority directly on point on an issue in the case. In the immediate case, Class Counsel accused Ms. Potter of deliberately refraining from informing the court of Justice Belobaba’s unreported decision in Kalra v. Mercedes Benz Canada Inc., Daimler AG et al (September 16, 2019), and the unreported decision of a Justice Ducharme, a single judge of the Divisional Court on an unsuccessful stay motion, heard on November 19, 2019. These unreported decisions, which I have appended as Schedule “A” to this decision are the only precedents considering the foreign privacy law from Germany that is the subject matter of the motion now before the court.

[77] Class Counsel’s accusation of professional misconduct was unproven, unwarranted, and intemperate. I say this for four reasons.

[78] First, Ms. Potter denied the accusation, and I believe her.

[79] Second, albeit the precedents were disclosed the day before the argument of the motion and albeit her factum indicated that the case at bar had no precedential case law, the precedents alleged to have been withheld were presented to the court during BMW’s argument. During argument, both parties said as much as could be said about Justice Belobaba’s terse endorsement and Justice Ducharme’s equally terse endorsement, which was just about the law associated with RJR-MacDonald Inc. v. Canada (Attorney General) [^24] and said nothing substantive about the foreign privacy law. Nothing was intentionally hidden from the court, and Class Counsel ought to have let the late disclosure of the case law go by unmentioned.

[80] Third, in any event, had the precedents not been disclosed, the court would not have been ill-informed. Justice Belobaba’s decision, which seems sound to me, is nevertheless distinguishable and, in any event, the decision is not an exposition on either the foreign privacy law or on the Rules of Civil Procedure that must be examined for the immediate case and Justice Ducharme’s decision was about the totally different topic of whether a stay of Justice Belobaba’s decision pending appeal was warranted. (The leave to appeal motion was dismissed two weeks later.)

[81] Fourth, mountains should not be made out of molehills, kettles should not call pots black, and people who live in glass houses should not throw stones. In a point that I shall return to in the next part of these Reasons for Decision, insofar as providing the court with case law precedents, neither party apparently thought it would be helpful to turn from disparaging each other’s expert witness about German law to turn to providing some Ontario law outside of the context of the open court principle about how the Rules of Civil Procedure approach the issue of the disclosure and production of documents with redactions to protect privacy, confidentiality, and privilege.

[82] Thus, in the immediate case, Ms. Potter should not have been accused of unprofessional conduct by her adversary. No professionalism foul was committed. If a foul was committed, it was not a deliberate intention to deceive the court or to hide a binding decision; there was nothing in Justice Belobaba’s decision that was binding on me. And, if a professionalism foul was committed, it occasioned no harm. And neither party did an exemplary job in presenting relevant legal research, which of course is a matter for counsel not experts in foreign law.

[83] In the immediate case, a second instance of Meta-Litigation Distemper was Class Counsel’s besmirching and impugning BMW’s good faith and its purposes for bringing this motion. In the introduction to Mr. Harris’s factum, Class Counsel argues:

In reality, this motion – and the defendants’ defence of this action – is about concealment. BMW-AG does not want the plaintiff to be able to discover, track and prove his case through authentic unredacted documents. Moreover, it does not want Class members, this Court, and the public (including regulators around the world) to know what BMW-AG and its global distributors knew about the number and extent of fires in Class Cars, the magnitude of reported defective power steering issues, its undisclosed additional changes to the power steering pump, a recommended “hidden service campaign” in the US because the supplier delivered bad quality fans for a nine-month period after the February 9, 2005 cut-off date, resulting in a high failure rate of the power steering system and acknowledged breakdown risk, or how BMW-AG silenced those who wanted to report to their local regulator. If proven through these documents, BMW-AG and its distributors risk being exposed to further civil liability, punitive damages, regulatory action, fines, and potentially additional criminal proceedings (such as those it has recently faced in South Korea) for concealing its knowledge of the risk of fires in certain BMW vehicles.

The defendants’ resistance to this action being tried on its merits has been apparent from the outset. Now, at the discovery phase, BMW-AG continues to frustrate the plaintiff’s discovery rights through inordinate and inexcusable delays and by taking this position on data protection, which is unprecedented in Canada. It took BMW-AG about 12 months from the time the plaintiff delivered his draft discovery plan to finally settle on this legal position, based on a working paper (WP 158) published 13 years earlier. In phase two of these bifurcated motions, this court will consider yet further aspects of BMW-AG’s “delay and conceal” playbook.

[84] BMW’s response to this scandalous allegation is found in its Reply Factum as follows:

There is a legitimate, legal disagreement between the parties about how to reconcile BMW-AG’s obligations under the General Data Protection Regulation (EU) 2016/79 (the “GDPR”) and German Federal Data Protection Act (“BDSG”) with BMW-AG’s discovery obligations under Ontario law. As set out in BMW-AG’s moving factum, both parties’ experts largely agree on the analysis that is required under the GDPR and BDGS, but they disagree on the outcome of that analysis in this context. There is no merit to the plaintiff’s offensive and irresponsible accusation that BMW-AG is pursuing this motion in bad faith as part of a so-called “‘delay and conceal’ playbook”.

[85] I agree with BMW’s response. I would add five comments to BMW’s response. First, there is malevolent irony in Class Counsel’s imputation of delaying tactics when one recalls that as delay goes, Mr. Harris commenced this action in January 2014 and Class Counsel did not deliver the certification motion for five years, and the action was not certified until 2020 after almost six-and-half years had gone by. That delay is to be attributed to Class Counsel not BMW. Second, even if BMW was proceeding for the nefarious motives imputed to it, BMW was proceeding conspicuously, and it was entitled to ask this court for a direction about the application of the foreign privacy law. In other words, its motives, be they malign, strategic, or tactical, are not relevant to its entitlement to ask the court for directions. Third, the evidence submitted by Class Counsel does not remotely substantiate a nefarious purpose. Fourth, the allegations of reprehensible conduct by BMW remain to be proven. Fifth, as I shall explain in the third example of Meta-Litigation Distemper, Class Counsel hyperbolically overstates the capability of the foreign privacy law to interfere with the court’s ability and the Plaintiff’s ability to discover the truth.

[86] The third instance of Meta-Litigation Distemper concerns Class Counsel’s overly exuberant argument that if the court were to allow BMW-AG to apply the layered approach in the immediate case, it would be “impossible” for Mr. Harris and the Class Members to prove the claim for punitive damages. This argument was infused with the pejorative and unsubstantiated submission that BMW-AG had a “delay and conceal” playbook. To advance this argument, Class Counsel used examples from the redacted documents that had already been disclosed by BMW-AG to submit passionately that without the information to identify the persons who authored the document or who were the audience for the document, it would be impossible for the Class Members to make their claim for punitive damages and BMW-AG would escape civil liability, punitive damages, regulatory action, fines, and criminal proceedings for concealing its knowledge of the risk of fires.

[87] Class Counsel’s impossibility argument was unpersuasive. Class Counsel’s argument convinced me to the contrary view that there was no impossibility, and no particular harm would be occasioned by applying the so-called layered approach. I also agreed with BMW’s argument that the layered approach of the foreign privacy law would not have prevented the production of relevant documents or made it impossible for Mr. Harris to prove his case for punitive damages or any other claim for that matter.

[88] Obviously without making any finding about the case for punitive damages, my impression from Class Counsel’s arguments using redacted documents from this case was that there was nothing getting in the way of Mr. Harris discovering a “MINI Cooper Memo” akin to the infamous “Pinto Memo” should such a damaging document exist. By way of illustration, if would not have mattered much in the infamous Ford Pinto litigation, if there had been a redaction of the names of the authors of the infamous “Pinto Memo.” The memo was a cost-benefit analysis that put a $200,000 price tag on crash fatalities as a way to measuring Ford’s projected cost of settling burn-victim’s lawsuits against the cost of spending $11 per car to fix the fuel tank defect. It was the content of that memo that was probative of Ford’s misconduct and the redaction of the personal data would not have much mattered.

[89] Moreover, the imputation that BMW-AG had a reason to suppress information was unwarranted. It is not a given that BMW-AG is happy with the advice given by its expert, Dr. Hartung, discussed below, that it must follow the layered approach, which would only delay the disclosure of relevant information. It may be that BMW-AG would be eager to disclose the personal data of persons internal and external to its operations who have relevant information that supports BMW’s case or that allows it to know and to meet the case presented by Mr. Harris. I take BMW at its word that it just wants to comply with its legal obligations both here and in Germany.

[90] There have been other examples of Meta-Litigation Distemper throughout this litigation by both Class Counsel and BMW’s Counsel. No purpose would be served by going over those feverish moments. I have addressed the above three instances only because they were focal points in the parties’ positions and their arguments on this motion and I could not avoid dealing with them. I felt obliged to remove the chaff from the wheat. This motion and the Discovery Plan motion to follow are important matters, and I intend to address them on their merits without Meta-Litigation Distemper.

E. Affidavits of Documents under the Rules of Civil Procedure

[91] As noted above, neither party provided this court with sufficient case law about redacting information in affidavits of documents under the Rules of Civil Procedure. Before discussing the merits of BMW’s motion for a declaration about the foreign privacy law, it is necessary to understand what the norms are - the baseline so to speak - of the Rules of Civil Procedure in order to measure the effect, if any, of the layered approach proposed by BMW-AG.

[92] At the outset of this discussion, it must be kept in mind that the dispute in the immediate case is about the disclosure and production of unredacted documents - as between the parties. As the discussion below will reveal, although the principles and policies pertinent to the topic of the open court principle, which stands against redactions in court documents that are used in open court or to be found in an open to the public court record, need to be considered, the immediate motion brought by BMW, strictly speaking, is not about sealing orders or redaction orders, which are exceptions to the open court principle.[^25] The matter of confidentiality orders, sealing orders, and redactions undoubtedly will be on the agenda again for the January 5, 2023 Discovery Plan motion but, strictly speaking, this motion is only about the disclosure and production of documents – as between the parties.

[93] It is worth repeating this point. 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. Unfiled affidavits of documents do not offend the open court principle. Rule 34.18 (4) provides that a copy of a transcript for the use of the court at trial shall not be filed until a party refers to it at trial, and the trial judge may read only the portions to which a party refers. The deemed undertaking of rule 30.1.01 (3) provides that all parties and their lawyers are deemed to undertake not to use evidence or information from documentary discovery, examination for discovery, inspection of property, medical examination and examination for discovery by written questions for any purposes other than those of the proceeding in which the evidence was obtained. The deemed undertaking rule does not offend the open court principle.

[94] The analysis and discussion may get underway by noting: (a) in the immediate case, rule 30.03 (1) requires BMW-AG to serve an affidavit of documents (Form 30B) disclosing to the full extent of BMW-AG’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in BMW-AG’s possession, control or power; and (b) the extraordinarily high value that the Rules of Civil Procedure places on documentary disclosure and production - as between the parties.

[95] In the case of Falcon Lumber Ltd. v. 2480375 Ontario Inc. (c.o.b. GN Mouldings and Doors),[^26] noted above, Justice D.M. Brown stated for the Court of Appeal, in a case where a party’s defence was struck out for failing to honour its disclosure and production obligations, at paragraphs 41-43.

41. At the heart of the rules governing actions in the Superior Court of Justice lie the obligations of every party to an action to disclose every document relevant to any matter in issue in an action that is or has been in its possession, control, or power, whether or not privilege is claimed in respect of a document, and to produce all such documents, unless privilege is claimed in respect of a document: Rules of Civil Procedure, rr. 30.02(1)-(2).

42. Three requirements imposed by the Rules of Civil Procedure emphasize the importance of the obligation to disclose and produce relevant documents to the proper and fair functioning of the civil litigation process:

• First, the obligation to disclose all relevant documents is not limited to documents upon which the party intends to rely to establish its claim or defence. A party must disclose "every document relevant to any matter in issue", whether or not the document helps or hurts the party's case: r. 30.02(1);

• Second, in order to ensure that a party fully understands its obligation to disclose and produce all relevant documents, the party's lawyer must certify in the party's Affidavit of Documents that the lawyer has explained "the necessity of making full disclosure of all documents relevant to any matter in issue in the action" and "what kinds of documents are likely to be relevant to the allegations made in the pleadings": Forms 30A and 30B; rr. 30.03(4) and 76.03(4). Courts expect that a party has received from its counsel legal advice that the documents it must disclose and produce are determined by their relevance to the issues pleaded, not by whether the party regards the document as favourable or harmful to its case. No doubt this advice may rub against the litigation instincts of some parties, who would prefer to "deep-six" relevant documents that might undermine their claims or defences; and

• Third, the obligation to disclose and produce is not a "one-time" obligation. It is a continuing one: Tripp v. Ontario (Ministry of Transportation) (1999), 1999 CanLII 3762 (ON CA), 123 O.A.C. 278 (C.A.), at para. 22 […] Rules of Civil Procedure, r. 30.07.

Taken together, these key rules are designed to ensure that parties make full disclosure of all relevant documents and production of all relevant non-privileged documents well in advance of the examinations for discovery permitted in Superior Court actions or, in the case of newly discovered documents, "forthwith" - i.e. within a few days - after their discovery.

43. The goal of Ontario's civil justice system is to provide the public with the just, most expeditious, and least expensive determination of every civil proceeding on its merits: Rules of Civil Procedure, r. 1.04(1); Rules of the Small Claims Court, r. 1.03(1). To achieve that goal, parties to every action must comply with their document disclosure and production obligations without the need for a court to intervene to compel their adherence. This court has stated, in regard to family law litigation, that a party's fundamental duty to disclose financial information is automatic, immediate, and ongoing, and should not require court orders to obtain production: Roberts v. Roberts, 2015 ONCA 450 at paras. 11 and 13. The same applies to civil actions. The fundamental obligation to disclose relevant documents and produce those that are not privileged should be performed automatically by a party, without the need for court intervention.

[96] Documentary discovery, however, is not unbridled or unlimited or unprincipled. Documentary discovery is informed and constrained by the principles of materiality (matter in issue), relevance (probativeness) and proportionality. Materiality refers to the matters in issue; evidence that does not address any issue arising from the pleadings (a fact in issue) or the credibility of a witness (perception, memory, narration, or sincerity) is immaterial, and the evidence is inadmissible because it is irrelevant.[^27] Relevance is a measure of the probative value of the evidence; evidence that is not logically probative of a fact requiring proof (a fact in issue) is inadmissible; to be probative, the evidence must increase or decrease the probability of the truth of the fact.[^28] The principle of proportionality is defined by rule 29.2.03 (1), which is set out above.

[97] In R v. Seaboyer,[^29] Justice McLachlin, as she then was, discussed the centrality of the notion of relevance to the administration of justice; she stated:

It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues. This goal is reflected in the basic tenet of relevance which underlies all our rules of evidence: see Morris v. The Queen, [1983] 2 S.C.R. 670. In general, nothing is to be received which is not logically probative of some matter required to be proved and everything which is probative should be received, unless its exclusion can be justified on some other ground.

[98] In the immediate case, BMW-AG’s deponent, Daniel Wortmann, has sworn on behalf of BMW-AG, that it has disclosed the relevant documents. BMW-AG has disclosed almost 16,000 professed to be relevant documents. The bitter problem in the immediate case is that in accordance with the layered approach of the foreign privacy law, BMW-AG has redacted the so-called personal data that would identify the identities of the authors, audience, and persons mentioned in the documents. Mr. Harris objects to any redactions now or later pursuant to the so-called layered approach.

[99] In so far as disclosure and production of documents just between the parties is concerned, the Rules of Civil Procedure do not provide for redactions. Some information about privileged documents is provided in a schedule to the affidavit of documents, but the privileged documents are not disclosed or produced. The rules do not explicitly address the matter of redacting privileged information from a hybrid document that is part relevant, and part privileged. The rules do not explicitly address the matter of redacting irrelevant information from a relevant document. However, in practice – on consent or unopposed – parties will disclose and produce a relevant document with redactions for privileged material and for irrelevant material.

[100] The practice of redacting documents was noticed and accepted by Justice Corbett in the frequently cited case of Guelph (City) v. Super Blue Box Recycling Corp.,[^30] where he held, amongst other things, that “the practice of redacting documents” containing some privileged information does not, itself, give rise to a waiver of privilege. In discussing the accepted practice of redacting hybrid documents for privileged material, at paragraphs 119-122 of his judgment, Justice Corbett stated:

119. The practice of "redacting" documents has been in wide use in commercial litigation in Ontario for at least two decades. […] It is very common for documents that are otherwise producible to contain a portion that deals with receipt of legal advice on the topic at hand. For example, the minutes of a board meeting might contain twelve business items, one of which concerned receipt of legal advice pertaining to litigation. An "all or nothing" approach to disclosure would see the document entirely produced (thus breaching solicitor client privilege in respect to the advice given concerning the litigation), or entirely suppressed (depriving the opposing party with the record of the balance of the document). The proper solution is to produce the portion of the document that is not privileged, delete the portion that is privileged, and show the deletion on the face of the document to alert the opposing party that privileged material has been removed.

120. […] These cases confirm what the courts know to be a matter of general practice today: that in certain cases it is appropriate to redact documents for privilege. This is sound practice which balances the goals of full disclosure and protection of privilege.

[In a footnote, Justice Corbett added:] I decline to extend this statement to redactions on the basis of relevance. Master Polika noted in William Ashley Ltd. v. Manufacturer's Life Property Corp., [1999] O.J. No. 2393 (Master), that the implied undertaking and, in appropriate cases, sealing or other protective orders are available to protect confidential information disclosed in the litigation process. Redactions for privilege will almost always be permissible to protect privilege and foster full disclosure. Redaction for relevance may be subject to other considerations.

122. As was done in this case, where documents have been redacted, the redactions should be included in the list of privileged documents in Schedule "B" of the affidavit of documents. If a party wishes the court to review redactions, to ensure that the redactions are proper, then the process used in this case for review of contested Schedule "B" documents should be observed. Justice Nordheimer has recently described in detail an appropriate process for reviewing redactions, and I agree with his observations entirely: (Mandeville v. Manufacturer's Life Insurance Co. (unreported, November 1, 2004).

[101] As appears from the above passage, Justice Corbett left open the matter of redactions on the basis of relevance. He did not approve redactions of irrelevant material and he did not foreclose it.

[102] The matter of redactions of irrelevant material from relevant material was directly addressed by Justice Strathy, as he then was, in Fairview Donut Inc. v. TDL Group Corp.[^31] It shall be important, or at least interesting, to note that this case was argued on December 22, 2009 and that he released his decision on February 8, 2010.

[103] Fairview Donut Inc. v. TDL Group Corp. was a proposed class action against Tim Hortons, the well-known franchisor, about alleged breaches of its franchise agreements. Tim Hortons moved for a confidentiality or sealing or redaction order restricting public access to certain documents or portions of certain documents, that Tim Hortons sought to produce to the franchisees, who were the putative class members. In other words, Fairview Donut Inc. v. TDL Group Corp., unlike the motion now before the court, was about redactions in the context of the open court principle. The putative Class Members already knew about the information for which Tim Hortons was seeking a confidentiality order. Justice Strathy dismissed Tim Hortons’ motion because he was not satisfied that the interests affected justified interference with the open court principle. In the passage of his judgment that is significant to the matter of redactions as between the parties (paragraphs 60-61), Justice Strathy said that there is no general authority to redact documents appended to affidavits, or portions thereof, on the grounds they were irrelevant; he stated:

Redaction based on Relevance

60. There is no general authority to redact documents appended to affidavits, or portions thereof, on the grounds that they are irrelevant: see Albrecht v. Northwest Protection Services Ltd., [2005] O.J. No. 2149 (S.C.J.); Guelph (City) v. Super Blue Box Recycling Corp. 2004 CanLII 34954 (ON SC), [2004] O.J. No. 4468 (S.C.J.).

61. Requests for redaction frequently come up at the discovery stage and are often resolved on consent. Although the practice of redacting has in some cases been sanctioned by the court, the cases in which it has been permitted are usually ones in which other important interests are affected: see, for example, Kimberly-Clark Corp v. Procter & Gamble Inc. 1990 CanLII 13719 (FC), [1990] F.C.J. No. 451 (T.D.) (patent action); Janhevich v. Thomas (1977), 1977 CanLII 1153 (ON SC), 15 O.R. (2d) 765 (H.C.) (personal tax returns); United States Surgical Corp. v. Downs Surgical Canada Ltd., 1981 CanLII 4727 (FC), [1982] 1 F.C. 733, (patent action); Collins v. Beach, 1988 CanLII 10092 (ON SC), [1988] O.J. No. 43 (H.C.) (personal tax returns); Manufacturers Life Insurance Co. v. Dofasco Inc. [1989] O.J. No. 1456 (H.C.) (confidential and sensitive market information); John Labatt Ltd. v. Molson Breweries (1993), 1993 CanLII 3022 (FC), [1994] 1 F.C. 801 (confidential and sensitive commercial information); North American Trust Co. v. Mercer International Inc. 1999 CanLII 4550 (BC SC), [1999] B.C.J. No. 2107 at paras. 11, 13-16 (S.C.) (commercially sensitive information).

[104] In the immediate case, Class Counsel cited and relied on Fairview Donut Inc. v. TDL Group Corp. in its opposition to the redaction of documents in the affidavit of documents and productions from BMW-AG. However, the Fairview Donut Inc. case is about the open court principle and about confidentiality orders. Thus, Justice Strathy’s decision goes no further than Justice Corbett’s in Guelph (City) v. Super Blue Box Recycling Corp., which Justice Strathy refers to, in resolving the issue of when, apart from when the parties consent or acquiesce, redactions may be made in the affidavits of documents and in the production of documents as between the parties.

[105] The decision that the parties ought to have brought to my attention was Justice Strathy’s decision in McGee v. London Life Insurance Co.,[^32] which was heard on January 29, 2010 with a decision released on March 8, 2010, a month after he had released his decision in the Fairview Donut Inc. case. The McGee case, however, requires a very close and careful reading.

[106] McGee v. London Life Insurance Co. was a certified class action in which the Class Members claimed a pension surplus.[^33] The Class Members brought a motion to compel London Life to produce unredacted copies of documents that had been produced for a cross-examination. The documents had been produced with London Life disclosing only those parts of the documents that London Life considered relevant. The documents were of four categories: (a) minutes of various London Life committees involving pensions; (b) minutes of Board of Directors Meetings and Annual General Meetings of Shareholders; (c) documents related to the pension plan; and (d) materials submitted to the Board of Directors of London Life. The plaintiff and the class members did not take issue with redactions for privilege.

[107] In McGee v. London Life Insurance Co., Justice Strathy ordered that London Life produce for inspection copies of all relevant documents in their unredacted form. He did so because London Life did not identify any aspect of the documents that would give rise to an interest requiring protection, other than the general interest that every company would have in the confidentiality of minutes of board and committee meetings and other corporate records. Nothing had been identified that could be in any way harmful to the commercial interests of London Life or that would cause embarrassment or prejudice to any third party.

[108] For present purposes, the critical portions of Justice Strathy’s decision are paragraphs 8-10 and 13-14, where he stated:

8. It 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. I respectfully agree with the observations of Corbett J. in Albrecht v. Northwest Protections Services Ltd., [2005] O.J. No 2149, (S.C.J.) at para. 11 and Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), [2004] O.J. No. 4468. In the former case Corbett J. observed that there may be some cases where it would be appropriate to redact for relevance, referring to his decision in the latter case, but he declined to make any general observations in the absence of argument on the point. In the latter case he observed that redaction is common in the case of privileged documents and also referred to Bouchard Paradis Inc. v. Markel Insurance Co. of Canada, [2000] O.J. No. 5210, (S.C.J.) where Case Management Master MacLeod had approved redaction of certain information on the basis of relevance where the parties were business competitors. The Master stated, at para. 4, that: "[t]he right to redact information from documents which are otherwise relevant should only be given in circumstances such as these where the parties are business competitors and the information which is not relevant may be sensitive in nature." [emphasis added]

9. 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. I respectfully adopt as applicable in Ontario the statement of Lowry J., as he then was, in North American Trust Co. v. Mercer International Inc., 1999 CanLII 4550 (BC SC), [1999] B.C.J. No. 2107 (S.C.) at para. 13:

Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of a document is producible if a part of it relates to a matter in question. But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues. [emphasis added]

10. Lowry J. referred to a number of authorities, some of which were referred to by London Life in the motion before me, and observed, at para. 11:

In the cases to which I have been referred, litigants have been relieved from disclosing the whole of a document related to a matter in question where, but only where, the part withheld has been clearly not relevant to the issues and, because of its nature, there has been good reason why that part should not be disclosed. With reference to the decisions of this court specifically, good reason is apparent in the private nature of the affairs of a company recorded in the minutes of its directors' meetings, or the personal sensitivity of a person's medical records, diary notations, or familial communications, and much the same can be said where expurgated disclosure of a document has been upheld in the cases cited from other jurisdictions. Statements to the effect that only the relevant parts of a document need be produced, such as in Jervis Court Development Ltd. v. Ricci, [1992] B.C.J. No. 2932 at para. 24 and [K.L.V. v. D.G.R.], [1993] B.C.J. No. 1662] at para. 10, must be read in the context of what was decided. [emphasis added]

13 Irrelevance alone is not a sufficient ground on which to redact portions of a document. The party seeking to do so bears the onus of establishing that redaction is necessary to protect an important interest. Some of the cases referred to by the parties include:

(a) patents or trade secrets: Kimberly-Clark Corp v. Procter & Gamble Inc. 1990 CanLII 13719 (FC), [1990] F.C.J. No. 451 (T.D.); United States Surgical Corp. v. Downs Surgical Canada Ltd., 1981 CanLII 4727 (FC), [1982] 1 F.C. 733 (T.D.);

(b) personal income tax information: Janhevich v. Thomas (1977), 1977 CanLII 1153 (ON SC), 15 O.R. (2d) 765 (H.C.); Collins v. Beach, 1988 CanLII 10092 (ON SC), [1988] O.J. No. 43 (H.C.);

(c) commercially sensitive financial information: Manufacturers Life Insurance Co. v. Dofasco Inc. [1989] O.J. No. 1456 (H.C.); John Labatt Ltd. v. Molson Breweries, 1993 CanLII 3022 (FC), [1994] 1 F.C. 801 (T.D.); North American Trust Co. v. Mercer International Inc., 1999 CanLII 4550 (BC SC), [1999] B.C.J. No. 2107 (S.C.) at paras. 11, 13-16; Bouchard Paradis Inc. v. Markel Insurance Co. of Canada, [2000] O.J. No. 5210;

14. The additional cases referred to by Lowry J. give rise to another possible category:

(d) records of a purely private and personal nature and not relevant to the issues, such as notes between parties: Jervis Court Development Ltd. v. Ricci, [1992] B.C.J. No. 2932 (S.C.) and personal diaries: Lazin v. Ciba-Geigy Canada Ltd., 1976 ALTASCAD 58, [1976] 3 W.W.R. 460 (Alta. C.A.); K.V.L. v. D.G.R., [1993] B.C.J. No. 1662 (S.C.) or irrelevant and sensitive medical information.

[109] Although in the result, Justice Strathy ordered that unredacted documents be produced, a close reading of his decision in McGee v. London Life Insurance Co. reveals that the principle that emerges from the decision is that: It 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, but a redacted version of the document may be produced to the extent it contains information that would cause significant harm to the producing party or would infringe public interests deserving of protection.

[110] It emerges from McGee v. London Life Insurance Co. that litigants may be relieved from disclosing the whole of a document related to a matter in question, but only where the part withheld has been clearly not relevant to the issues and, because of its nature, there has been good reason why that part should not be disclosed. The onus is on the litigant producing a redacted document 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.[^34]

[111] The disclosure or production of redacted documents is not necessarily procedurally unfair or a denial of natural justice because the opposing party has the opportunity to test the propriety of the redactions by a motion for a further and better affidavit of documents or the remedy of examining or cross-examining on the redacted document and bringing a refusals motion if an unredacted version is not produced.[^35] In McGee v. London Life Insurance Co. the propriety of the redactions was tested by the procedure under the rules to test the propriety of claims that a document not be produced because it is privileged.

[112] In Payne v. Windsor (City),[^36] at paragraph 17, Justice Gates explained the McGee v. London Life Insurance Co. case as follows:

17. While it is impermissible for a party to redact portions of a relevant document simply on the assertion that portions of it are not relevant, there are nevertheless circumstances where redaction for relevance would be justified but the party seeking to do so has the onus of establishing that redaction is necessary to protect an important interest.

[113] After McGee v. London Life Insurance Co., there have been cases in which the court has held that a party may disclose and produce documents listed in his or her affidavit of documents with redactions for irrelevant information.[^37]

[114] For present purposes, the above discussion is sufficient to set the baseline for the debate between the parties in the immediate case about whether BMW-AG can utilize the layered approach, which involves a two-step process of delivering redacted documents and then un-redacting some of them.

F. The Evidence of Dr. Hartung and Dr. Piltz

[115] Dr. Hartung opined, and Dr. Piltz did not disagree, that under the foreign privacy law: BMW-AG is a “controller” of “personal data”, and it must comply with the prohibitions, conditions, and restrictions of the foreign privacy law in “processing” data, which includes the disclosure of data in legal proceedings.

[116] The experts agreed that the term “personal data” is broadly defined to include any data relating to an identified or identifiable natural person (referred to as a “data subject”), regardless of how trivial that data may be. Personal data includes any information that would permit the direct or indirect identification of an individual. Personal data includes information such as a person’s name, email address, employee position, employee number and opinions; data about a person’s professional activities; where a person lives or works; and data about a person’s family and friends. Special categories of personal data, with separate, more stringent rules, include data revealing a person’s racial or ethnic origin; sexual orientation; political opinions; religious or philosophical beliefs; trade union membership; genetic data; and health status.

[117] The experts agreed that the foreign privacy law applies to personal data of any person whose data is stored in a company’s records, whether or not that person is an employee. Thus, personal data includes data about persons with whom a company’s employees may have communicated or transacted, such as business partners or suppliers. It was Mr. Harris’s evidence that in the immediate case, the identifiable natural persons (the data subjects) would include persons at BMW-Canada; BMW-North America; BMW-UK; the MINI-distributor in Japan; Transport Canada; NHTSA, the US regulator; VOSA, the UK regulator; ZFLS, which is a components supplier.

[118] The experts agreed that disclosure of any personal data is prohibited, unless the disclosing party can establish that the disclosure is permitted under an exemption. The experts agreed that the only exception that might apply in the immediate case is the “Legitimate Interest Exception” set out in Art. 6(1)(f) of the General Data Protection Regulation, which provides:

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 the data subject is a child.

[119] The experts agreed that the disclosure of personal data for the purposes of asserting or defending claims in legal proceedings is recognized as a legitimate interest under Art. 6(1)(f) of the General Data Protection Regulation. To rely on it, there are two preconditions. The first precondition is necessity; the disclosure of the personal data must be “necessary” (the “necessity test”). To satisfy the necessity test, the proposed disclosure must be “strictly necessary”; there must be no reasonable alternative that can satisfy the same objective. The second precondition is superiority of the interest in disclosure. 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, “the data subject”, in preventing the disclosure. This is a “balancing of interests test” or “proportionality test”. Disclosure remains prohibited if the interests or fundamental rights of the data subject outweigh the interests of the controller or the third party to whom disclosure is to be made. The experts agreed that the factors to be considered in carrying out the balancing of interests test 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).

[120] In his report, Dr. Piltz opined that there is a three-step balancing test for the Legitimate Interests Exception to be done in the following order: (1) identify the interests at stake; (2) evaluate if data processing is necessary to pursue the identified interests; and (3) evaluate if such interests are overridden by the interests or rights/freedoms of the data subjects. On his cross-examination, Dr. Hartung agreed that there was a three-step balancing test. (Dr. Hartung, however, was criticized for not following the order suggested by Dr. Piltz.)

[121] The experts agreed that in the third step of the Legitimate Interests Exception test, that of evaluating the impact of disclosure on the data subject, i.e., the human being whose personal data is being disclosed, it was necessary to consider both potential and actualized consequences of disclosure, including reputational damage and emotional damage such as irritation, fear, and distress. They also agreed that this evaluation was a case-by-case analysis.

[122] The experts agreed that in addition to meeting the criteria of the Legitimate Interests Exception, any disclosure of personal data to countries outside the European Economic Area [visualize Ontario] requires compliance with additional safeguards in line with the derogations established in Art. 44 ‒ 49 of the General Data Protection Regulation. One of these derogations in Art. 49(1)(e) of the General Data Protection Regulation permits the disclosure of personal data if “necessary for the establishment, exercise or defence of legal claims.”

[123] The experts agreed that there are sanctions and consequences for violation of the General Data Protection Regulation and Germany’s Federal Data Protection Act exposing the violator to administrative fines, as well as civil liability. The consequences for infringement include: (a) imposition of significant administrative fines by the European data protection supervisory authorities, which can amount to the greater of 20 million Euros or 4% of a corporation’s total annual worldwide turnover (i.e., revenues), which amounts to billions of Euros in BMW-AG’s case; (b) being subjected to the broad investigative powers of the European data protection supervisory authorities, including demands for data, searches of company premises and corrective actions; (c) criminal liability with penalties of prison terms up to two years and/or monetary fines up to a maximum of 10 million Euros; (d) individual claims by data subjects seeking various remedies including compensation; and (e) actions by Works Councils, including injunctive relief from labour courts.

[124] In the fundamental critical departure in opinions between the experts, Dr. Piltz opined – but Dr. Hartung disagreed – that BMW-AG may lawfully process the personal data at issue in the case at bar and comply with the foreign privacy law without redacting any data by complying with the standards of Ontario’s Rules of Civil Procedure for affidavit of documents which already imposes the standard that the data must be “objectively relevant to the issues being litigated.”

[125] In contrast, Dr. Hartung opined – but Dr. Piltz disagreed – that in the immediate case, BMW-AG must follow the layered approach to comply with its foreign privacy law obligations. In Dr. Hartung’s opinion, the layered approach was established by European regulators or “data protection supervisory authorities” in “Working Paper 158” or “WP 158,” which states:

There is a duty upon the data controllers involved in litigation to take such steps as are appropriate (in view of the sensitivity of the data in question and of alternative sources of the data) to limit the discovery of personal data to that which is objectively relevant to the issues being litigated. There are various stages to this filtering activity including determining the data that is relevant to the case, then moving on to assessing the extent to which this includes personal data. Once personal data has been identified, the data controller would need to consider whether it is necessary for all of the personal data to be processed, or, for example, could it be produced in a more anonymized or redacted form. Where the identity of the individual data subject’s is not relevant to the cause of action in the litigation, there is no need to provide such data in the first instance. However, at a later stage it may be required by the court which may give rise to another “filtering” process [emphasis added].

[126] Dr. Piltz, however, opined that WP 158 does not apply to litigation before a Canadian court, for three reasons: (1) WP 158 applies only to a controller obligated to make pre-trial documentary disclosure in legal proceedings in the United States; (2) WP 158 was not one of the working papers “explicitly endorsed” by the European Data Protection Board (“EDPB”) after the coming into force of the General Data Protection Regulation, and therefore the EDPB would not consider the WP 158 guidelines applicable;” and (3) the layered approach prescribed in WP 158 need not be followed by BMW-AG in this action because that document, as a guideline issued by data protection supervisory authority, is not legally “binding.”

G. BMW-AG’s Argument

[127] BMW-AG submits that the expert evidence establishes that for it to disclose and produce the relevant documents without redacting the personal data of employees and other persons dealing with BMW-AG would contravene the foreign privacy law. BMW submits that to avoid penalties and possibly criminal sanctions, BMW-AG is legally obliged to follow the layered approach, which will ensure that personal data will only be disclosed if it is strictly necessary for the purposes of prosecuting or defending the action. BMW-AG argues that there is a general principle that an Ontario court will not compel a foreign litigant to contravene the laws of the home jurisdiction where compliance with the laws of both jurisdictions can be reasonably accommodated. BMW-AG submits that this court should as a matter of comity permit BMW-AG to discharge its documentary disclosure obligations in a manner that will not result in a contravention of the foreign privacy law if it is reasonably possible to do so.[^38] BMW submits that following the layered approach in the immediate case is feasible and will not interfere with the court’s ability to fairly adjudicate the matters in issue while accommodating BMW-AG’s need to comply with its legal obligations under the foreign privacy law. BMW-AG submits that if it is allowed to disclose its documents in accordance with the so-called layered approach, then it will be in compliance with the law of its home jurisdiction without impediment to the prosecution and defence of the case at bar.

H. Mr. Harris’s Argument

[128] Mr. Harris’s argument is the foreign privacy law does not prohibit BMW-AG from complying with the Rules of Civil Procedure about the production of documents in unredacted form. Relying on Dr. Piltz’s opinion, Mr. Harris submits that BMW-AG may lawfully deliver an unredacted affidavit of documents and produce unredacted documents under the Legitimate Interests Exception of Article 6.1 (d) of the foreign privacy law.

[129] In short, Mr. Harris argues that the layered approach is not necessary in the immediate case. Moreover, it is a principle of fundamental justice that relevant evidence should be produced irrespective of any foreign statute prohibiting disclosure even where disclosure of relevant information in Canada constitutes a criminal offence under foreign law; comity does not prevent disclosure.[^39]

[130] Further, Mr. Harris submits that BMW-AG’s motion is in essence an after the fact attempt to obtain a redaction order contrary to the open court principle when it would not be entitled to such an order.[^40] Mr. Harris submits that BMW-AG has not and cannot satisfy the test to permit it to redact the personal data at issue from the plaintiff and class counsel or from Class members and the public at a later stage in this proceeding.

I. Analysis and Discussion

[131] As noted above the fundamental critical departure in opinions between the experts is that Dr. Piltz opined that BMW-AG may lawfully process the personal data at issue in the case at bar and comply with the foreign privacy law without redacting any data by complying with the standards of Ontario’s Rules of Civil Procedure for affidavit of documents. Dr. Piltz’s thesis is that the three-part Legitimate Interests Exception is already ingrained or accommodated or “baked-in” so to speak, by the relevancy provisions of the Rules of Civil Procedure and the layered approach does not apply or does not need to be applied.

[132] With a modest tweaking, I agree with Dr. Piltz’s opinion. Put somewhat differently, I am persuaded that having regard to the totality of the Rules of Civil Procedure, which is designed to provide a procedure that is fair to all the parties to a proceeding and to facilitate the court’s truth seeking function and its function administering justice having regard to procedural, evidentiary and substantive law, the factors that would satisfy the three-part test for the Legitimate Interests Exception are ingrained or baked into the Rules of Civil Procedure.

[133] For clarity and to end the headbutting, I shall add a few tweaks to rule 30.03 and Form 30B for the purposes of the case at bar. The tweaks make explicit what happens in practice and what is in accordance with the baseline of the authorities with respect to when a party may redact information on the grounds that the information is either privileged or irrelevant.

[134] Because of their obstinacy, neither Class Counsel nor BMW’s Counsel appreciate that the experts’ opinions and the spirit of the experts’ opinions are not that far apart. Both experts agree that BMW-AG must comply with the foreign policy law. Both experts agree that under the foreign privacy law, BMW-AG must disclose and produce documents in a manner that redacts personal data unless an exception applies. Both experts agree that the only available exception is the Legitimate Interests Exception. Both experts agree that the Legitimate Interests Exception could be available in the circumstances of the immediate case. Both experts agree that the outcome of the application of the Legitimate Interests Exception is that BMW-AG can disclose and produce unredacted documents just as BMW-Canada can disclose and produce unredacted documents.

[135] So far so good, as the experts are in lock step about the beginning and the end of the march to the disclosure and production of unredacted documents, it’s about the middle of this journey toward compliance that the experts stay on the path, but they fall out of step. The difference between the experts is that Dr. Hartung’s opinion is that BMW-AG can get to the goal line of unredacted documents only by the layered approach as it is set out by European regulators or “data protection supervisory authorities” in “Working Paper 158.” Dr. Piltz disagrees and opines that for three reasons Working Paper 158 does not apply in Canada, but, more importantly, Dr. Piltz opines that for a German corporation sued in Ontario, the Legitimate Interests Exception does not require the layered approach at all, and he submits that the corporation can disclose or produce unredacted documents in the first instance. In Dr. Piltz’s opinion, the “data minimization principle” of the layered approached has been satisfied by BMW-AG making the relevance decision of what documents should be included in the affidavit of documents and separating those from non-relevant documents so that only relevant personal data is disclosed in the affidavit.

[136] I agree with Dr. Piltz’s ultimate conclusion; however, I note that BMW-AG has not completed the exercise of making a relevance decision about the redactions; it has postponed that exercise to the second step of the layered approach.

[137] And, I parenthetically note that since I agree with Dr. Piltz’s ultimate conclusion, I need not decide whether he was right that Working Paper 158 does not apply in Canada for any of his three reasons. I rather doubt that he is correct in deciding that Working Paper 158 is limited to the United States, but it is not necessary for me to decide the point.

[138] My conclusion about the foreign law, which is a finding a fact, is that in Ontario, BMW-AG shall be complying with the foreign privacy law if it discloses and produces documents in accordance with a modified rule 30.03 and Form 30B. In these circumstances, it is not necessary for me to say anything more about Working Paper 158 or to say anything about how Dr. Piltz and Dr. Hartung differ about BMW-AG’s exposure to legal risk in Germany.

[139] Turning more precisely to Dr. Piltz’s opinion, the first and second steps of the test of whether the Legitimate Interests Exception to the prohibition of producing documents with unredacted personal data applies are: (a) to identify the interests at stake; and, (b) to evaluate whether disclosure of personal data is necessary to pursue those identified interests. I agree with Dr. Piltz, and think it is obvious, that the parties, including class members in a class action, the courts, and the public have a legitimate interest in the accuracy of the court’s truth seeking and justice seeking function that is facilitated by the production of unredacted relevant evidence.

[140] I agree with Dr. Piltz, and think it is obvious, that in order to prosecute or to resist civil (or criminal proceedings) that a litigant is entitled to fulsome and accurate disclosure of the case that he or she has to meet and also disclosure of documents that are relevant to the prosecution or the defence of the case that he or she presents to be met. I agree with Dr. Piltz’s opinion that a plaintiff’s interest in receiving an unredacted document is a very strong interest, but I would add that a defendant’s interest is equally strong in being able to produce an unredacted document. As for the public, I need only mention what Lord Chief Justice Hewart stated: “[I]t is not merely of some importance, but it is of fundamental importance that justice should be not only be done, but should manifestly and undoubtedly be seen to be done.”[^41] I also repeat the fundamental principle of the law of evidence mentioned by Justice McLachlin in R v. Seaboyer,[^42] that it is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues.

[141] In a particular case, either side of a dispute might not be eager to produce a damaging document, but the Rules of Civil Procedure put them to their oath and their lawyers are required to certify on the affidavit of documents that he or she has explained to the deponent: (a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action; and (b) what kinds of documents are likely to be relevant to the allegations made in the pleadings. The rules for affidavits of documents and for production of documents between the parties manifest a very high interest in the disclosure and the production of unredacted relevant documents. Ingrained in the Rules of Civil Procedure are the first two steps of the test for unredacted disclosure and production of relevant documents pursuant to the Legitimate Interests Exception.

[142] Turning to the third step of the test for the Legitimate Interests Exception, that step puts in the balance and weighs the legitimate interest for disclosure and production of documents unredacted in whole or in part against the interests or rights/freedoms of the data subjects, i.e., the persons whose personal data is being disclosed. I agree with Dr. Piltz’s conclusion that in the circumstances of the immediate case, the personal interests of those named on a relevant document would not likely overbalance the interests favouring disclosure, but a case-by-case analysis is required. Dr. Piltz perhaps gave too much weight to the notoriety of the manufacturing scandal involving Volkswagen, but I do agree with his ultimate conclusion that the relevance scrutiny (and also privilege scrutiny) that is baked into the Rules of Civil Procedure satisfies the test for the Legitimate Interests Exception, and thus it is not necessary to follow the layered approach.

[143] The Rules of Civil Procedure in practice and in line with the baseline authorities discussed above permit a balancing of the interests of the so-called data subjects – and also the parties themselves for that matter – who have legitimate privacy interests that would be protected by the redaction of information. The general rule is against the redaction of documents, but redactions – when they can be justified – are possible. The problem in the immediate case is that BMW-AG has not yet completed the justification exercise that is required of it under the Rules of Civil Procedure and that is anticipated under the layered approach.

[144] I, therefore, conclude that Dr. Piltz’s opinion that the layered approach is built into the Rules of Civil Procedure is correct. I therefore conclude that BMW-AG can produce redacted documents in accordance with the Rules of Civil Procedure provided that it is in the 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, which would be the interests of the person whose personal information is being disclosed.

[145] Redacting information from documents to be produced is not something extraneous to the Rules of Civil Procedure, and while the text of the Rules of Civil Procedure wants for an express articulation of the possibility of redactions, redaction is implicit in several rules including the rules about affidavit of documents especially with respect to privileged documents, for which there is partial disclosure but no production of a privileged documents. In practice, as discussed above, litigants frequently redact privileged material from composite documents that contain relevant material, irrelevant material, and privileged material. Redaction is often on consent or unopposed, but redaction can be reviewed by the court. The court has the authority to seal documents, to make redaction orders, and to allow pseudonyms to be used. I agree with the notion arising from Dr. Piltz’s report that the Legitimate Interests Exception is implicit within the Rules of Civil Procedure.

[146] Before concluding this decision, it behooves me to return to the matter of Justice Belobaba’s decision only to say that there is nothing in Justice Belobaba’s decision that causes me to change my analysis.

J. Conclusion

[147] For the above reasons, I order BMW-AG to refile forthwith its affidavit of documents and its documents for the Discovery Plan motion in accordance with the modified rule 30.03 and Form 30B as described above. I order that there be no order as to costs of this motion.

Perell, J.

Released: November 16, 2022

Schedule “A”

1. Decision of Justice Belobaba – Production Motion

Kalra v Mercedes Benz Canada Inc., Daimler AG et al (September 16, 2019)

• Messrs. Griffin, Kolenda and Sayce for the Plaintiff ("P")

• Mr. Rosenhek, Ms. Toppings, Ms. Potter and Mr. Carmichael for Daimler AG ("D")

1. Discovery motions. Daimler (based in Germany) continues to refuse any meaningful production of relevant documents unless and until each document is redacted to exclude personal information in accordance with D'S interpretation of the EU General Data Protection Regulation 2016/79. The redaction process will take many months if not years to complete and the redacted documents that are finally provided will be of limited value and greatly prejudicial to P in its upcoming SJ motion: see the Redacted Email Sample.

2. As an Ontario judge, I acknowledge and respect EU's privacy Regulation but I note the clear litigation exception and the rationale for the balancing requirement in s. 6(1 )(f). I am not persuaded on the evidence before me that the letter and spirit of s. 6(1)(f) will be infringed if this court orders the production of all relevant documentation in unredacted form and couples this order with a comprehensive Protective Umbrella or Judicial Lockbox that may include Sealing and Confidentiality Orders and NDAs and thus fully achieve the objectives of the GDPR.

3. Therefore, exercising my discretion under s. 12 of the CPA, I decide the two motions before me as follows:

(a) D'S motion for an Order approving the redacting ("layered") approach is dismissed for the reasons just stated.

(b) P 's motion for an Order approving its Discovery Plan is deferred to allow the parties to revise the Discovery Plan to reflect the following:

(c) D to start producing all relevant documents in unredacted form immediately and to advise P by Oct. 31 re estimated time frame for complete production;

(d) P and D to design the appropriate Protective Umbrella or Lockbox referred to above and to do so 30 days;

(e) P and D to agree on appropriate language for the custodian and search term provisions;

(f) Relevant documents to also include documents relating to Hardware (because of St. of Cl.'s definition of Defeat Device, AECD, "element of design" and para. 25) and docs relating to communications with North Ana. Regulators re the defined Vehicles, but not any communications re any other vehicles.

2. Decision of Justice Ducharme – Stay Motion

Kalra v Mercedes Benz Canada Inc., Daimler AG et al (November 19, 2019)

The moving party seeks a stay of the order of Belobaba dated September 16, 2012 based on the argument that he ignored expert evidence and interpreted s. 6(1)(f) of the GDDR [foreign privacy law] on his own instance.

The interaction between the DGPR and the Rules of Civil Procedure in any Canadian jurisdiction is a matter of first instance. However, I am of the view that Belobaba, J. proceeded in a careful manner that was supported by the evidence before him. I would not find that there is a serious issue to be determined on appeal. In terms of irreparable harm, I find that the moving party has not made this out. Claims that Daimler will be subjected to proceedings for violating the GDPR or will be subject to a action by persons whose data have been revealed pursuant to Belobaba J.’s order are speculative. Nor is the balance of convenience favour granting a stay in this case. There has been considerable delay and a stay would needlessly acerbate that.

The motion for a stay pending appeal is dismissed. […]

COURT FILE NO.: CV-14-497479-00CP

DATE: 20221116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER SCOTT HARRIS

Plaintiff

• and -

BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.

Defendants

REASONS FOR DECISION

PERELL J.

Released: November 16, 2022

[^1]: S.O. 1992, c. 6.

[^2]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 1647.

[^3]: EU General Data Protection Regulation (GDPR): Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1.

[^4]: Bundesdatenschutzgesetz, Federal Data Protection Act of 30 June 2017, Federal Law Gazette I p. 2097), as last amended by Article 10 of the Act of 23 June 2021 (Federal Law Gazette I, p. 1858; 2022 I p. 1045.

[^5]: Strictly speaking, the European Union’s General Data Protection Regulation enacted May 25, 2018 is higher-ranking, and Germany’s Federal Data Protection Act cannot impose limitations that are not also codified in the European Union’s enactment.

[^6]: R.R.O. 1990, Reg. 194.

[^7]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5967.

[^8]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5958.

[^9]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 1647. I awarded Mr. Harris costs of $300,000 for the certification motion; Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 4220.

[^10]: 2020 SCC 19.

[^11]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 4761.

[^12]: (Telekommunikationsgesetz), Telecommunications Act (TKG) of 23 June 2021 (BGBl I 2021, 1858 FNA 900-17; GESTA E059).

[^13]: Das v. George Weston Limited, 2017 ONSC 4129 at paras 200-202, aff’d 2018 ONCA 1053; Callpro Canada Inc. v. Prima Telematique Inc., [2001] O.J. No. 1474 (S.C.J.); Hunt v. T&N plc, 1993 CanLII 43 (SCC), [1993] 4 S.C.R. 289 at p. 308.

[^14]: Bumper Development Corporation Ltd. v. Commissioner of Police of the Metropolis, [1991] 4 All ER 638 (C.A.).

[^15]: Das v. George Weston Limited, 2017 ONSC 4129 at paras 200-202, aff’d 2018 ONCA 1053; Callpro Canada Inc. v. Prima Telematique Inc., [2001] O.J. No. 1474 at paras. 70-74 (S.C.J.); Bausch and Lomb Optical Co. Ltd. v. Maislin Transport Ltd. (1975), 1975 CanLII 651 (ON SC), 10 O.R. (2d) 533 (H.C.J.); Lyon v. Lyon, 1959 CanLII 122 (ON CA), [1959] O.R. 305 (C.A.).

[^16]: Das v. George Weston Limited, 2017 ONSC 4129 at paras 200-202, aff’d 2018 ONCA 1053General Motors Acceptance Corp. of Canada v. Town and Country Chrysler Ltd., 2007 ONCA 904 at paras. 36-38; Zapsibinvest Russian-American Joint Venture v. Raanani Estate, [2003] O.J. No. 2244 at para. 48 (S.C.J.); Bumper Development Corporation Ltd. v. Commissioner of Police of the Metropolis [1991] 4 All ER 638 at p. 368 (C.A.); Rouyer Guillet v. Rouyer Guillet & Co., [1949] 1 All ER 244 (C.A.).

[^17]: Allen v. Hay (1922), 1922 CanLII 25 (SCC), 64 S.C.R. 76 at para. 24.

[^18]: Kinectrics Inc. v FCL Fisker Customs & Logistics Inc., 2020 ONSC 6748 at para 64.

[^19]: Yao Wei Li vYao ChaoLi, 2017 ONSC 1611 at para 2; Bank of Nova Scotia v Wassef, [2000] OJ No 4883 (SCJ) at paras 20-21.

[^20]: 2020 ONCA 310, aff’g 2019 ONSC 4280.

[^21]: Practice Directions - Commercial List (1995), 24 O.R. (3d) 455 (Gen. Div.).

[^22]: Renegade Capital Corp. v. Hees International Bancorp Inc. [1995] O.J. No. 3648 (Gen. Div.).

[^23]: [1999] O.J. No. 1619 (Master). See also Bosworth v. Coleman, 2014 ONSC 6135.

[^24]: 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

[^25]: 1252663 Ontario Inc. (c.o.b. Premier Concrete Contractors Inc.) v. Lynx Environmental Solutions Inc., 2022 ONSC 5175 (Assoc. J.); Sherman Estate v. Donovan, 2021 SCC 25.

[^26]: 2020 ONCA 310, aff’g 2019 ONSC 4280.

[^27]: Sopkina, Lederman, Bryan, The Law of Evidence in Canada (2nd ed.), paras. 2.36, 2.50

[^28]: R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190; Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709.

[^29]: 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 per Justice McLachlin, as she then was, stated: J. at p. 609:

[^30]: 2004 CanLII 34954 (ON SC), [2004] O.J. No. 4468 at para. 109 (S.C.J.)

[^31]: 2010 ONSC 789.

[^32]: 2010 ONSC 1408.

[^33]: McGee v. London Life Insurance Co. [2008] O.J. No. 1760 (S.C.J.).

[^34]: Rath v. Tanzanian Gold Corp., 2022 ONSC 5184 (Assoc. J.); Bentprop Holdings Inc. v. TFS Management Inc., 2022 ONSC 4314 (Assoc. J.); Seelster v. Ontario, 2015 ONSC 908 at para. 120.

[^35]: Yu v. Linnell 2022 ONSC 2788.

[^36]: 2011 ONSC 2763, leave to appeal to the Div. Ct. ref’d 2011 ONSC 3185 (Div. Ct.).

[^37]: ASWR Franchising Corp. v. Morrison Brown Sosnovitch LLP, 2022 ONSC 5463 (Assoc. J.); Bentprop Holdings Inc. v. TFS Management Inc., 2022 ONSC 4314 (Assoc. J.); Walsh Infrastructure Credit Valley Ltd. v. Trillium Health Partners, 2021 ONSC 2097; Walsh Construction Co. Canada v. Toronto Transit Commission, 2020 ONSC 3688 at para. 65 (Master); Payne v. Windsor (City) 2011 ONSC 2763, leave to appeal to the Div. Ct. ref’d 2011 ONSC 3185 (Div. Ct.).

[^38]: TD Bank, N.A. v. Lloyd’s Underwriters 2016 ONSC 4188; Frischke v. Royal Bank of Canada (1977), 1977 CanLII 1069 (ON CA), 17 OR (2d) 388 at para. 26 (C.A.); R. v. Spencer 1985 CanLII 4 (SCC), [1985] 2 S.C.R. 278.

[^39]: Laxton v Coglon et al,2006 BCSC 1458at paras 34-35; Comexter Inc. v. B.C. (Official Admin. forWestminster County), 1987 CanLII 2720(B.C.S.C.); Spencer v. The Queen,1985 CanLII 4 (SCC), [1985] 2 S.C.R. 278.

[^40]: Sherman Estate v. Donovan, 2021 SCC 25.

[^41]: R. v. Justices of Sussex, [1924] 1 K.B. 256 at 259 (Div. Ct.).

[^42]: 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 per Justice McLachlin, as she then was, stated: J. at p. 609: