One of the fundamental doctrines of litigation is full documentary disclosure. Courts have vigilantly upheld the rule that all relevant documents should be disclosed so that the opposing party knows the case to be met. The principle is so deeply embedded in our justice system that before an affidavit of documents (a brief of relevant evidence) is sent to an opposing party, a lawyer must sign a certificate stating that he or she has explained to the client that they are required to make full disclosure. A court can sanction a party for failing to disclose relevant documents that are within its control by an order the court deems fit. Further, an opposing party that has not been provided with full disclosure can ask the court to make negative inferences from the lack of disclosure.
The obligation to disclose often conflicts with a competing interest – the privacy of third parties who are not parties to the litigation. Often, events unfold so as to implicate a multilateral web of people, be they employees, businesses, family members, etc. After all, parties do not act in a vacuum. Accordingly, in a hyper-surveilled and digitally traced world, an emerging mandate has taken hold of our collective zeitgeist for greater privacy.
How do these trends affect a party’s obligation to disclose relevant documents that contain information about third parties? Can lawyers refuse to provide opposing counsel with relevant documents on the basis of privacy owed to third parties?
Pursuant to Ontario’s Rules of Civil Procedure – the rules that govern Ontario’s civil court proceedings – a lawyer is required to disclose all documents that are relevant to a matter at issue in an action. However, subject to the proportionality provisions of the Rules, a judge or master may consider the privacy of non-parties and limit the scope of such disclosure through various methods, including confidentiality agreements.
An instructive precedent can be found in John Tuer v. The Bank of Nova Scotia, 2019 ONSC 184. The dismissed Plaintiff filed a wrongful dismissal claim against his former employer, the Defendant. The Plaintiff brought a motion seeking production of documents related to the Defendant’s recruitment of third-party employees/prospective employees. The Plaintiff successfully argued the relevance of the recruitment documents. Master R. A. Muir noted that relevance was determined by the pleadings – the initial documents that state the parties’ claim and defence – and that the Defendant’s intentions and the process it followed in hiring the third-party employee were matters in issue.
Muir qualified his opinion by stating that some consideration must be given to the privacy of the non-parties involved in the recruitment process and that the Plaintiff’s production requests raised significant privacy concerns. Accordingly, Muir was agreeable to the Defendant’s proposal that if the court determined the requested documents were relevant, it would produce them subject to the signing of a confidentiality agreement. Muir was also agreeable to limiting the disclosure to the employee who was actually hired and one other employee who was seriously considered for the role.
That said, courts have steadfastly upheld the intent of the aforementioned Rules. In Brown v. KMI Brokers Inc., the Court stated:
One of the major purposes of the amendments to the Rules since 1984 has been to ensure a full exchange of relevant information between parties in a timely and efficient manner. (Ceci (Litigation Guardian) v. Bonk (1992), 1992 CanLII 7596 (ON CA), 89 D.L.R. (4th) 444 (Ont. C.A)). The service of a full and complete, sworn Affidavit of Documents is the fundamental starting point for the implementation of this objective in civil proceedings. Given the critical importance of documentary disclosure to the effective and efficient advancement of court proceedings, parties must comply with Rule 30.03(1) in a reasonably timely manner. Observance of this rule is not a matter of discretion; it is a basic precondition to a party’s ongoing participation in the litigation. This point is reflected in Rule 30.08(2), which provides that failure to serve a sworn Affidavit of Documents may result in very serious consequences, including a party’s claim being completely dismissed in the case of a Plaintiff, or a Defendant’s defence being struck.
That said, courts are unwilling to infringe on this principle, and the decision to do so is not taken flippantly. Once relevance and proportionality are established, the onus shifts to opposing counsel to argue why the circumstances call for limiting disclosure.
In the factual circumstances of John Tuer v. The Bank of Nova Scotia, the Court held that privacy legislation did not preclude disclosure of such documents.
Canada’s over-arching privacy legislation is called the Personal Information Protection and Electronic Documents Act (“PIPEDA”). PIPEDA’s application to employees is limited to federally-regulated sectors and undertakings, such as banks incorporated under the Bank Act. PIPEDA makes exceptions for the release of information without the knowledge or consent of a party to comply with the rules of court relating to the production of records (s. 7(3)(c)).
For these reasons, though privacy continues to transform into an ever-important consideration throughout the legal process, the search for truth and justice and its accompanying full disclosure reigns supreme. Where full disclosure and privacy rights are competing interests, continue to expect courts to find crafty ways of mitigating the risks associated with full disclosure. Parties to an action will only be given access to the relevant information required to move their case forward, and probably only after the other party has put up a fight to resist disclosure.