I think any privacy lawyer would have predicted the result of this Ontario court decision about whether you can use PIPEDA as a shield against answering questions in the course of litigation, but it is good to have authority on the point. The full text of the decision is available on CanLII at http://www.canlii.org/on/cas/onsc/2004/2004onsc11636.html. Below is an excerpt of the relevant portions of the decision.
FILE NO.: 03-CV-251465-CM1
DATE: 20040706
SUPERIOR COURT OF JUSTICE - ONTARIO
BEFORE:
T. Ducharme, J.
COUNSEL:
D.R. Rothwell
For the Appellant
R. Shour
For the Respondents
MOTION
HEARD:
July 2, 2004
E N D O R S E M E N T
[1] The
Plaintiff/Appellant ["Appellant"] appeals from an interlocutory order
made on April 20, 2004 by Case Management Master Carol Albert which:
(a) granted leave to amend the Statement of Defence
and Counterclaim;
(b) gave directions for further examinations for discovery;
(c) ordered answers to three questions which had been refused
during the discovery of Einhardt Wiedel; and
(d) awarded and fixed costs payable by the plaintiff of
$2,100.
The Appellant asks that this order be set aside and an order
be made instead in terms as set out in paragraph 2 of their factum.
[2] The Parties
are agreed that the appropriate standard of review is that set out in Bank of Nova Scotia v. Liberty Mutual Insurance Co., [2003], O.J. No. 4474 (Div. Ct.):
(a) if the matter is one of discretion, the court should
not interfere unless the Master was clearly wrong;
(b) if the matter is one of law that is not vital to the
disposition of the lawsuit, the court should not interfere unless the Master
was clearly wrong; and
(c) if the matter is one of law that is deemed vital to
the disposition of the lawsuit, the test should be one of correctness.
Moreover, where the Master is
dealing with interlocutory matters not vital to the disposition of the case,
the motion ought to be heard as an appeal and not de novo.
The Granting of Leave to Amend the
Statement of Defence and Counterclaim
[3] Master Albert
granted leave to amend the Statement of Defence and Counterclaim. The Appellant
concedes that many of these amendments were in the nature of housekeeping
amendments, but objects to the addition of the name of one Alan Grelowski to
paragraphs 53 and 58 of the Statement of Defence and to paragraph 137(i) of the
Counterclaim. The Appellant advances two arguments: (1) There was not a
sufficient factual basis in the motion record before the Master to permit this
amendment; and (2) The amendments caused prejudice to the Appellant insofar as
they result in a re-attendance for further examination for discovery.
[4] The granting
of the amendments to the pleadings is governed by Rule 26.01 which provides
that the court shall grant leave to amend a pleading unless prejudice
would result that could not be compensated for by costs or an adjournment. As Moldaver
J.A. noted in Andersen Consulting Ltd. v. Canada (Attorney
General), [2001] O.J. No. 3576 at paragraph
37 (Ont. C.A.)
there is a:
well-established rule that amendments like those sought in
the present case should be presumptively approved unless they would occasion
prejudice that cannot be compensated by costs or an adjournment; they are shown
to be scandalous, frivolous, vexatious or an abuse of the court's process; or
they disclose no reasonable cause of action.
It is worth noting that Moldaver, J.A. made no mention of
some minimal factual support in the record as being a further prerequisite to
the granting of leave to amend the pleadings. Indeed, the balance of Andersen Consulting Ltd. suggests
precisely the opposite, as the motions judge was criticized at paragraph 35 for
"weighing evidence, interpreting controversial contractual provisions and
making findings of fact, all matters that should have been avoided at the
pleading stage." Counsel for the Appellant was unable to cite
any authority for the proposition that amendments to pleadings can only be
granted where there is a sufficient factual basis for them outlined in the motion
record. In my view, this argument must be rejected as it is clearly
inconsistent with the presumptive approval test mandated by Rule 26.
It should also be noted that the reasons for these amendments were
explained in the Case Management Motion Form filed before the Master. While the
Appellant may dispute the factual basis for these assertions that is a matter
for trial.
[5] The argument
that the amendments resulted in prejudice that cannot be compensated for
"by costs or an adjournment" can be dispensed with quickly. As Master
Albert noted there was no evidence that any prejudice would result from the six
month delay. Moreover, the prejudice identified on appeal that is, the need to
re-attend for further examinations for discovery, is precisely the type of
prejudice that can be dealt with by way of costs and/or an adjournment. Thus,
it cannot be maintained that the amendments should have been refused on this
basis.[1]
In oral argument, the Appellant conceded that this prejudice could be remedied
by costs and asked that this Court make an order in this regard. However, as
the Appellant sought no such relief in argument before the Master, it would not
be appropriate to order costs when the matter was not raised at the first
instance.
[6] As a result,
the order permitting the Respondent to amend the Statement of Defence and
Counterclaim is upheld.
The Order to Answer Questions Which Had
Been Refused
[7] Master Albert ordered
that questions 659, 698 and 956 which had been refused upon the examination of Einhard
Wiedel should be answered. Both parties agree that the numbers of the first two
questions was misidentified and that the questions to be answered were 879, 899
and 956. The Appellant does not rely on this error and the parties are agreed
that these questions related to the provision of names and addresses of
employees, the length of service of employees and the names addresses and
telephone numbers of former employees since 1999. Here again the Appellant
argues that there was an insufficient factual basis in the record before the
Master to support this order. The Appellant also argues that these refusals
should have been sustained as the questions were irrelevant and because the
disclosure of such information was prohibited by the Personal Information
Protection and Electronic Documents Act( 2000, ch. 5).
[8] The
pleadings in any civil action form the terms of reference for discovery and
relevance at discovery is broader than at trial. There is no requirement that
the proposed questions be factually supported by the motion record and, once
again, counsel for the Appellant was unable to cite any authority for that
proposition. The applicable standard here is the
"semblance of relevance" test articulated by Steele, J. in Kay v. Posluns
(1989), 71 O.R. (2d) 238 (H.C.). As Master Albert found, the information relating to
employees and former employees of the Appellant is relevant to paragraphs 99 to
106 of the Statement of Defence and paragraph 27 of the Reply and Defence to
Counterclaim. These employees may have information relating to the 308.73
carats of diamonds that the Appellant alleges were never delivered to them. As
such these questions are relevant and, with respect to questions 879 and 956,
expressly authorized by Rule 31.06(2). This order was a discretionary one and,
applying the proper standard of review, it cannot be said that Master Albert
was clearly wrong.
[9] As for
the Appellant's submission that the disclosure of this information would be
prohibited by the Personal Information Protection and Electronic Documents Act( 2000, ch. 5) this ignores the express provision of
section 7(3)(c) of that Act which provides, in relevant part:
(3) . . . an organization may
disclose personal information without the knowledge or consent of the
individual only if the disclosure is
(c) required to comply with a subpoena or
warrant issued or an order made by a court, person or body with
jurisdiction to compel the production of information, or to comply with rules
of court relating to the production of records.
At a minimum, the order of Master
Albert is an order made by a court with jurisdiction to compel the production
of information. Thus, this submission of the Appellant also fails.
[10] As a result, the Master's order is
upheld and the Respondent is ordered to answer questions 879, 899 and 956.
The Order to Re-attend for Further
Examinations for Discovery
[11]
At the outset, the parties are agreed that the
Master should not have ordered re-attendance as a result of the amendments to
the pleadings as the Respondent made no such request before her. They are
agreed that, if the order to re-attend is sustained, it should be in relation
only to undertakings and refusals subsequently answered. I agree.
[12]
Here again the Appellant argues that there was
an insufficient factual basis in the record before the Master to support this
order. In this regard, the Appellant relies on the decision of Master Beaudoin
in Central Guaranty Trust Co. v. Beebe Estate, [1997] O.J. No. 4882
where he states at paragraph 7:
Rule 31.06 certainly contemplates
only one oral examination for discovery. As to whether or not
there is a right to further discovery, once again I am presented with
conflicting authorities by counsel. The plaintiff relies on I.C.S.
Construction Ltd. v. GKN Birelco Ltd., [1991] O.J. No. 597, (March 13,
1991), Doc. CLA 162/87 Forestell J. (Ont. Gen. Div.) whereas the defendants
rely on Christie Corporation v. Alvarez (1994) 34 C.P.C. (3d) 92, a decision of Mr. Justice McNeely which
distinguishes the J.C.S. Construction case. Upon reading
these decisions, I am satisfied that there is no automatic right by one party
to compel the re-attendance of another merely because the other party has
complied with an undertaking or provided an answer after a discovery.
I believe the decision of McNeely J. gives some guidance in this
regard in that he suggests the moving party must demonstrate why reattendance
would serve a useful purpose. In this instance, I believe it would
be helpful for the court to have, by way of affidavit, an indication of what
areas need to be explored through further oral examination on discovery.
It is not sufficient to accept, as submitted by plaintiffs
counsel, that the opposing party can object if counsel, on re-examination
strays into areas previously responded to or into areas upon which he may not
be entitled to re-examine.
[13]
I accept that there is no automatic right by one party to
compel the re-attendance of another merely because the other party has complied
with an undertaking or provided an answer after a discovery. However, I reject
the suggestion that in Central Guaranty Trust Co. v. Beebe Estate Master Beaudoin was
propounding a general requirement that affidavit evidence is required before an
order for re-attendance will be made. Indeed, Master Beaudoin expressly limited
the scope of his suggestion when he said affidavit evidence would be helpful
"In this instance". None of the other cases cited by the Appellant
support such a general rule and counsel for the Appellant was unable to cite
any cases where Central Guaranty Trust Co. v. Beebe Estate was
interpreted to this effect. Indeed, the proper approach to the ordering of
re-attendance was clearly identified by McNeely, J. in Christie Corporation v.
Alvarez where he said at paragraph 4, "no general rules are possible
and each case must be considered on its merits." In this case, after the
completion of discoveries, the Appellant provided answers to ninety nine
undertakings and twenty refusals. The decision to order re-attendance was a discretionary one
and, applying the proper standard of review, it cannot be said that Master Albert
was clearly wrong.
[14]
As
a result, the Master's order is upheld and the Appellant is ordered to re-attend for discovery arising from the
answers to the undertakings and refusals.
