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PRIL - Foreign Statutory Compliance. Harris v. Bayerische Motoren Werke Aktiengesellschaft et al.
In Harris v. Bayerische Motoren Werke Aktiengesellschaft et al. (Div Court, 2024) the Divisional Court considered a class-action discovery redaction issue on appeal, here complicated by the involvement of European and German privacy laws.
Here the court considers the interaction of open court principles with foreign privacy laws, which it addressed in terms of attornment and international comity:3. If Foreign Law required redaction, should such redactions have been allowed?
Position of the parties
[46] Harris submits that even if the GDPR and BDSG requires redaction of relevant documents, it should not be allowed. Harris relies on Laxton v. Coglon et al, 2006 BCSC 1458, for the proposition that a potential breach of foreign law does not excuse a party from its pre-trial discovery obligations in Canada.
[47] In Laxton at paras 34-35 the Supreme Court of British Columbia states:[The defendant] knowingly decided to do business in a jurisdiction (namely, British Columbia) in which, if it became involved in litigation, it would be required to make full disclosure of its documents. Having assumed that risk by doing business in this jurisdiction, it would be unjust to the Plaintiff to excuse [the defendant] from complying with that obligation. Put another way, to exercise my discretion in this case would not only deprive the Plaintiff of her right to be provided with all relevant evidence, but it would permit a foreign country to frustrate the administration of justice in Canada in what is essentially a domestic situation. [48] In response BMW-AG submits that the jurisprudence does not support the proposition that a Canadian court should uncritically enforce and apply its domestic laws without regard to the impact it will have on parties and witnesses under foreign laws.
[49] Canadian courts have repeatedly affirmed that a domestic court should have regard for foreign laws binding on a litigant and facilitate compliance with those laws if it will not interfere with the court’s fact-finding process. BMW-AG cites the decision of the Court of Appeal for Ontario in Frischke v. Royal Bank of Canada (1977), 1977 CanLII 1069 (ON CA), 17 O.R. (2d) 388, at para. 26, where the court states:An Ontario Court would not order a person here to break our laws; we should not make an order that would require someone to compel another person in that person’s jurisdiction to break the laws of that State. We respect those laws. The principle is well recognized. [50] This principle was subsequently followed in TD Bank, N.A. v. Lloyd’s Underwriters, 2016 ONSC 4188, 92 C.P.C. (7th) 181, at para. 18, where the court states:Our courts have always sought means of accommodating the reasonable requirements of foreign law in matters pertaining to the production of documents in litigation. They do so whether by way of recognizing statutory privileges under foreign law or by way of extending comity. Analysis
[51] It cannot be said that the motion judge’s order made at this stage of the litigation with the specified pre-conditions permitting redaction will have the ultimate effect of depriving the plaintiff of his right to be provided with all relevant evidence, especially given the court’s ongoing oversight and the opportunity for subsequent challenges to any and all initial redactions made. The motion judge’s use of redaction allowed the court at this stage of the proceeding to appropriately balance the competing interests, namely avoiding infringement of public interests deserving of protection and compliance with foreign law, without frustrating the Ontario courts’ fact-finding and disclosure process. The order made is consistent with the principles in both the Laxton and Frischke decisions cited by the parties.
[52] I agree with BMW-AG’s submission that this is a matter of international comity; while foreign laws cannot dictate the procedures to be followed by Canadian courts, a foreign litigant should not be compelled to contravene the laws of its jurisdiction if domestic fact-finding process can accommodate compliance with foreign laws.
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