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Open Court - Redactions. 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:[3] During the pre-common issue discovery stage of the proceeding a dispute arose regarding the discovery plan and manner of production of documents required by the foreign defendant, BMW-AG. The dispute relates to the application of European and German Privacy laws to the disclosure and production obligations under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
[4] BMW-AG raised concerns that documents it was required to both disclose in their affidavit of documents and produce could reveal personal information in contravention of the European Union General Data Protection Regulation (“GDPR”) and German privacy law under the German Federal Data Protection Act (“BDSG”). In BMW-AG’s draft Discovery Plan it proposed that any document containing foreign private data be redacted.
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[7] At the underlying motion the parties each tendered expert evidence regarding how foreign privacy laws could be accommodated and complied with within the context of the disclosure obligations under the Rules. After considering the positions of the parties the motion judge crafted an order that required BMW-AG to deliver a further affidavit of documents with disclosure and production of documents relevant to any issue in the action with redactions for privileged information and personal data not relevant to any issue in the action.
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Analysis
[26] A high degree of deference is to be accorded to the motion judge regarding the application of the Rules. I find the motion judge did not err by exceeding his jurisdiction and had the authority to make the order. There was not a denial of procedural fairness in doing so.
[27] The issues for determination before the motion judge related to BMW-AG’s competing documentary production obligations. This issue was in dispute between the parties from the outset. In the notice of motion BMW-AG sought a declaratory order that it produce its documentary productions in accordance with the ‘layered approach” proposed by their expert. In the alternative however, BMW-AG requested “such further and other relief as this Honourable Court may deem just”.
[28] Rule 1.04(1) provides that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. It is in this context that the rules were to be applied by the motion judge. Read together, rr. 1.04(1) and 37.13(1) provided the motion judge with the discretion and flexibility to grant some or part of the relief sought on the motion as it related to the disclosure of personal data and privileged information and to use the procedural tools available to him to achieve a just result regarding the issues in dispute on the motion.
[29] The motion judge did not, as suggested by Harris, amend the Rules or Forms without giving either party notice or an opportunity to make submissions. For clarity and to give effect to the procedural order made, the motions judge used the text of r. 30.03 and Form 30 B and inserted the additional wording regarding the specific redactions allowed for personal data and privilege in this proceeding specifically.
[30] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 21, the Supreme Court of Canada references its earlier decision in Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 682, where the court states “the concept of procedural fairness is eminently variable, and its content must be decided in the specific context of each case”.
[31] Redaction as a method of achieving a balance in the production process was an essential feature of the “layered approach” proposed by BMW-AG’s expert which was addressed and responded to by Harris’s expert. While the motion judge did not accept BMW-AG’s expert’s proposal as to the precise manner and extent to which redactions should be made, redaction as a procedural tool was clearly referenced in both expert reports, such reports having been delivered prior the hearing of the motion. The concept of redaction was not foreign to the parties and was not raised for the first time at the hearing of the motion. Both parties made submissions to the motion judge on what personal data could be disclosed. It was open to the motion judge in the exercise of his discretion to use the procedural tools available to him in a way that resolved the issues he was confronted with during the initial disclosure process.
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Analysis
[40] I conclude that the motion judge did not err in ordering that BMW-AG could redact personal data from its productions. The discretionary order was consistent with established legal principles.
[41] Section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides the court with the authority to order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record. While there is no corresponding section dealing with redaction, similar principles apply.
[42] In the decision of McGee v. London Life Insurance Company Limited, 2010 ONSC 1408, 86 C.P.C. (6th) 381, the court dealt with the production of documents in a class action pension surplus case. This decision provides a general statement of the law regarding redaction and production of documents.
[43] In McGee, at paras. 8-9, Strathy J. (as he then was) states:[i]t 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 … 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. [Emphasis added.] Additionally, “[t]he party seeking to [redact portions of a document] bears the onus of establishing that redaction is necessary to protect an important interest”: McGee, at para. 13.
[44] In this case the motion judge’s order provided that BMW-AG could redact ... provided that it was in a position to establish that: (a) the redacted information is irrelevant to the issues, serving no legitimate purpose in resolving the issues; and [emphasis added] (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. The order was clear that relevancy on its own was not sufficient justification to redact; rather irrelevancy as well as significant harm or infringement of an important public interest was also required. The disclosure process set forth in the order is subject to the ongoing oversight by the court.
[45] It is apparent from the motion judges’ reasons that he was alive to and mindful of the open court principle set forth in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75. The motion judge’s reasons demonstrate a sensitivity to and understanding of the need to balance open courts and full disclosure with other limiting obligations. The motions judge’s decision was consistent with the principles in both the McGee and Sherman decisions. . Poyton v. Office of the Independent Police Review Director
In Poyton v. Office of the Independent Police Review Director (Div Ct, 2022) the Divisional Court considered practice issues where OIPRD redacted parts of a judicial review record:Issue (b) Redactions in the Record
[7] The respondent has redacted the record to remove personal information about persons involved in the case, to protect the privacy of those persons. The respondent has not sought to file an unredacted record with the court because, in the respondent’s view, none of the redacted information is material to the issues on the application.
[8] Mr Poyton has unredacted copies of most or all of the redacted documents: they are documents that he, himself, provided to the respondent and/or to PRPS. Much of the redacted information pertains to Mr Poyton himself.
[9] Mr Poyton understood that a complete record of what was before the respondent ought to be before this court on the application. Technically that is correct, and where it is necessary to do so, this court will direct that a redacted record be filed publicly and an unredacted record be provided to the court in a secure manner. As this matter was discussed in oral argument, Mr Poyton acknowledged the reasonableness of this approach. In the result, I dismiss the request that an unredacted record be filed, but I give the following directions for the information that has been redacted.a) If there is any redacted information in the record that Mr Poyton does not have, he may request an unredacted copy from the respondent for the purposes of this proceeding, on providing an undertaking not to divulge it to any person except as authorized by this court.
(b) If the respondent declines any request made by Mr Poyton under (a), it shall need to bring a motion before this court for a sealing order for that information.
(c) If the parties conclude that any of the redacted information needs to be provided to the court for the court to adjudicate the application on the merits, they shall provide this court with a consent, draft order, and an explanation of the request for a sealing order for this information to be provided to the court.
(d) If the parties disagree in respect to any issue under (c), the party wishing to have the redacted information placed before the court shall request a case conference with this court to schedule a motion on that issue. This rather complicated procedure is established based on my assessment that, when the applicable principles were explained to Mr Poyton during the motion, he understood the underlying purpose of the redactions and accepted that there was no need to burden the application court with two records if redacted information is not material to the application. For example, Mr Poyton’s OHIP number is not material to the application, and he has an important privacy interest in seeing that this personal information of his is not included in a court file that will forever remain open to be viewed by any member of the public. I would add a caveat that documents that are already in the public record (such as a publicly available decision in immigration proceedings) would not seem to qualify as documents in respect to which a person may have a continuing privacy interest. Given these observations, the court hopes and believes that there will be few, if any, disagreements over this issue now that it is better understood.
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