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The Rules of the Court of Appeal - Redaction of Relevant Documents

February 24, 2022

Ontario

,

Canada

Issue

Can a plaintiff redact confidential or irrelevant documents or portions thereof contained in their AOD?

Conclusion

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. 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. (McGee v. London Life Insurance Company Limited)

Under the rules of the 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. (McGee v. London Life Insurance Company Limited, North American Trust Co. v. Mercer International Inc.)

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 examples include:

(a) patents or trade secrets
(b) personal income tax information
(c) commercially sensitive financial information
(d) records of a purely private and personal nature and not relevant to the issues, such as notes between parties (McGee v. London Life Insurance Company Limited)

The general rule is that relevant documents must be produced in their entirety: a party may not redact portions of a relevant document only because it says those portions are not relevant. However, that is not the end of the analysis and the general rule is subject to exceptions:

- If portions of a relevant document are clearly not relevant and there is good reason why they should not be disclosed (such as, for example, if the information would cause significant harm to the producing party and in no way serve to resolve the issues at hand in the action) then such portions may be redacted. The party resisting full disclosure has the onus of establishing that the redacted portions contain irrelevant information and that redaction is necessary.

- If the portions redacted from a relevant document are relevant, such portions may be redacted if they are protected by privilege. Privilege would of course include, as applicable to the circumstances of each case, solicitor and client privilege, litigation privilege or common law privilege if disclosure “…would infringe public interests deserving of protection”, as indicated in McGee, sufficient to establish a common law privilege meeting the Wigmore criteria). (Dupont v. Bailey et al.)

In Cucina Di Paisano’s Inc. v. Paisano’s Italian Garden Café Corp., Master Robinson ordered the plaintiff to deliver a further and better affidavit of documents, including financial statements. Master Robinson held that the plaintiff could redact those portions of the financial statements and general ledgers that were asserted to be not relevant and commercially sensitive. The plaintiff was ordered to identify the basis for redaction and to provide general information regarding redactions so as to allow the defendant to consider its own position on relevance.

In Pinder v. Sproule, the Court engaged in a two-stage analysis, with the first question being the relevance question, and the second question being whether or not the notes were privileged or not. Such an approach is entirely consistent with the wording of Rule 30.02(2) of the Rules of Civil Procedure, as only if the document is relevant is it necessary to go to the question of privilege. When considering privilege a party may argue solicitor and client privilege, litigation privilege or common law privilege. When common law privilege is argued, the criteria established by Professor Wigmore required to find the existence of a common law privilege were also cited in Pinder v. Sproule, as follows:

1. the communications must originate in a confidence that they will not be disclosed;
2. this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
3. the relation must be one which in the opinion of the community ought to be sedulously fostered;
4. the injury that would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. (Dupont v. Bailey et al.)

In Qaddoura et al. v. Walkom et al., the Court granted partial performance on a motion to have the Plaintiff provide unredacted documents that were withheld on the grounds that they were irrelevant to the proceedings. Citing the test from McGee v. London Life Insurance Company Limited, Leitch J. found that the Plaintiff had not proven that the many documents were irrelevant and ordered their production.

In King. v Intact et al, the Court dealt with a premature motion to compel unredacted records relating to a personal injury case. Counsel for the Plaintiff undertook to request records of the Plaintiff's Counsellor on the condition that he could redact anything that was not relevant and advise of the subject matter of the reductions. Newton J. ordered the production of the unredacted records, along with other relevant documents.

In Jones v. I.F. Propco, the Plaintiff was substantially successful on a motion brought by the Defendant to have the Plaintiff produce unredacted documents in relation to a number of refusals. The case was a civil action suit regarding injuries sustained from falling ice. Citing King. v Intact et al and McGee v. London Life Insurance Company Limited, the Court held that some medical records should be produced with limited redactions. Other documents requested by the Defendant were refused.

Law

In Cucina Di Paisano’s Inc. v. Paisano’s Italian Garden Café Corp., 2019 ONSC 3304 (CanLII), Master Robinson ordered the plaintiff to deliver a further and better affidavit of documents, including financial statements. Master Robinson held that the plaintiff could redact those portions of the financial statements and general ledgers that were asserted to be not relevant and commercially sensitive. The plaintiff was ordered to identify the basis for redaction and to provide general information regarding redactions so as to allow the defendant to consider its own position on relevance:

[23] Counsel cited paragraphs 1(j)(i) and 25 of the statement of claim in support of the defendant’s interpretation, which respectively claim an injunction against the defendant dealing with “food products” and state that the defendant promoted recipes that did not originate from it. I was directed to no other pleading references. The defendant’s position is that the “unique recipes and menu items” are being alleged by the plaintiff to be proprietary and stolen by the defendant. The defendant submits that the plaintiff does not dispute relevance, but rather is refusing to produce them on the basis of trade secrets. That submission appears to me to be incorrect. The plaintiff disputes relevance and also raises concerns about producing its proprietary recipes.
[...]

[44] The plaintiff shall accordingly include financial statements and general ledgers with respect to sales figures for 2017 and 2018 in a further and better affidavit of documents, but may redact those portions of the financial statements and general ledgers that the plaintiff asserts are not relevant and commercially sensitive. If the plaintiff does redact, then the plaintiff shall identify the specific basis for redaction and provide general information regarding what has been redacted to allow the defendant to consider its own position on relevance. The defendant may examine the plaintiff regarding the redactions during the above-ordered re-examination.

In Jones v. I.F. Propco, 2018 ONSC 23 (CanLII), the Plaintiff was substantially successful on a motion brought by the Defendant to have the Plaintiff produce unredacted documents in relation to a number of refusals. The case was a civil action suit regarding injuries sustained from falling ice. Citing King. v Intact et al, 2017 ONSC 1647 (CanLII) and McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII), the Court held that some medical records should be produced with limited redactions. Other documents requested by the Defendant were refused:

[48] The defendant requests un-redacted copies of the plaintiff’s certain redacted medical records.

[49] The position of the plaintiff’s counsel is that they have redacted from clinical notes of Amy Biderman and London Intercommunity Health Centre entries that they have concluded are irrelevant to the matters at issue in the claim and thus an un-redacted copy of the clinical notes need not be produced.

[50] The general rule is that relevant documents must be produced to the opposing party in their entirety without any redactions based on a unilateral opinion with respect to relevancy (King v. Intact, 2017 ONSC 1647 at para. 12). In McGee v. London Life Insurance Co., 2010 ONSC 1408, Strathy J. noted at para. 8 that “[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.”

[51] However, in some circumstances, redactions are permissible. For example, in McGee, Strathy J. held at para. 9 that “[t]he 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.” Further, in King, Newton J. noted at para. 12 that “[redactions] are permissible when the specified portion is clearly not relevant and there is good reason why the information should not be disclosed.” Strathy J. at para. 9 of McGee adopted the ruling 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.) as applicable law in Ontario. Lowry J. noted the following para. 13 of Mercer:

[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]

[52] Therefore, permissible redaction requires two elements: the information that is sought to be redacted must be irrelevant and there must be a good reason for its redaction.

[53] There are a number of good reasons why information should not be disclosed. Privilege is one valid reason for redaction (King at para. 12). If the document contains private medical information or private information on familial communications, a good reason for redaction will exist. For example, in Dupont v. Bailey,2013 ONSC 1336, Master Roger permitted redactions of the plaintiff’s psychotherapist’s notes, because if the redacted portions were produced it “would only embarrass and potentially prejudice the plaintiff” and would serve “no purpose in resolving the issues in the action” (para. 25). Lowry J. also observed the following at para. 11 of Mercer:

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. [emphasis added]

[54] Additionally, the Court acknowledged in McGee (para. 14) and Dupont (para. 18) that irrelevant and sensitive medical information may be redacted.
[55] The party seeking to redact the document bears the onus of establishing that redaction is necessary to protect an important interest (McGee at para. 13; King at para. 12).
[56] In this case the plaintiff’s counsel produced for my review the un-redacted copy of the small number of redactions made from the clinical records in issue. I reviewed the four entries which were redacted and conclude that the redaction in relation to what the plaintiff reported March 14, 2016 is appropriate, because the redactions are irrelevant and there is a good reason for the redaction. Save and except for those redactions, the balance of the records must be produced.

In Qaddoura et al. v. Walkom et al., 2018 ONSC 20 (CanLII), the Court granted partial performance on a motion to have the Plaintiff provide unredacted documents that were withheld on the grounds that they were irrelevant to the proceedings. Citing the test from McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII), Leitch J. found that the Plaintiff had not proven that the many documents were irrelevant and ordered their production:

[12] The plaintiff’s counsel has redacted a portion of the records as they “pertained to legal advice regarding the client’s husband, and her husband’s religion”.
[13] I note that defendants’ counsel indicated that if there are any settlement numbers in the records, those could be redacted; however, she took the position that all of the clinical notes and records should be produced because they are relevant to the plaintiff’s emotional state.
[14] The general rule is that relevant documents must be produced to the opposing party in their entirety without any redactions based on a unilateral opinion with respect to relevancy (King v. Intact, 2017 ONSC 1647 at para. 12). In McGee v. London Life Insurance Co., 2010 ONSC 1408 Strathy J. noted at para. 8 that “[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.”

In King. v Intact et al, 2017 ONSC 1647 (CanLII), the Court dealt with a premature motion to compel unredacted records relating to a personal injury case. Counsel for the Plaintiff undertook to request records of the Plaintiff's Counsellor on the condition that he could redact anything that was not relevant and advise of the subject matter of the reductions. Newton J. ordered the production of the unredacted records, along with other relevant documents:

[12] The general rule is that relevant documents must be produced in their entirety without reactions based on a unilateral opinion with respect to relevancy. Reductions are permissible when the specified portion is clearly not relevant and there is good reason why the information should not be disclosed. Privilege may be another valid reason for redaction (See for example, McGee et al v. London Life Insurance Company Limited, 2010 ONSC 1408 and Dupont v. Bailey, [2013] O.J. No. 932). The party seeking redaction bears the onus of establishing that the redaction is appropriate. If the parties cannot agree, the court will determine whether the redaction is appropriate.

[13] With respect to Dr. Woit’s records, the motion is premature. Intact seeks production of the un-redacted records and subject to narrow exceptions, Intact is entitled to the un-redacted records. Whether there will be an attempt to redact records remains to be seen. If that issue arises, then failing resolution amongst counsel, a motion will be appropriate.

[14] The objection relating to the questions concerning injuries arising from car accidents, workplace injuries, or slip and falls is grounded on the fact that there has already been extensive disclosure of all relevant medical information including an OHIP summary and extensive clinical notes and records. The question sought to be answered is more correctly aimed at confirming that the plaintiff has not suffered any other injury in any other car accident, workplace accident, or slip and fall in the three years preceding this car accident. I order that the plaintiff is to answer that question. If that answer discloses other injuries than she must answer any appropriate follow-up questions.

[15] The plaintiff alleges that her injuries prevent her from retraining and reentering the workforce as a bookkeeper. As such, the records relating to a bookkeeping course that she failed to complete in 2003 or 2004 are relevant notwithstanding that this attempted retraining took place about 8 years prior to the accident. Those records, to the extent they are available, should be produced.

In Dupont v. Bailey et al., 2013 ONSC 1336 (CanLII), the Court dismissed a motion to have the Plaintiff in a personal injury suit produce unredacted copies of certain documents on the basis that the redacted portions were irrelevant and if produced would only embarrass and potentially prejudice the Plaintiff while serving no purpose in resolving the issues in this action. Master Roger discussed the precedent in McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII) and the test found in Pinder v. Sproule, 2003 ABQB 33 (CanLII), determining that the redacted portions need not have been disclosed as they met the first exception described in McGee: there was good reason why they should not be disclosed:

[15] The general rule is that relevant documents must be produced in their entirety: a party may not redact portions of a relevant document only because it says those portions are not relevant.[1]

[16] However, that is not the end of the analysis and the general rule is subject to exceptions:

- If portions of a relevant document are clearly not relevant and there is good reason why they should not be disclosed (such as, for example, if the information would cause significant harm to the producing party and in no way serve to resolve the issues at hand in the action) then such portions may be redacted. The party resisting full disclosure has the onus of establishing that the redacted portions contain irrelevant information and that redaction is necessary.

- If the portions redacted from a relevant document are relevant, such portions may be redacted if they are protected by privilege. Privilege would of course include, as applicable to the circumstances of each case, solicitor and client privilege, litigation privilege or common law privilege if disclosure “…would infringe public interests deserving of protection”, as indicated in McGee, sufficient to establish a common law privilege meeting the Wigmore criteria).

[...]

[18] Examples of situations where the first exception might be applicable would include irrelevant and sensitive information contained in medical documents.[2]

[19] In most cases, as indicated in McGee, this is resolved between lawyers. In fact, I would encourage counsel to take all reasonable steps to avoid such a motion. In some cases, depending on the redacted information and personalities involved, by disclosing only to opposing counsel the redacted portions or parts thereof (when this is possible in a meeting between counsel in circumstances where no notes or copies may be made) or by explaining very clearly what was redacted.

[20] In many cases such efforts at clearly explaining why portions were required to be redacted might avoid a motion. Otherwise “…the court has a duty to ensure that relevant information is produced and also to ensure that the process is not being used for oppressive or collateral purposes” and a motion should then be brought. The function of the court on such a motion is to distinguish between redacted portions of a relevant document that are either: (1) relevant and therefore that should be produced; (2) irrelevant but innocuous and therefore that should be produced; and (3) “…information that is irrelevant and very sensitive – sensitive in the sense that the party resisting production would suffer damage or real embarrassment if the irrelevant information were to be disclosed” which may not be produced.[3]The analysis at paragraph 20 of McGee between innocuous and embarrassing irrelevant portions in a relevant document is revealing.

[21] In Pinder v. Sproule, 2003 ABQB 33, 333 A.R. 132, the plaintiff disclosed her psychiatrist’s clinical chart to the defendants, with certain portions blacked-out. The blacked-out portions related to those notes wherein the psychiatrist had recorded his conversations with the plaintiff as to the progress of the plaintiff’s litigation and the plaintiff’s related conversations with her lawyers.[4]

[22] In deciding the motion in Pinder, the Court engaged in a two-stage analysis, with the first question being the relevance question, and the second question being whether or not the notes were privileged or not.

[23] Such an approach is entirely consistent with the wording of Rule 30.02(2), as only if the document is relevant is it necessary to go to the question of privilege.

[24] When considering privilege a party may argue solicitor and client privilege, litigation privilege or common law privilege. In this case, a common law privilege is argued. As they have been cited in many other cases, the criteria established by Professor Wigmore required to find the existence of a common law privilege were also cited in Pinder v. Sproule, as follows:[5]
1. the communications must originate in a confidence that they will not be disclosed;
2. this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
3. the relation must be one which in the opinion of the community ought to be sedulously fostered;
4. the injury that would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

In McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII), the responding party provided copies of some documents to the applicants with portions that had been redacted on the basis that they were irrelevant to the issues before the court on the application. In some cases, entire documents had been redacted, or not produced, on the basis of relevance. In a few cases, redactions had been made for privilege. The applicants did not take issue with redactions for privilege. The Court examined the general rule regarding the production of documents and identified the exceptions to that rule. Strathy J. ordered a party to produce certain documents in unredacted form, finding that the responding party did not meet with any of the exceptions, the Court ordered the documents produced in their entirety:

[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, 139 A.C.W.S. (3d) 644 (S.C.J.) at para. 11 and Guelph (City) v. Super Blue Box Recycling Corp. (2004), 2004 CanLII 34954 (ON SC), 2 C.P.C. (6th) 276, [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, 103 A.C.W.S. (3d) 32 (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), 1999 CanLII 4550 (BC SC), 36 C.P.C. (4th) 395, [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 [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]

[11] In that case, the defendants sought production of an asset purchase agreement that was part of a transaction whereby the plaintiff North American Trust Company had acquired the assets of the other plaintiff, Westlaco Investment Company. One of the assets was the debenture that was the basis of the plaintiff’s claim against the defendants. The defendants asked for production not only of the assignment agreement pertaining to the debenture, but also the entire asset purchase agreement. The plaintiff was only prepared to produce a redacted version of the asset purchase agreement. Lowry J. held, at para. 15, that in order to maintain that position, the plaintiffs would have to establish that the redacted portions “are both clearly irrelevant and that there is good reason why they should not be disclosed.”

[12] I will return shortly to the comments of Lowry J. in the quotation above, regarding corporate minutes.

[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), 31 C.P.R. (3d) 207, [1990] F.C.J. No. 451 (F.C.T.D.); United States Surgical Corp. v. Downs Surgical Canada Ltd., 1981 CanLII 2765 (FC), [1982] 1 F.C. 733, [1981] F.C.J. No. 164 (F.C.T.D.);
(b) personal income tax information: Janhevich v. Thomas (1977),
1977 CanLII 1153 (ON SC), 15 O.R. (2d) 765, [1977] O.J. No. 2227 (H.C.); Collins v. Beach (1988), 24 C.P.C. (2d) 228, [1988] O.J. No. 43 (H.C.);
(c) commercially sensitive financial information: Manufacturers Life Insurance Co. v. Dofasco Inc. (1989), 38 C.P.C. (2d) 47, [1989] O.J. No. 1456 (H.C.); John Labatt Ltd. v. Molson Breweries (1993),
1993 CanLII 3022 (FC), [1994] 1 F.C. 801, [1993] F.C.J. No. 1343 (F.C.T.D.); North American Trust Co. v. Mercer International Inc., above, at paras. 11, 13-16 (S.C.); Bouchard Paradis Inc. v. Markel Insurance Co. of Canada, above;

[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 (CanLII), [1976] 3 W.W.R. 460, 66 D.L.R. (3d) 380 (Alta. C.A.); K.V.L. v. D.G.R., [1993] B.C.J. No. 1662, 39 A.C.W.S. (3d) 424 (S.C.) or irrelevant and sensitive medical information.
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