Court of Appeal Decision of the Week

Privacy & Disclosure: ‘Antunes’ or ‘Halliday’?

Case: Este v. Blackburn, 2016 BCCA 496 (CanLII)

Keywords: Disclosure; Defamation; Wong v. Antunes 2009 BCCA 278 (CanLII); Halliday v. McCullough (1986) 1986 CanLII 1004 (BC CA); Supreme Court Civil Rules, BC Reg 168/2009

Synopsis:

This proceeding arises in the context of a family dispute. Ms. Este is plaintiff in both a property and defamation action. In the defamation action, Ms. Este claims her mother, Mina Esteghamat-Ardakani, her mother’s common-law husband, Mr. Blackburn, and brother, Francis Amir Este, defamed her in letters or emails to various persons, including governmental and quasi-governmental authorities. Ms. Este further claims the defendants conspired to carry out a “campaign of character assassination through the widespread publication and dissemination of defamatory statements”. She seeks general, special, punitive and aggravated damages.

For purposes of this appeal, Ms. Este asserts that Mr. Blackburn, “acting voluntarily and upon his own initiative”, went to the West Vancouver Police Department (“WVPD”) and made false statements to a Detective Harding, to the effect that:

(a) the Plaintiff had deliberately set the fire that destroyed her home; and

(b) the Plaintiff was under investigation by the Canada Revenue Agency for tax evasion, as a result of a report made by him to Canada Revenue Agency, and that the Plaintiff had set the fire in order to destroy documents evidencing her guilt of that crime. (See para. 3).

Ms. Este applies to a Master for an order that the WVPD make available a transcript of their interview with Mr. Blackburn for use in the civil proceedings.

The Master grants an ‘Antunes’ order (as in Wong v. Antunes 2009 BCCA 278 (CanLII)) directing WVPD to determine which documents or portions of documents were likely to be privileged or otherwise prejudicial. The balance to be provided to the plaintiff.

Mr. Blackburn appeals, preferring a ‘Halliday’ order (as in Halliday v. McCullough (1986) 1986 CanLII 1004 (BC CA)), under which his lawyer would redact from the transcript any content considered to be irrelevant. Following proceedings before the Master, circumstances changed such that the protection of criminal process is no longer necessary for Mr. Blackburn – taking the ‘Antunes’ order out of the equation.

Nonetheless, on a balancing of relevance and privacy interests, the Court of Appeal orders Mr. Blackburn to disclose the transcript document without redactions. The Court is not persuaded it should depart from the general rule that the entire document should be produced.

Importance:

Rule 7–1(1) of the Supreme Court Civil Rules, BC Reg 168/2009 requires the disclosure by a party of all documents “that could, if available, be used by any party of record at trial to prove or disprove a material fact” and all other documents to which a party intends to refer at trial. (See para. 18).

The Court of Appeal found the document production process under the new Supreme Court Civil Rules involves two steps:

  1. the initial production required under Rule 7–1(1); and
  2. a second application, which may be brought under Rule 7–1(11) by a party seeking disclosure of documents that “relate to any or all matters in question in the action”. (See at para. 18).

Citing Gorse v. Straker 2010 BCSC 119 (CanLII) at paras. 25-34; Frenette v. Metropolitan Life Insurance Co. 1992 CanLII 85 (SCC) at p. 666; M.(A.) v. Ryan 1997 CanLII 403 (SCC) at para. 38, the Court of Appeal stated that, in making such a ruling, the Court must ‘balance’ the need to protect privacy interests in irrelevant material on the one hand, and the need to ensure “adequate discovery as a facet of the administration of justice” on the other.

The Court noted that, with respect to ‘Halliday’ orders, the ‘balance’ is reflected in the principle that the order is not granted as of right:

It is not enough that the information may be “embarrassing” to a party, or that it contain material that is private or confidential. The onus – not a heavy one – is on the person seeking to limit disclosure, to adduce evidence that satisfies the court that the document in question is likely to be irrelevant to the proof of a material fact. (See para. 21).

In the present case, the Court of Appeal found the question of relevance weighed heavily in Ms. Este’s favour – one of the “pillars” of Ms. Este’s defamation claim was the statement Mr. Blackburn gave to WVPD. For the Court of Appeal, this document was “obviously” relevant to proof of the alleged slander: “It would be odd indeed for a trial judge in a defamation action to have before him or her only a redacted record of an alleged slander”. (See para. 22).

The Court rejected Mr. Blackburn’s assertion his privacy should be protected by the ‘Halliday’ order. For the Court of Appeal, it was “difficult to imagine” how Mr. Blackburn could have an expectation of privacy in his statement to WVPD. (See para. 24).

As such the Court of Appeal replaced the Master’s order with an order that Mr. Blackburn, through his counsel, must deliver the unredacted document received from the WVPD to Ms. Este or her counsel forthwith. (See para. 25).

Counsel for the Appellant: Daniel Burnett, Q.C. (Owen Bird Law Corporation, Vancouver)

Counsel for the Respondent: Paul Hildebrand (Lindstone & Company, Vancouver) and Jeff Scouten (Hakemi & Ridgedale LLP, Vancouver)

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Posted: Wednesday, January 11, 2017