Date: 20060302
Docket: T-2241-95
Citation: 2006 FC 280
BETWEEN:
MARGARET HORN
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
LUTFY C.J.
[1] By order dated November 10, 2005, Justice Hugessen, as case management judge, directed the plaintiffs to ask Roger Obonsawin ("Mr. Obonsawin") to produce the books and records he has in respect to the financial operations of the O.I. group of companies (the "O.I. Group") for 1995 and 1996. Mr. Obonsawin and the O.I. Group are not parties to this action.
[2] By order issued the same day, Justice Hugessen allowed the defendant's motion for leave to examine Mr. Obonsawin pursuant to Rule 238 of the Federal Courts Rules, and ordered that the examination take place on or before November 30, 2005.
[3] Mr. Obonsawin attended for his examination on November 22, 2005. Regarding the documents referred to in Justice Hugessen's order, Mr. Obonsawin's counsel advised that: "Mr. Obonsawin is not prepared to produce those documents at this time".
[4] On December 29, 2005, in cross-examination by the defendant on Mr. Obonsawin's affidavit affirmed on December 9, 2005, he stated:
Well, I've always questioned the reason for wanting to access those documents. [...] The reason for the request you make, the privacy concerns I have. [...] You wanted more, always want more information, and information about our individual clients, we feel privacy is required.
[emphasis added]
[5] On January 6, 2006, Justice Hugessen ordered that:
1) Under reserve of objections to such production, Mr. Obonsawin or Ms. Irwin as representatives of the O.I. group of companies shall, on or before January 12, 2006, produce for examination by representatives of the defendant Crown the financial statements for the O.I. group of companies for the years ended January 31, 1993, and January 31, 1994, together with the source documents provided to and relied upon by the accountant who prepared those statements and shall thereafter submit to examination for discovery on such statements and documents at a date to be fixed by counsel or in default of agreement to be set in an order to attend.
2) Similar provisions shall apply with respect to financial statements and supporting documents of the O.I. group of companies for the year ended January 31, 1995, which are to be produced for inspection no later than January 31, 2006.
3) The financial statements and supporting documents for the year ended January 31, 1996, shall be produced for inspection as soon as possible.
[...]
[6] On January 19, 2006, counsel for Mr. Obonsawin filed a notice of appeal in respect of Justice Hugessen's order of January 6, 2006. A notice of discontinuance of this appeal was filed on February 24, 2006.
[7] Some documents were delivered to counsel for the defendant pursuant to Justice Hugessen's order of January 6, 2006. However, certain information was "whited out": specifically, the names of placement organizations (the "Clients") to which the O.I. Group provides consulting services and leases employees.
[8] On February 8, 2006, I assumed the duties of case management judge in this proceeding.
[9] On February 17, 2006, Mr. Obonsawin sought to have adjudicated the issue of whether production of the documents with the Clients' names whited out complied with Justice Hugessen's order of January 6, 2006.
[10] Counsel for Mr. Obonsawin submitted that the names of the Clients were properly whited out on the basis that they were not relevant. In the alternative, counsel advised that Mr. Obonsawin had given an undertaking to the Clients not to disclose their names.
[11] Counsel for the defendant took the position that if a document is relevant, it must be made available for inspection in its unedited form.
[12] At no point have I understood the plaintiffs to dispute the relevance of the documents.
[13] In the course of two conference calls, on February 21, 2006 and February 24, 2006, the Court granted leave to Mr. Obonsawin to supplement the evidentiary record, if he so wished, regarding the nature of the undertaking given to the Clients.
[14] In her affidavit affirmed on February 24, 2006, Ljuba Irwin ("Ms. Irwin") deposed that she is the Chief Executive Officer of the companies in the O.I. Group. As such, she deposed that the O.I. Group: "... has given an undertaking to each of its clients that it will keep their names confidential and will not disclose those names to any third party without their consent". On February 27, 2006, the defendant cross-examined Ms. Irwin on her affidavit.
[15] Counsel have agreed that, for purposes of adjudicating the issue of the whiting out of the Clients' names in the context of Justice Hugessen's January 6, 2006 order for production, the record before me shall consist of the following: (a) page 10 of the transcript of Mr. Obonsawin's examination on November 22, 2005, at tab 2 of Mr. Obonsawin's responding motion record filed on January 4, 2006; (b) the plaintiffs' motion record filed on December 1, 2005; (c) page 39 of the cross examination of Mr. Obonsawin on December 29, 2005; (d) the joint supplementary motion record filed on February 23, 2006; and (e) the transcript of Ms. Irwin's cross examination on her affidavit on February 27, 2006 and the exhibits to that cross examination, filed on February 28, 2006.
[16] The sole issue for determination is the disclosure of the Clients' names. I am satisfied that I need not review the Clients' names in order to properly adjudicate the issue.
[17] With respect to whiting out the Clients' names on the basis that they are not relevant, I continue to be of the view expressed in GlaxoGroup Ltd. v. Novopharm Ltd., [1996] F.C.J. No. 1423 (QL) (T.D.) at paragraph 17: if a portion of a document is relevant, the unexpurgated version of that document must be made available for inspection, unless the parties agree otherwise. Counsel provided no relevant case law contrary to Glaxo and in support of Mr. Obonsawin's position.
[18] It does not, in my view, lie in the mouth of a non-party to a proceeding to say what is or is not relevant as between the parties where the information in issue has been ordered to be disclosed. Also, Mr. Obonsawin's submission that the defendant's interest in the names of the Clients only arose recently is answered by the difficulty the defendant has had over several months in obtaining the documents in issue.
[19] With respect to the undertaking to the Clients, the exhibits to Ms. Irwin's cross examination - including the placement agreements with two Clients, as well as the plaintiffs' employment contracts which governed their placements with those Clients - do not speak to any such undertaking. The name of the Client in this proceeding is disclosed. The record before the Court includes no evidence that other Clients refused to consent to the disclosure of their names.
[20] Upon review of the transcript of Ms. Irwin's cross examination, and keeping in mind the bald assertions by Mr. Obonsawin with respect to his "privacy concerns ... about our individual clients", above, paragraph 4, and by Ms. Irwin in her affidavit, above, paragraph 14, I am not satisfied, on the balance of probabilities, that the evidence establishes an undertaking to the Clients of non-disclosure of their names.
[21] Even if I am wrong in this regard, I cannot conclude than any such undertaking could, in law, enable Mr. Obonsawin or Ms. Irwin to avoid compliance with Justice Hugessen's order of January 6, 2006.
[22] In my view, Mr. Obonsawin and Ms. Irwin have fallen far short of establishing the exceptional situation warranting deviation from the general rule of unedited documentary disclosure: Glaxo, above, at paragraph 17.
[23] Accordingly, I am of the view that Justice Hugessen's order of January 6, 2006 requires the production of the documents in their unedited form.
[24] The Court, in an effort to resolve the issue amicably and expeditiously, raised the possibility of the issuance of a confidentiality order. The defendant prepared a draft confidentiality order and continues to be open to the issuance of such an order. The plaintiffs did not oppose the issuance of such an order. Mr. Obonsawin, through his counsel, saw no advantage to a confidentiality order and proffered no consent to such an order.
[25] Accordingly, an order will issue (a) dismissing Mr. Obonsawin's objection to production of the unedited versions of the documents referred to in Justice Hugessen's order of January 6, 2006, (b) requiring Mr. Obonsawin or Ms. Irwin to comply with Justice Hugessen's order of January 6, 2006 on or before March 7, 2006, and (c) requiring Mr. Obonsawin or Ms. Irwin to make themselves available for further oral examination on March 9, 2006 and, if necessary to complete the questioning, on March 10, 2006.
[26] The parties shall have leave, on short notice prior to March 7, 2006, to submit to the Court for its approval a draft confidentiality order on terms agreeable to Mr. Obonsawin.
"Allan Lutfy"
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