May 16, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: February 20, 2015
Heard Before: Justice Rick Leroy
SUPERIOR COURT OF JUSTICE - ONTARIO
ENDORSEMENT ON MOTION
Ms. Tammy Merpaw’s claim is for damages from a trip and fall on April 16, 2003.
The Orders Sought by the defence on this discovery motion are:
An Order requiring Ms. Merpaw to permit the moving party access to the hard drive(s) and to the data of her home computer, IPad, IPhone, and social media accounts by its forensic expert to determine Ms. Tammy Merpaw’s daily level of activity on those devices;
An Order requiring Ms. Merpaw to permit Mr. Scott Hyde to obtain all data relating to her Internet usage, including but not limited to all social media data from Facebook, My Life, and other social media accounts not yet identified, including access to all on-line gambling data between the years of 2006 to the current date;
An Order requiring Ms. Merpaw to preserve and produce all information on her electronic devices, from her social media and other on-line accounts, etc. from 2006 up to the trial of the action;
An Order requiring Ms. Merpaw to execute a consent permitting Mr. Scott Hyde to obtain all data and information from on-line gambling accounts/providers as well as all information from the US Customs and Border Protection Services relating to her entry into the USA between 2006 and the current date;
An Order requiring Ms. Merpaw to request consent from her husband Kevin Merpaw to produce all records of entries by him, or any vehicle he owns, into the USA between 2004 and 2014 and re-entry into Canada;
An Order requiring Ms. Merpaw to produce her banking and credit card records held in her name or held jointly with others from 2008 to current date;
An Order requiring Ms. Merpaw to identify all gambling establishments visited between 2004 and 2014 and to execute a consent permitting those establishments to disclose any and all records of Ms. Tammy Merpaw’s visits to those locations and all records with respect to monies spent and won by Ms. Merpaw in those years at those establishments;
An Order requiring Ms. Merpaw to produce the records from Notman Chrysler, Cornwall, ON;
An Order requiring Ms. Merpaw to attend at an examination for discovery to answer questions relating to the production of the above information.
The analysis involves the synergies of relevance – Rule 30, proportionality – Rule 29.2 and privacy interests.
There are specific claims that can be eliminated summarily. Ms. Merpaw has not had a home computer since 2012 and it was disposed of at the time. Ms. Merpaw confirms Facebook as the only social media provider she uses. She denies online gambling or gambling anywhere but the Akwesasne Casino. There is no evidence to the contrary.
The amount claimed for general and special damages is substantial. Ms. Tammy Merpaw’s claim is that her injuries reduced her enjoyment of life, incapacitated her from sedentary or any employment and she will require third party services to maintain her home and modest lifestyle. Save for a short attempt at sedentary call centre employment in 2005, Ms. Merpaw has not worked gainfully since falling. Ms. Merpaw qualified for Canada Pension Disability after 2005 and reports that the $700 per month benefit is her only independent income source.
Mr. Scott Hyde raises issues about the extent of Ms. Tammy Merpaw’s incapacity and causation. The onset of back pain and the psychological disorder relapse followed the fall by more than two years.
The defence independent medical reports raise issues about Ms. Tammy Merpaw’s actual medical condition as well as the causal connection of her condition, such as it is, to consequence from the fall. The defence requests this relief hoping that the information marshalled in this process resolves the enigmas it perceives in Ms. Tammy Merpaw’s circumstances.
Ms. Merpaw and defence orthopaedic opinions as to her physiologic condition are diametric. To the extent the defence orthopaedic doctor observed clinical symptoms on examination, he refutes causal connection to injury from the fall. The Paitch orthopaedic medical report suggests that the clinical examination results are not consistent with Ms. Tammy Merpaw’s reporting and to the extent the two are compatible, raises issues of aetiology. Ms. Merpaw was diagnosed with fibromyalgia in 2002. Dr. P concludes that Ms. Tammy Merpaw’s current symptoms are overstated and unrelated to the fall. He concluded that Ms. Merpaw’s lower back pain is not causally related to pathology arising from the trip and fall incident and he did not have an orthopaedic anatomic or physiologic explanation for her ongoing stated symptomatology involving her right ankle. He said her self-report of impairment is considerably beyond what is expected based on the injuries.
The defence psychiatric medical report concludes that the aetiology of Ms. Tammy Merpaw’s DSM diagnosis is unrelated to the fall. The defence position is they cannot confidently assess the value of Ms. Tammy Merpaw’s claim, having regard to incongruity between self-report on her side and clinical conclusion and the empirical on the other. Ms. Merpaw asserts short-term memory deficit, an inability to perform basic housework, engage in pre-injury lifestyle, or work at a desk job when she can drive to the casino and back, has the capacity to engage in casino ambience over three hours, play eighteen bingo cards simultaneously and interact through and on social media on electronic devices through the day every day. She says that her only income source derives from CPP disability, yet she was able to acquire a Challenger, enjoy annual winter vacations south and pay bills.
Ms. Tammy Merpaw’s position:
Ms. Merpaw resides with her husband within five kilometers of the Canada/U.S border, ten kilometers of the Akwesasne Mohawk Reserve - Casino and fifteen kilometers from Massena, New York – the campground;
Ms. Merpaw frequents the casino to play bingo and the slots either with her spouse or friends.Ms. Merpaw acknowledges having won two slot pots in 2013 in the amounts of $15,000 and $29,000 gross.The house retains one-third of the gross.She has a casino club card.Ms. Merpaw reports she can sit to play bingo or slots for about one hour before she requires a break.Bingo, slots and likely some computer applications serve to distract her from pain, alleviate stress and pass time;
Ms. Merpaw advises she is exclusive to this casino;
Ms. Merpaw and her spouse have a seasonal site and camper trailer at a Massena campground they visit weekends between May and September;
Ms. Merpaw has used electronic devices since 2006.She has not had a computer since 2012.It stopped working and she discarded it.Her computer devices involve linked IPad and IPhone;
Ms. Merpaw opened a Facebook account in 2007.She confirms she is Facebook exclusive and it is her only social media service.There are ten photographs on her public page.She is in six of the ten and in each she is standing with her cane or sitting.She does not explain the fruit pop frame other than to say she did not put it there.She confirms that the communications showing the stacks of money derived from some other source chained into her account.She did not take the picture of the stacks of money and did not own it;
Ms. Merpaw plays computer games on her devices through the day.They are portable and she can use them when she is lying down or sitting in her recliner.She denies ever sitting in a chair at a desk while engaged with one or the other;
Save for a brief period when her son’s girlfriend used the IPad to search for apartments and employment in 2011, she is the only IPad and IPhone user;
She accesses email with her devices. She communicates with her legal and medical advisors by email;
Ms. Merpaw denies on-line gambling;
Her spouse’s business failed and assigned in bankruptcy in 2005.At discovery in 2011, her spouse was off work and in receipt of WSIB.He returned to work.It is unclear whether the spouses assigned personally.Given that their home is encumbrance free and they remain the owners, personal bankruptcy is unlikely;
Ms. Merpaw acquired a 2011 Dodge Challenger in summer 2013.The car is featured in four of ten posted photographs in her public photo album.There is a coincident communication with a friend on Facebook where she confirms using the casino winnings to pay for the car.She advised that to be an expedient white lie to avoid disclosure of their private financial affairs in the public forum that is the public Facebook wall.On discovery, Ms. Merpaw said she and her spouse traded a 2006 Dakota for the down payment and financed the rest.Her spouse pays the 60 monthly instalments of $560 from one of their joint accounts;
Ms. Merpaw states that all of her bank and loan accounts are jointly owned with her spouse.She denies the existence of any accounts in her name alone.
Surveillance in February and August 2012 depict excursions to the casino consuming over seven and six hours respectively. In February, she was observed playing slots for three hours.
Ms. Merpaw refused to allow access to her Telus records, her Facebook private account, the Challenger loan application and purchase agreement, her club card or casino records, US border return records, the hard drives to her IPhone and IPad, her banking and credit card records.
Relevance; Proportionality; Privacy Interests
A party must produce every document that is relevant to the issues pleaded in the proceeding. Relevance in discovery is broader than at trial. A consideration of relevance begins with the pleadings. A litigant has the initial obligation of disclosing relevant documents in the first instance. There must be some evidence of non-disclosure or of omission from the production and disclosure obligations of the litigant before production will be ordered. The court is required to consider proportionality – Rule 29.2.03, and the evidence must suggest that the benefits of the investigation warrant the costs.
The value of disclosure may be overborne by other values including privacy, access to justice and the fair and efficient use of scarce resources in the administration of justice. The court retains discretion and may refuse disclosure where information is of minimal importance but the search for it might compromise other important interests.
[A motion under Rule 30.06 requires evidence of omission, as opposed to speculation that potentially relevant undisclosed documents exist. The standard of proof is not high to account for the fact that one party has access to the documents and the other does not.
Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Relevance involves two questions. What is the proposition to which the evidence is supposed to be relevant? What is the probative value?
The change in the rules narrowed the availability of document production from the semblance of relevance standard requiring production of any document relating to any matter in issue in the action to any document relevant to any matter in issue in the action. Our broad and liberal approach to disclosure and discovery of relevant information sustains.
The Court can refuse disclosure when the information is of little importance to the litigation and disclosure may constitute a serious invasion of privacy. The balancing considerations were effectively articulated by Southin J.A. in M.(A.) v. Ryan, 1994 when he wrote:
“In considering whether to make an order compelling disclosure of private documents, whether in possession of a party or a non-party, the court ought to ask itself whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether some terms are appropriate to limit that invasion. There need not be a privilege against testimony in the classic sense for this to be a relevant question. By “private documents” I mean documents which are not public documents. I do not limit this question to what might be thought of as personally embarrassing documents.
On the one hand, a person who has been injured by the tort or breach of fiduciary duty of another ought not to be driven from the judgment seat by fear of unwarranted disclosure a sort of blackmail by legal process. If such a thing were to happen, the injured person would be twice a victim.
But, on the other hand, a Mr. Scott Hyde ought not to be deprived of an assessment of the loss he actually caused, founded on all relevant evidence. It would be as much a miscarriage of justice for him to be ordered to pay a million dollars when, if all the relevant evidence were before the Court, the award would be for one-tenth that sum, as it would be for the injured person to feel compelled to retire from the field of battle because of a demand for documents containing intensely personal matters of little relevance.”
Private Facebook Account
Ms. Merpaw is not required to produce the content of the private section of her Facebook account. The burden rests with Mr. Scott Hyde to establish evidence of omission of relevant documents rather than mere speculation. As noted earlier, Mr. Scott Hyde does not have access to this information and is at a disadvantage. The fact of a Facebook account with public and private walls does not entitle a party to gain access to all material placed on the site.
If there are pictures or communications in Ms. Tammy Merpaw’s public forum relevant to the action it is reasonable to infer there is relevant information contained in the private forum – Leduc v. Roman, 2009; Shuster v. Royal and Sun Alliance Co. . That raises the enquiry to more than mere fishing. If relevance is established, the process shifts to proportionality and privacy factors.
In the case at Bar, the public page information is consistent with her testimony and representation to the examining doctors. There is no reason to expect the private page to contain documents that would tend to give more than the content of the public page to enable Mr. Scott Hyde to procure admissions to dispense with formal proof or destroy Ms. Tammy Merpaw’s case, know the case it is to meet, eliminate or narrow issues or avoid surprise at trial.
IPad and IPhone Hard Drives
Mr. Scott Hyde is not entitled to Ms. Tammy Merpaw’s electronic documents stored on her IPhone(s) and IPad. A computer hard drive contains stored data that is neither relevant nor material to a lawsuit and which contains information that is private and confidential and ought not to be produced. Relevant and material information stored on a computer hard drive is subject to production. Only in exceptional circumstances such as when there is convincing evidence that a party is intentionally deleting relevant and material information will the Court order production of the hard drive for examination.
Ms. Merpaw claims disabling chronic pain and depression. She consumes up to ten Oxycodone per day in addition to anti-depressant medications. She uses the IPad and IPhone to access Facebook, Internet and email and generally to communicate with lawyers, family and friends. She says they are always powered on and signed in. She accesses their features while she is recumbent in a reclining chair or prone on the couch or bed.
Having regard to what Ms. Merpaw reports about her limitations, Mr. Scott Hyde perceives anomalies that include her capacity to drive to and from the casino, the campground, her capacity to play bingo with up to 18 cards per game, utilize her IPad and IPhone features and work a slot machine. There is the picture of the 88,000 point Fruit Pop game. Ms. Merpaw denies having ever played that game.
Mr. Scott Hyde articulates the relevance of device hard drives as “Her activity level in terms of her daily usage of her computer, her ability to interact through and on social media, her ability to participate in gambling activity etc. are relevant to Ms. Tammy Merpaw’s ability to be gainfully employed in a sedentary job and to her overall credibility.” Robert Fortin, a person with no computer forensic expertise, in paragraph 22 of his affidavit deposed May 29, 2014 at tab 2 of the Applicant record states “Production of Ms. Tammy Merpaw’s Internet data, as well as all of the information from her Facebook account and other social media which she has participated in through her own personal computer is relevant to determine Ms. Tammy Merpaw’s activity usage of her computer and to assess her overall employability.”
Mr. Scott Hyde’s position, stated by Robert Fortin, is that their forensic analyst requires the device CPUs before they can establish actual activity per day or Ms. Tammy Merpaw’s actual time spent on various websites on each particular day. The defence wants to know how much time was involved in achieving the score of 88,000 on the Fruit Pops game. Mr. Scott Hyde submits that they will be able to establish the length of time Ms. Merpaw dedicates on a daily basis to operating her IPad and Phone. This information is sought to inform an analysis of how much time Ms. Merpaw can work on a computer at a desk, her capacity to focus, concentrate, reason and stay on task.
Ms. Merpaw countered with the affidavit of Steven Rogers, a computer forensics analyst. He discounts the efficacy of such an analysis vis-à-vis Ms. Tammy Merpaw’s work capacity. The scope of his retainer was to identify the kind of information and/or data that can be retrieved from an IPhone or IPad, where the analysis of that data might lead and what types of communications could be retrieved.
He advises that the IPhone and IPad work with the same operating system, performing the same functions and running the same applications. Both come with manufacturer-supplied applications and the ability to download and install third-party applications. Both can take and store pictures, access email, browse the Internet, review documents and take notes. The IPhone can receive text messages, make and receive telephone calls. Text messages recovered from an IPhone will include the date, time, sender, receiver and body of the message while browsing history on both devices is simply a list of the sites visited.
His advice is that the analytical conclusions sought by Mr. Scott Hyde are more elusive than portrayed by Robert Fortin. He confirms that the information stored on an IPad or IPhone may reveal a person’s level of activity on the devices and depending on the type of activity, possibly the length of time of the activity. He states that device applications run until the user specifically terminates the application. Although both devices record browsing history, there will be no definitive time quantification. How long a person visits a website is challenging and not very precise. There are a number of factors that impact on the availability of data such as deletion activity, application settings, removal and re-installation of an application, storage capacity and actual use of the applications.
This is not the first time the forensic value of a CPU has been considered. In Frangione v. Vandongen et al., 2010, defence evidence on the motion was that the only way to quantify computer usage is to examine the contents of the hard drive through a computer forensic analysis. Master Pope summarized the forensic process as follows:
“(a) forensic imaging: To preserve the original hard drive, an exact bit-by-bit copy of the entire physical hard drive is taken by connecting to the drive a device called a “write blocker” with read-only access which is used to prevent anything from being written to it during the imaging process. A copy (working copy) of the forensic image is taken and used for analysis. The forensic image is created using industry standard tools and methodologies (not set out in the letter). Appropriate measures are taken to track and document chain of custody.
(b) forensic analysis: The analysis will reveal the usage of the computer. During the imaging process, the date and time setting of the computer’s internal clock is determined. All conclusions are based on the timestamps of the internal clock. The analysis will encompass an examination of the following: operating system configuration to determine all people who logged into the computer, recent Internet browsing activity including information about the actual websites visited, the date and time of each visit and possibly the duration spent viewing each webpage, unused space in an attempt to recover deleted Internet activity records, e-mail usage, game playing activity, Facebook activity. If the computer is configured in such a way that it records each time it was turned on and off, this information will also be analyzed. Thereafter, the defendant’s Internet usage will be mapped and presented in tabular and graphical forms.
(c) expert report: Upon completion of the forensic analysis, a report will be prepared that will detail the scope of the investigation, the forensic analysis that was carried out and the findings.”
In Desgagne v. Yuen, 2006, Myers J. delineated the information on a CPU to three categories: electronic documents, metadata and Internet browser history.
In Frangione v. Vandongen 2010, the evidence from the forensic analyst was not different from Mr. Rogers. Once the analyst has the CPU, s/he has access to all stored data. He said:
(a) the proposed forensic examination allows the defence unrestricted access to all activities that device user carried out including:
solicitor-client communications with Ms. Tammy Merpaw
e-mail correspondence sent or received from that computer;
calendars stored on the computer;
personal diary entries;
passwords and log-ins for all password protected content.
(b) s/he would be unable to determine with any certainty whether the computer was used at all times when it was turned on; and
(c) the information that s/he will retrieve may be partial and incomplete.
Mr. Scott Hyde’s request for access to Ms. Tammy Merpaw’s electronic documents is speculative fishing. The defence did not identify an electronic document that bears on the work capacity or enjoyment of life issues. The Court cannot lose sight of the underlying principles regarding document production. Myers J. analogized the computer to a filing cabinet at paragraph 20 as follows:
“The documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party’s filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed. (para. 20)”
This analogy was repeated by Master Pope in Frangione. Mr. Scott Hyde has the onus under Rule 30.06 to prove “by any evidence” that Ms. Merpaw failed to disclose a relevant electronic document. The evidence cannot be based on mere speculation. The scope of discovery at the discovery stage is based on relevancy; therefore, the range of evidence acceptable on a motion under Rule 30.06 is not as broad as it was based on the predecessor rules of “semblance of relevance.” Aside from the Facebook issue, Mr. Scott Hyde has not identified any one specific document located on Ms. Tammy Merpaw’s computer that may be relevant. Essentially, Mr. Scott Hyde contends that they are all relevant to what Ms. Merpaw does on a day-to-day basis.
Courts have repeatedly used the analogy that a computer hard drive is the digital equivalent to a filing cabinet. A request to be able to search a party’s filing cabinet in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed – and its digital equivalent should also not be allowed.
The IPhone and IPad CPUs are equivalent to a filing cabinet. There is no evidence of a failure to disclose. It is insufficient to suggest that all documents might be relevant when intrinsically they are not. It is speculative fishing. Ms. Tammy Merpaw’s electronic documents have not been shown relevant.
If I am incorrect in that conclusion, as Ms. Merpaw is the exclusive user of the two devices, third party privacy is not at stake. Ms. Merpaw confirmed she communicates with legal counsel on these devices and asserts privilege.
The particulars of Internet sites visited by Ms. Merpaw does not correlate with and is not a measure of how much time Ms. Merpaw can work on a computer at a desk, or length of functional focus or an assessment of reasoning capacity. I concur with Master Pope’s conclusion regarding the particular Internet sites Ms. Merpaw accesses. For the most part Internet surfing is a mindless distraction. The particular sites are not relevant to the issues in this action for reasons similar to those rejecting the claim for disclosure of the electronic documents.
Ms. Merpaw is not required to produce her computer devices, electronic documents, Internet site records or metadata to Mr. Scott Hyde for forensic analysis. The metadata issue requires a separate analysis from typical electronic documents. The metadata is the time/date stamp rather than content. In applying for the metadata, it is not the content of the documents that is sought but rather information which shows the use to which the party puts her computer. In a personal injury action this information may be required to enable assessment of Ms. Tammy Merpaw’s computer functionality after the injury. All of the recorded information would therefore be relevant.
Myers J. observed that: “In applying for the metadata, it is not the contents of the documents that Mr. Scott Hydes is seeking, rather it is information which shows the use to which Ms. Merpaw puts her computer. Mr. Scott Hydes wish to obtain this information in order to enable them to assess Ms. Tammy Merpaw’s computer functionality after the accident. This is not, therefore, a situation where there exists a repository of documents some of which might be relevant and some not, to which a party wants to gain access. At the level of the metadata, if Mr. Scott Hydes is correct, all of the recorded information would be relevant.”
A forensic analysis of computer usage that is not a search for document content nevertheless allows unrestricted access to all of the electronic documents and Internet sites stored in the computer.
Mr. Scott Hyde’s position is that the metadata on the IPhone and IPad will quantify Ms. Tammy Merpaw’s daily computer usage and is directly relevant to the assessment of damages for loss of enjoyment of life and her ability to work. She is the exclusive device user. There is no need to allocate usage among diverse users.
Ms. Merpaw reports using her IPad and IPhone through the day every day, either sitting in a recliner chair of on a couch, but never sitting in a chair at a desk. She confirmed these devices were “on” through the day whether she was using them or not. She uses these devices for email communications, Facebook, playing games, texting, telephone service and Internet access.
Master Pope in Frangione concluded that the metadata generated by Ms. Tammy Merpaw’s computer was relevant with minimal probative value. In paragraph 67, she analogized the metadata record to a pay stub or record of employment.
“In my view, if there is a document that reveals information relative to the defendant’s testimony about the amount of time he spends on his computer, then that document is relevant to the issues in the action. To use my own analogy, metadata stands in no different light than a record of employment, also known as a pay stub, when it comes to demonstrative evidence. For example, where a defendant testifies that he only worked two out of the last six months, the defendant would routinely produce his record of employment or pay stubs as documentary proof of his testimony. The pay stubs may contain information about the number of days worked, specific days works and hourly rate similar to metadata that contains, for example, information about dates and times when an e-mail was created and sent, or dates and times when a website was accessed.”
To the contrary, Justices Myers in Desgagne and Dorgan in Park v. Mullin,  rejected the relevance of the defendant’s computer usage pattern and daily time spent on the computer to assessment of the defendant’s level of functioning, ability to use a computer or her ability to focus, concentrate, reason, manipulate images and data and stay on task.
The advice from Steven Rogers is that metadata is not necessarily reliable as evidence of activity use. He stated that retrievable metadata on these devices “may” reveal the level of activity on each device and depending on the activity, possibly the length of time of such activity. Metadata records will show evidence of the date and time a page was visited but not the actual length of time the user looked at the page. If the user leaves and returns to the same site, the duration of the visit is not recorded. Once started, the IPhone and IPad applications run until the user specifically terminates, whether or not the device user is engaged in a particular application. Mr. Rogers and the forensic analyst in Frangione confirm that they would be unable to determine with any certainty whether the computer was used at all times when it was turned on and the information that s/he will retrieve may be partial and incomplete.
Both Justices were unable to correlate usage analysis, given the reliability caveats, to computer and cognitive functionality in the workplace. They concluded that evidence of defendant’s cognitive and physical function is effectively gained by assessment of the defendant by those who are expert in those fields, by the examination of witnesses, including the defendant herself.
Both Justices concluded that the information sought by defence was entirely too broad. For reasons in favour of production, where Mr. Scott Hyde was able to narrow the analytical purview to a time of night specific to Ms. Tammy Merpaw’s representations sufficient to identify the connectors between the omitted evidence and the proposition for which it was proffered, see Bishop (Litigation guardian of) v. Minichiello, .
Ms. Tammy Merpaw’s privacy interest in the metadata on her IPhone and IPad is minimal. There is minimal probative value in this data to the issues of enjoyment of life and work capacity. Other than the bald assertion of relevance in the context of the claim, I am unclear on the inferences that can be drawn from usage analysis as depicted by Mr. Rogers. Mr. Scott Hyde psychiatrist did not suggest that Ms. Tammy Merpaw’s computer metadata would assist in assessing her cognitive and computer functionality or ability to work. He did not outline assessment parameters or protocol. There are significant privacy interests at stake in Ms. Tammy Merpaw’s electronic documents and a search for metadata allows access to everything in computer memory.
Ms. Merpaw shall authorize the release of the casino records compiled on her casino card.
Mr. Scott Hyde’s position is that the casino card will archive Ms. Tammy Merpaw’s activities in the casino and document times inside the building, slot activity, bingo activity, expenditures and winnings. The defence submits this information to be relevant to work capacity and enjoyment of life. Ms. Merpaw acknowledges regular casino attendances. She reports the value of participation as distraction from pain and worry.
I agree with the relevance contention, at least in the discovery context. There are alternate inferences relative to enjoyment of life and work capacity to be drawn from information about her casino activities. Ms. Merpaw is entitled to hedonic distraction from pain and depression. The evidence is she is a regular patron and distraction activity may indicate workplace capacity in the form of focus, concentration, reason and ability to stay on task. Proportionality is not an issue. The privacy interest is minimal.
United States Border Records
Ms. Merpaw shall execute and deliver the form the US border authority requires to release its US entry records for Ms. Tammy Merpaw. Ms. Merpaw provided the Canadian return records on file for Ms. Tammy Merpaw. Ms. Merpaw implicitly accepted the relevance of her border crossing activity relative to work capacity or enjoyment of life by producing the record. The US border records close the loop.
Spouse Border Crossing Records
Mr. Merpaw’s border crossing records are not relevant to the assessment of Ms. Tammy Merpaw’s work capacity and enjoyment of life and Ms. Merpaw is not required to solicit his consent to release.
Ms. Merpaw acknowledges frequent visits to the casino and weekend visits to the campground. Border crossing records depicting many crossings is not surprising. But for the implicit acknowledgement of relevancy of Ms. Tammy Merpaw’s border crossing records, I am unclear on how those records bear on Ms. Tammy Merpaw’s work capacity or enjoyment of life.
Vehicle Financing Records/Joint Bank Account Records
Ms. Merpaw shall produce a copy of her part of the vehicle loan application and purchase agreement. Any information regarding her spouse’s payment capacity is to be redacted.
The evidence from Ms. Merpaw is that except for the two-week trial with Startec, she has not worked for pay since the fall. She qualified for Canada Pension disability benefits. If Ms. Merpaw has an income source other than CPP benefits it has to be off the books. Income disclosure for income tax purposes is flagged by CPP. Her husband’s business failed at some point. He was in receipt of WSIB benefits in 2011 but recovered and returned to work. They bought a 2011 Challenger in 2013 and Ms. Tammy Merpaw, rather than exposing their financial circumstances to the world on her public Facebook page, did not contest a suggestion from a friend that she used slot proceeds to pay for it. She reports they traded another vehicle for down payment and financed the rest. Her husband makes the payments. She and her husband take an annual vacation to a southern destination.
The defence views these financial circumstances as enigmatic and suspects the genuineness of Ms. Tammy Merpaw’s actual post fall income representations. The defence posits the relevance of the loan application for the car purchase lies in the application disclosures. Ms. Merpaw wanted the car and if she were ever to disclose the full extent of their finances, it would be the loan application. The lender would require documentary evidence of financial ability to make the payments. Lending institutions rely on institutional evidence of income. That income would be reportable.
From Ms. Tammy Merpaw’s perspective, the loan application has the ability to close the loop and move this file toward settlement. If the application content matches her representations, it is dispositive of that area of dispute. The document is not much different from the pay stub analogy referenced by Master Pope in Frangione. I expect that the loan application involved both spouses. Her husband’s income information is not relevant.
The bank records are not relevant to the issues of Ms. Tammy Merpaw’s work capacity or enjoyment of life and it would be a stretch to assign substance to a suspicion of alternate income source.
Notice of this motion was not served on Mr. Merpaw.
An order under 30.10 should be made only in exceptional circumstances. The Applicant for an order for production of documents from non-parties bears the burden of showing that it would be unfair to make them proceed to trial without production of the documents. Considerations include:
the importance of the documents to the litigation;
the position of the non-party with respect to production;
the availability of the documents or their informational equivalent from some other source which is accessible to the moving party;
the relationship of the non-party from whom production is sought to the litigation and the parties to the litigation.Non-parties with an interest in the subject matter of the litigation and whose interests align with the party opposing production are more susceptible to a production than a true stranger to the litigation.
This component of the motion fails under the first consideration.
Ms. Tammy Merpaw’s evidence is that she does not own a bank account in her name alone. She and her husband share joint accounts. Mr. Scott Hydes argue that access to the joint accounts may help solve the perceived enigma in Ms. Tammy Merpaw’s financial circumstances and lifestyle. There may be evidence of an undeclared income source.
There is no evidence of an independent income source for Ms. Tammy Merpaw. Ms. Tammy Merpaw’s explanations were reasonable and do not raise veracity questions. The defence discernment is speculative and the demand is a fishing initiative. If Ms. Merpaw had another income source, her CPP disability benefits would be withdrawn. She continues to receive benefits.
Accordingly Ms. Merpaw shall:
Execute and deliver a consent authorising the Akwesasne Casino to disclose all of their records as to Ms. Tammy Merpaw’s visits to the casino and all records with respect to money spent and won by Ms. Merpaw between 2004 and 2014 to Mr. Scott Hyde.Mr. Scott Hyde to bear the disbursements involved with the casino;
Produce to Mr. Scott Hyde the loan application and purchase agreement for the Challenger, redacted to exclude any reference to her spouse’s information;
Execute and deliver the consent that authorizes the US Customs and Border Protection Services to release all information they have relating to her entry to the US between 2004 and 2014 to Mr. Scott Hyde. Mr. Scott Hyde to bear the disbursements involved with the Border Protection Services; and
Attend at an examination for discovery to answer questions relating to the production of this documentation.
The remaining demands are dismissed.
Mr. Scott Hyde shall deliver the fruits of these enquiries to Ms. Merpaw counsel on receipt.