Docket: CACV2555 Omid Mohagheghdoust v. Hanieh Zad Fallah Farshami, 2014 SKCA 125

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 125 Date: 2014-11-24 Between: Docket: CACV2555 Omid Mohagheghdoust and Hanieh Zad Fallah Farshami Appellants - and - Shaw Cablesystems G.P. and the Ministry of Labour Relations and Workplace Safety of Saskatchewan- Labour Standards Division Respondents Coram: Jackson, Klebuc and Ryan-Froslie JJ.A. Counsel: Omid Mohagheghdoust for the appellants Kyle McCreary for the respondent Appeal: From: Q.B.G. No. 547 of 2014, J.C. of Saskatoon Heard: November 24, 2014

Disposition: Appeal Dismissed (orally) Written Reasons: November 27, 2014 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Madam Justice Ryan-Froslie JACKSON J.A. (orally) [ 1 ] The appellants commenced an action against the respondents to recover damages for personal injuries associated with a claim that the respondents failed to recover lost email messages and electronic property. In the context of that action, the appellants applied by Notice of Application for an order:

a) To recover all emails concerned in Omid’s email accounts by either main internet server(

s) other than the defendant, Shaw Cablesystem, and/or his email accounts provider ;

b) To investigate and inquire into the matter and fact of the emails deletion. Omid is looking for exploring and obtaining detailed process and procedure and history or record of deletion events. (Notice of Application filed in the Court of Queen’s Bench on May 7, 2014) [ 2 ] Given the nature of the relief sought, Shaw Cablesystems G.P. did not appear on the return date.

The Ministry did, however, appear. [ 3 ] In the Court of Queen’s Bench, the Ministry submitted that the appellants’ requests were for the discovery of documents and the discovery of information, and as such their application was premature. [ 4 ] The Chambers judge agreed. He was not persuaded that “directing production of documents earlier than in the normal course” or “asking questions earlier than the time provided [under The Queen’s Bench Rules ]” would be appropriate.

The appellants appeal that decision. [ 5 ] In their Notice of Appeal, the appellants ask for the following relief: 1- ORDER TO APPELLANT’S EMAIL ACCOUNTS PROVIDER (GOOGLE GMAIL) TO RECOVER OR RETRIEVE AND RESTORE ALL EMAILS DESTROYED FROM TWO EMAIL ACCOUNTS: [in the Notice of Appeal, the actual email accounts are provided]; 2- ORDER ANY MAIN SERVER WHO HAS THE CAPACITY, IN CONCERT WITH APPELLANT’S EMAIL TRANSACTIONS, EITHER AT NATIONAL OR INTERNATIONAL LEVEL, OTHER THAN THE DEFENDANT (NOT THE DEFENDANT, SHAW) TO ASSIST WITH SUCH RECOVERY; 3- ORDER AUTHENTICATE DESTROYED EMAILS’ META-DATA; 4- ORDER TO ENABLE THE PLAINTIFFS TO INVESTIGATE AND INQUIRE INTO THE MATTER AND FACT OF THE EMAILS DESTRUCTION OR PERMANENT DELETION TO THE EXTENT OF FULL COLLABORATION OR ASSISTANCE AND PERMISSIONS AND SATISFACTORY PERFORMANCE OR BEHAVIOUR OF ALL PARTIES INCLUDING ALL ORGANIZATIONS OR COMPANIES CONCERNED.

A DETAILED RECORD OF DESTRUCTION OR DELETION EVENTS HISTORY OR LOGS, PROCESS, AND PROCEDURES IS EXPECTED TO BE PRODUCED OR OBTAINED DURING THE INVESTIGATION. [ 6 ] In their factum, the appellants ask for somewhat different relief than that asked for in the Notice of Appeal:

VI1. An order to appellant’s email account provider, Google Inc., to retrieve and recover and restore all emails destroyed from two email account (as indicated) on February 2014 and March 2014. Please include in the order that any main server who has the capacity, in concert with the appellant’s emails transactions, either at national or international level, to assist with such recovery. Please include the emails’ Meta-Data to be authenticated by internet servers or emails account provider: Google Inc. VI2. An order to authenticate existing emails prints or pre-approved authenticity. VI3.

An order for private investigation authorization to the extent of all parties’ full collaboration including the Ministry of Labour Relations- Saskatchewan, Shaw and its associates, and any third party involved in the incident. [ 7 ] In essence, the appellants seek to challenge the Chambers decision by raising matters not previously raised and, in oral argument, by seeking guarantees and assurances that exceed the claim made against the original parties. Further, it would appear that the appellants seek to argue their principal claim in the context of a Chambers application or in an appeal from that decision.

Such a course of action is not permitted under the Rules of either Court. [ 8 ] In this Court, counsel for the Ministry submits that the appeal could be dismissed on several bases: (

i) the appellants seek to appeal an interlocutory order for which leave is required, but was not obtained; (ii) the appeal makes claims against non-parties; and (iii) the Chambers decision is discretionary and no error in law has been demonstrated. [ 9 ] On the face of the above-mentioned materials, the Chambers judge could also have dismissed the application on the basis that the appellants seek relief from a party or parties who were not named in the action, for example, Google Inc.

However, in the interests of preserving a certain measure of latitude to the unrepresented appellants, the Chambers judge refused the application as being premature. [ 10 ] Like the Chambers judge, we find that this appeal is best addressed by dismissing it on a narrow basis. It is abundantly clear that the appellants have not complied with the timelines established by The Queen’s Bench Rules . Thus, it was entirely within the discretion of the Chambers judge to dismiss the appellants’ application as being premature.

The appellants, like any other litigants, are required to follow the procedure and timelines established by the Rules of Court. [ 11 ] For these reasons, the appeal is dismissed. The Ministry does not seek costs, so none are awarded.