Omorogbe v Saskatchewan Power Corporation, 2022 SKCA 116

Court of Appeal for Saskatchewan Docket: CACV3947 Citation: Omorogbe v Saskatchewan Power Corporation , 2022 SKCA 116 Date: 2022-10-11 Between: Fredrick Omorogbe Appellant (Plaintiff) And Saskatchewan Power Corporation Respondent (Defendant) Before: Jackson, Leurer and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Tholl On appeal from: Regina, QBG 787 of 2017 Appeal heard: September 8, 2022 Counsel: Luke M. Day for the Appellant Amy D. Banford for the Respondent Leurer J.A. I.

INTRODUCTION [ 1 ] The Queen’s Bench Rules [ Rules ] require a party to an action to disclose to the other parties involved in the litigation all relevant documents and, unless a proper basis exists for withholding production, to make those documents available for review. At issue in this appeal is when a litigant may redact information from an otherwise producible document. II. BACKGROUND A. The dispute [ 2 ] This appeal arises out of a lawsuit between Fredrick Omorogbe and Saskatchewan Power Corporation [SaskPower]. On March 31, 2015, Mr. Omorogbe was dismissed without notice from his employment with SaskPower.

He subsequently commenced an action against it. [ 3 ] On September 10, 2015, SaskPower received a bomb threat, which it then reported to the Regina Police Service [RPS]. SaskPower was asked by the RPS to provide names of current and former employees who may be unhappy with the company. That same day, one SaskPower employee sent an email to another SaskPower employee [Email] identifying Mr. Omorogbe as a person who may be of interest to the RPS in its investigation of the bomb threat. [ 4 ] The RPS did in fact investigate Mr. Omorogbe as a person of special interest in relation to the bomb threat.

This investigation was eventually terminated, and he was never charged with an offence. [ 5 ] Mr. Omorogbe initiated his lawsuit against SaskPower after these events. In his statement of claim, he alleges that his dismissal was wrongful. He also advances claims based in malicious prosecution and breach of privacy rights. Among his specific allegations is that SaskPower “knowingly and maliciously sought to ruin his reputation and career by initiating an unsubstantiated criminal investigation against him”. [ 6 ] In its statement of defence, SaskPower denies all of Mr. Omorogbe’s allegations.

It also specifically pleads that Mr. Omorogbe was terminated for cause and, in any event, that he failed to reasonably mitigate his damages. [ 7 ] As part of its obligation to give documentary discovery, SaskPower has provided Mr. Omorogbe with a copy of the Email, but has redacted information from it. The material parts of the Email state as follows: Derek, I have a name that you should probably give to the RPS as someone who should be considered. His name is Fredrick Omorogbe and he does have an accent. This individual was terminated by SaskPower and is an immigrant from somewhere in Africa.

He was quite angry about his termination and it is possible that in his mind he is linking it to some kind of discrimination or prejudice against him because of his ethnicity. He reported to Ron Bend in Power Production. You may have been involved in the investigation that resulted in his termination. He has been engaging in communications with Mike Marsh, John Phillips and others asking for reasons for his termination even though these have been explained to him. Also Shannon Rayner (who reports to John) has handled a number of FOI (Freedom of Information) requests from him.

He has not uttered any threats against anyone at SaskPower that I am aware of and of course it is more likely than not that he had nothing to do with the incident. However [redacted text] came to me with concerns (even before we were aware that the threat came from someone with an accent).

I also suggest that it would be a good idea to give his name and photo to the commissionnaires [sic]. If you have any questions please contact Shannon or myself. Rachelle (Emphasis added) [8] It is common ground that the text redacted from the Email is the name of a SaskPower employee. Mr. Omorogbe has beenattempting, by various means, to obtain an unredacted copy of the Email or the name of the employee that was removed from it. [9] Mr. Omorogbe first sought a complete copy of the Email through proceedings pursuant to The Freedom of Information andProtection of Privacy Act, SS 1990-91, c F-22.01 [FOIPP].

Following a report from the Office of the Saskatchewan Information andPrivacy Commissioner (Saskatchewan Power Corporation (Re), (Sask IPC)), SaskPower maintained its position thatthe redaction was proper. Mr. Omorogbe appealed from SaskPower’s decision to the Court of Queen’s Bench under s. 57 of FOIPP. Hisappeal was dismissed by a judge of that Court sitting in Chambers: Omorogbe v Saskatchewan Power Corporation (9 October 2018)Regina, QBG 394 of 2018 (Sask) [FOIPP Decision]. [10] Mr.

Omorogbe next sought disclosure of an unredacted copy of the Email, or the name removed from it, by seeking an ordercompelling SaskPower to fulfil its obligation to make disclosure of documents and information in accordance with the Rules. Hisapplication came before the same Court of Queen’s Bench judge in Chambers who had made the FOIPP Decision. The Chambers judgedismissed Mr. Omorogbe’s application: Omorogbe v Saskatchewan Power Corporation (15 December 2021) Regina, QBG 787 of 2017(Sask) [Chambers Decision]. B.

The Chambers Decision [11] SaskPower advanced two reasons for why it should not be required to deliver the original copy of the Email. First, it took theposition that issue estoppel prevented Mr. Omorogbe from relitigating the matter, after his entitlement to the redacted name had beendecided against him in the FOIPP Decision. Second, it said that the redacted information was irrelevant in the context of his lawsuit. [12] The Chambers judge rejected SaskPower’s first argument.

She observed that the issue in the FOIPP Decision had been“whether FOIPP required SaskPower to disclose the witness’s name or identifying information”. She found that this was a “differentquestion” than “whether The Queen’s Bench Rules require disclosure” of an unredacted copy of the Email (Chambers Decision at para27). No appeal is taken by SaskPower from this determination. [13] Having concluded that issue estoppel does not apply, the Chambers judge turned to the question as to whether the Rules requirethe disclosure of the redacted name.

She quoted from several authorities, including PCL Construction Management Inc. v Expocrete, anOldcastle Company, Oldcastle Inc., 2021 SKQB 76, 63 CPC (8th) 229 [PCL Construction], as follows (at para 21): [44] While there are circumstances which may justify partial production or redaction of documents, they are the exception to the rule.The party proposing redacting has the onus of showing both that the portions redacted are irrelevant and that there is a real likelihood ofserious harm from their disclosure that cannot be addressed by the usual protections of the implied undertaking rule in Rule 5-4.

So forinstance, personal health or tax information of non-parties may be redacted if it is irrelevant to the issues in dispute. (Emphasis added in the Chambers Decision) [14] She noted that, under Rule 5-6(1)(

b) of the Rules, each party must “disclose all documents relevant to any matter in issue in theaction”. She reasoned that she “must determine whether the [redacted name] is relevant to a matter in issue in the litigation” (at para 28).After an analysis of the pleadings, the Chambers judge concluded on this issue by stating that she did “not find any relevance ormateriality in the name of the witness” (at para 38). On this basis, she dismissed Mr. Omorogbe’s application. III. ISSUES [15] Mr. Omorogbe appeals from the Chambers Decision.

He argues that, by quoting from paragraph 44 of PCL Management, theChambers judge identified the correct test for determining whether a party may redact information from an otherwise producibledocument. He says, however, that she later did not apply it. For its part, SaskPower maintains that the Chambers judge committed no errorin her analysis. [16] The issue of when and how a redaction from an otherwise producible document is permitted is a matter of first instance in thisCourt. It is, therefore, appropriate to resolve Mr. Omorogbe’s appeal by answering the following questions: (

a) What is the correct test to determine when information may be redacted from a producible document? (

b) What is the procedure to follow when a party has decided to assert that part of a producible document is properly redacted? (

c) Did the Chambers judge identify and apply the correct test? (

d) Applying the correct test, was SaskPower’s redaction proper? IV. ANALYSIS

A. What is the correct test to determine when information may be redactedfrom a producible document? [17] This question has not, so far as I am aware, previously come before this Court. I find it helpful to situate my analysis of itwithin the context of the Rules. I will then consider the case law. Following this, I will identify the test that should be applied in thisprovince when a party seeks to redact information from a producible document. 1.

The Rules [18] The obligation of a party to provide disclosure and production of documents arises out of the operation of Rules 5-5 and 5-6.Rule 5-5(1) requires every party to an action to “serve an affidavit of documents on each of the other parties”. Rule 5-6 deals generallywith the required contents of the affidavit of documents. Material to this appeal are the requirements that a litigant “disclose all documentsrelevant to any matter in issue in the action” (Rule 5-6(1)(b)) and that it “specify which of those documents, if any, the party objects toproduce and the grounds for the objection” (Rule 5-6(2)(b)).

In relation to those documents for which there is no objection to produce, theaffidavit of documents must specify where and when the documents may be inspected (Rule 5-6(2)(c)). [19] Taken together, these rules distinguish between the disclosure and production of relevant documents. This was explained inSpencer v Canada (Attorney General), 2000 SKCA 96, [2001] 7 WWR 476, as follows: [13] … The obligation to disclose and the obligation to produce are two distinct obligations. The obligation to disclose is the obligationto make known the existence of a document.

The obligation to produce is the obligation to make that document available to the adverseparty unless a proper basis exists for withholding production. (Emphasis in original) [20] Although this description was offered in relation to a previous generation of the Rules, it remains the law in this jurisdiction. Inthis case, there is no dispute that the Email is a document that is both disclosable and subject to production by SaskPower.

The issue iswhether a portion of this producible document was properly redacted by SaskPower before its production. [21] With this brief analysis in hand, I turn to a review of the case law. 2. Case law [22] The only case referred to by either party as touching on the power of a litigant to make a redaction from an otherwiseproducible document is PCL Construction. That decision rests on the foundation of several others.

I will consider those cases, and othersthat have followed them, before returning to discuss PCL Construction. [23] North American Trust Co. v Mercer International Inc. (1999), (BC SC), 36 CPC (4th) 395 (BCSC) [NorthAmerican Trust] involved a dispute over whether a party was required to produce more than parts of a document which related to the saleof the debentures which were at issue in the case.

After an examination of the British Columbia rules of court, as well as case law,Lowry J. (as he then was) determined that “litigants have been relieved from disclosing the whole of a document related to a matter inquestion where, but only where, the part withheld has been clearly not relevant to the issues and, because of its nature, there has been goodreason why that part should not be disclosed” (at para 11, emphasis in original).

He saw from previous cases that the good reason not todisclose the whole of a document might be “apparent in the private nature of the affairs of a company recorded in the minutes of itsdirectors’ meetings, or the personal sensitivity of a person’s medical records, diary notations, or familial communications” (at para 11).Justice Lowry then summarized his conclusion as follows: [13] Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may notbe 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 byits nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure thatwill 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 createundue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimatepurpose in resolving the issues. [24] The second case relied upon in PCL Construction is McGee v London Life Insurance Company Limited, 2010 ONSC 1408, 86CCLI (4th) 86 [McGee]. In that matter, defendants to a class action gave production of redacted copies of the minutes of a corporation’sboard of directors and other similar documents.

The plaintiffs sought an order compelling production of unredacted copies of what hadbeen produced. In considering this request, Strathy J. (as he then was) stated that it was “impermissible for a party to redact portions of arelevant document simply on the basis of its assertion that those portions are not relevant” (at para 8). Instead, he found that the “whole ofa relevant document must be produced except to the extent it contains information that would cause significant harm to the producingparty or would infringe public interests deserving of protection”.

He adopted “as applicable in Ontario”, the passage that I have quotedfrom paragraph 13 of North American Trust (at para 9).

In doing so, Strathy J. added emphasis to the words from it, that in “controlling itsprocess, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose partof a document that could cause considerable harm but serve no legitimate purpose in resolving the issues”, thereby suggesting that theonus resting on a party seeking to make a redaction was a high one. [25] After quoting further from North American Trust, Strathy J. reiterated that irrelevance alone is not a sufficient ground on whichto withhold parts of a document, stating that the party seeking to do so bears the additional onus of “establishing that redaction isnecessary to protect an important interest” (at para 13).

He then provided a non-exhaustive list of examples of what might constitute animportant interest justifying a redaction (at paras 13–14): (

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., (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), (ON SC), 15 O.R. (2d) 765, [1977] O.J. No. 2227(H.C.); Collins v. Beach (1988), (ON SC), 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), (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. MarkelInsurance Co. of Canada, above; … (

d) records of a purely private and personal nature and not relevant to the issues, such as notes between parties: Jervis Court DevelopmentLtd. v. Ricci, [1992] B.C.J. No. 2932 (S.C.) and personal diaries: Lazin v. Ciba-Geigy Canada Ltd., 1976 ALTASCAD 58 ,[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.) orirrelevant and sensitive medical information.

As can be seen, the last set of examples of an interest justifying a redaction echoes several mentioned in North American Trust. [26] With respect to the specific documents at issue before him, Strathy J. recognized that “corporate minutes, like a personal diary,may contain some information that is irrelevant but innocuous and some information that is irrelevant and very sensitive – sensitive in thesense that the party resisting production would suffer damage or real embarrassment if the irrelevant information were to be disclosed” (atpara 20).

However, the redacting party had “identified no aspect of any of the documents at issue that gives rise to an interest requiringprotection, other than the general interest that every company would have in the confidentiality of minutes of board and committeemeetings and other corporate records”. More specifically, he found that nothing had “been identified that could be in any way harmful tothe commercial interests of [the party who made the redaction] or that would cause embarrassment or prejudice to any third party” (atpara 21).

For this reason, the documents were ordered to be produced in unredacted form. [27] Both North American Trust and McGee have been followed many times in other cases in British Columbia and Ontario. Ofnote is Este v Blackburn, 2016 BCCA 496, 93 BCLR (5th) 326 [Este]. In that case, the plaintiff had successfully applied for an ordercompelling the defendant to disclose a formerly redacted copy of a transcript of a police interview relating to an incident that was relevantto the action.

Justice Newbury stated, before referring to many cases, including both McGee and North American Trust, that “[g]enerallyspeaking, when a document is listed by a party without reservation, it must be disclosed in its entirety” (at para 19). [28] As well, trial courts of the Yukon and Manitoba have resolved disputes over redacted documents by applying tests derived fromthe same body of precedents. In Cobalt Construction Inc v Parsons Inc, 2021 YKSC 31 at paras 24–25, the court followed NorthAmerican Trust and Este.

In WSIB Investments (Infrastructure) Pooled Fund Trust et al. v Plenary Group (Canada) Ltd et al., 2022MBQB 145, the court referred to McGee and several other cases to establish three “governing principles” (at para 25): • As a general rule, relevant documents must be produced in their entirety without redactions made unilaterally by the producing party. • Redactions may be justified when the specified portion is clearly irrelevant and the redactions are necessary to protect an importantinterest or prevent significant harm. • Where redaction is contested, the onus is on the party requesting the redaction to establish, with evidence, the irrelevance and theexistence of a sufficiently important interest or that significant harm will result. (Footnote omitted) [29] In O.I.

Group of Companies v Canada (Minister of National Revenue), 2006 FCA 234 at para 22, [2006] 5 CTC 60, Noël J.A.(as he then was) referred to North American Trust, as well as several other authorities, for the proposition that “where a document hasbeen found to be relevant and has been ordered to be produced, … it will have to be produced in its entirety”. One of the cases that herelied on was Fougère v Acadia Drug

(1969) Ltd. (1993), (NB KB), 206 NBR (2d) 1 (QB), which reached the sameconclusion, but without reference to the line of cases I have reviewed. [30] Having examined these cases, I turn to discuss PCL Construction. It involved a claim for breach of contract and negligentmisrepresentation related to the construction of Mosaic Stadium in Regina. PCL Construction was the general contractor of the stadium.Prior to being selected, it had entered into discussions with Expocrete about supplying precast concrete bleachers.

However, the twocompanies did not reach agreement on a supply contract, and PCL Construction alleged that it was forced to find another supplier at ahigher cost. This spurred it to launch its claim against Expocrete. As part of the discovery process, PCL Construction produced a redactedcopy of its estimate books. Expocrete applied for an order compelling PCL Construction to produce the complete document. [31] Justice Robertson agreed with Expocrete’s understanding that, under Rule 5-6(1)(b), “once a document is accepted as relevant,the norm is to produce the entire and unredacted document” (at para 41).

Although quoted earlier in these reasons, it is helpful to againreproduce his conclusion as to when a party may give production of a redacted copy of an otherwise relevant and producible document: [44] While there are circumstances which may justify partial production or redaction of documents, they are the exception to the rule.The party proposing redacting has the onus of showing both that the portions redacted are irrelevant and that there is a real likelihood ofserious harm from their disclosure that cannot be addressed by the usual protections of the implied undertaking rule in Rule 5-4.

So forinstance, personal health or tax information of non-parties may be redacted if it is irrelevant to the issues in dispute. (Emphasis added) [32] The evidence in PCL Construction was that the information redacted from the documents was “irrelevant to the litigation and

commercially sensitive”. However, Robertson J. concluded that simply stating this “does not make it so”. He found that this evidence was“both insufficient support for the allegation and lack of explanation why the Rules, in particular Rule 5-4 [imposing confidentialityobligations on a party receiving documentary discovery], do not adequately address these concerns” (at para 50).

For those reasons, heordered PCL to produce to Expocrete unredacted copies of the documents in question. [33] The issue of the proper test for the redaction of a producible document also came up in Canadian Pacific Railway vSaskatchewan, 2022 SKQB 28, [2022] 3 WWR 495 [CPR], and Tomcala v Input Capital Corp, 2022 SKQB 89. In both cases, the judgesreferred to PCL Construction as being authoritative. [34] The cases I have reviewed describe in somewhat different terms the nature of the compelling reason that will justify aredaction.

However, each of them stands for the proposition that a redaction of information from an otherwise producible document cannotbe justified on the sole ground that the information is irrelevant. Yet, the view is not unanimous across all Canadian jurisdictions. [35] Alberta’s courts have taken a different approach. They have interpreted that province’s rules of civil procedure in a way thattreats, at least in some circumstances, a “document” as being only those portions of a record that are relevant to the action.

The leadingdecision in that jurisdiction appears to be Lazin v Ciba-Geigy Canada Ltd., 1976 ALTASCAD 58 , [1976] 3 WWR 460 (AltaCA) [Lazin]. That case involved the question whether, in the context of a personal injury claim, a plaintiff was required to produce theentirety of her personal diary, or only relevant parts of it. The Court justified this conclusion by adopting a restrictive

interpretation as towhat constitutes a “document” for the purposes of giving discovery. In this regard, McDermid J.A. held that “reference in the present rule188 to ‘what documents relating to the matters in question’ means only the relevant portions of what might physically be called adocument.

If part only of a page is relevant then that is the document that must be disclosed in the affidavit” (at 463). [36] Although Lazin described the redaction of irrelevant information from a producible document, in context, the court wasconcerned with the division of a larger whole – in that case, a diary – into constituent parts, some of which were relevant, others of whichwere not.

The same can be said of many cases that have followed Lazin, such as Sanchez v Hampton, 2002 ABQB 226, and Vu v Garcia,2005 ABQB 308, both of which dealt with medical records, only some of which bore on issues in dispute, and Innovative Health GroupInc. v Calgary Health Region, 2008 ABCA 219, 294 DLR (4th) 83 [Innovative Health Group], which dealt with the division of a computerhard drive into files.

However, in Geophysical Service Incorporated v NWest Energy Corp., 2017 ABQB 232, 9 CPC (8th) 203, Nixon J.relied on Lazin, Innovative Health Group and other authorities as the basis for allowing the redaction of names from a computer recordbecause the identification of these persons “would not significantly assist in the determination of any of the issues raised in the pleadings”(at para 51). [37] Finally, I would mention the approach taken in Nova Scotia. In Banks v National Bank Financial Ltd., 2011 NSSC 79, 955APR 25 [Banks], Muise J. reviewed many cases, including several of those that I have discussed.

He then concluded that “the approach inNova Scotia has been to permit redaction of irrelevant portions of documents unless there is good reason to disclose them, such as whereredacting them ‘will distort the meaning and continuity of the documents’” (at para 76). [38] However, Banks was decided under the Nova Scotia Civil Procedure Rules (1972). Those Rules were revised in 2008 to includean obligation on a party to “sort” relevant documents (Rule 15.02(1)(b)).

The term “sort”, in turn, is defined in part to mean to “separate orredact irrelevant or privileged information from a document or electronic information containing some information that is relevant and notprivileged” (Rule 14.02(1)). Nova Scotia courts have developed detailed principles that govern when this obligation to make redactions isto be exercised. These were summarized by Keith J. in Sanford v Carleton Road Industries Association, 2020 NSSC 170.

They includethat the “presumption of full disclosure of all relevant information remains and must be respected”, and that redaction based on irrelevanceshould be “unusual or rare” and “should occur only in exceptional circumstances”. Justice Keith further held that, even within this specificrules-based regime, “redacting information from a document (and compromising an opposing party’s ability to review the entire documentin its full context) should seek to protect particular, identifiable interests worthy of that protection” (at para 30). 3.

The appropriate test for Saskatchewan [39] I am persuaded to follow the approach taken generally in PCL Construction and by the courts of most Canadian jurisdictions.Subject to one qualification that I will later mention, it would undermine the purpose for which discovery is given if a litigant were to beallowed to shield from discovery non-privileged information that is relevant to a matter in issue in the action. Therefore, as a first step, aparty seeking to justify a redaction from a producible document must show that the information removed from it is irrelevant.

I also seeseveral reasons to interpret the Rules in a way that requires that more than irrelevance be shown. [40] First, when determining what else must exist for a redaction to be justified, my starting point is that what is to be tested is theremoval of information from an otherwise producible document – not the division of a collection of documents, or even the division ofsomething into constituent parts. The Rules do not contemplate production of only part of a document.

Rather, they contemplateproduction of a “document” as a whole. [41] Second, the Rules not only contemplate that disclosed and produced documents may contain information that is ultimatelyunhelpful to either side in a civil dispute, but that the document itself may ultimately turn out to be irrelevant.

In this regard, Rule 5-2provides as follows: Disclosure not admission of relevancy 5-2 The disclosure or production of a document pursuant to this Division alone is not to be considered as an agreement oracknowledgement that the document is admissible or relevant to any matter in issue. [42] At first blush, the idea that a party making disclosure or production of a document is not admitting that it is “relevant to anymatter in issue” may seem difficult to reconcile with Rule 5-6(1)(

b) since, under the latter rule, the obligation to make disclosure, andtherefore production of a document, is tied to whether the document is “relevant to any matter in issue in the action”. However, Rule 5-2 isprincipally looking ahead to the trial between the parties, although it has scope for application in interlocutory proceedings as well. Bypreserving the ability of a party to later argue that a document it has produced is irrelevant, the drafters of the Rules have removed an

incentive on a litigant to exercise excessive caution when giving discovery of documents. Rule 5-2 therefore fosters a more liberal, rather than more tentative, approach when giving disclosure and production of documents. This should continue to be generally favoured. [ 43 ] Third, the Rules provide protection to a party from adverse consequences that may be associated with giving production of relevant documents.

Justice Robertson observed that a party seeking to redact information should show “a real likelihood of serious harm from their disclosure that cannot be addressed by the usual protections of the implied undertaking rule in Rule 5-4 ” ( PCL Construction at para 44 , emphasis added). Rule 5-4 gives several levels of protection to a party who has made production of a document.

First, it provides that, generally speaking, information and documents given as part of discovery “must be treated as confidential and may only be used by the recipient … for the purpose of carrying on the action in which the information or documents were provided or disclosed” (Rule 5-4(1)). It also limits how the information or documents can be used in interlocutory proceedings by generally requiring that they “be sealed in a form satisfactory to the local registrar or a judge when filed” (Rule 5-4(2)).

Although this Rule does not extend to the use of information or documents at trial, in that context the process is under the immediate supervision of the presiding judge. The existence of all of these levels of protection undermines, and in some cases may overcome entirely, many of the reasons a party giving production might have for asking that discovery be given only of what is strictly necessary to resolve the issues in the dispute. [ 44 ] Finally, interpreting the Rules as requiring something more than irrelevance to justify a redaction is consistent with Rule 1-3(1).

That foundational rule states that the Rules are intended to be used to “provide a means by which claims can be justly resolved in or by a court process in a timely and cost effective way”. This idea is reiterated in the specific context of

Part 5 of the Rules , where it is stated that one of the purposes of that

Part is “to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the cost of them” (Rule 5-1(1)(e)). [ 45 ] As part of his analysis in North American Trust , Lowry J. considered whether to adopt an approach that would treat a “document” as meaning only the relevant information in it.

He rejected this idea, since it was unnecessary to alleviate against the harm the party making the redaction was concerned with and also would tend to make litigation more costly and time consuming: [12] … [A]ccepting the narrow meaning [of ‘documents’] would serve to invite litigants to engage in editing out substantial parts of a document production believed to be irrelevant and, in larger commercial cases where there can be hundreds if not thousand of documents relating to the matters in issue, that could serve to make discovery even more contentious, time-consuming, and costly than it is now. A narrow

interpretation of the word is not necessary to affording the kind of protection that the plaintiffs seek in this case. Justice Robertson made a similar point in PCL Construction when he said that the “time spent on this dispute over production demonstrates the problem with allowing redaction or withholding of documents” (at para 49). [ 46 ] I agree with both Lowry J. and Robertson J. that, if the courts allow redactions simply because the information removed is irrelevant, it will encourage parties to make them. This is apt to foment abuse and dispute.

It will tend to create a vehicle by which a party, interested in creating difficulty for a party opposite (whether that be to drive up costs or otherwise), will have tools by which they can do so. Even if a litigant is not intent on abusing the rules, a bar defined by mere irrelevance will invite disagreement. All of this is very likely to increase the overall costs of litigation and consume valuable court resources as parties fight over whether a redaction is proper or improper.

In a context where a determination has been made that the document itself is producible, not only is a further inquiry into the relevance of every aspect of information communicated by the document generally unnecessary, but it should not be encouraged. [ 47 ] Notwithstanding all of this, SaskPower says that it should be sufficient that a party making a redaction show that the information it has removed is irrelevant. It ties its submission to amendments made to the Rules in 2013 relating to the definition of “relevance”.

It argues that the redaction of relevant information is in keeping with a more restrictive, and focused, obligation of discovery. I am unpersuaded by this argument. [ 48 ] In this regard, prior to 2013, parties were required to give discovery of documents “relating to any matter in question in the action” (Rule 212(1)) and oral discovery could be obtained on any matter “touching the matters in issue in the action” (Rule 222).

As a result of the 2013 amendments, relevance for both document discovery and questioning depends on the document or information being “relevant to any matter in issue” in the action (Rules 5-6(1)(

b) and 5-18(1)(a)). SaskPower says that this change results in a higher standard of relevance for obtaining discovery. It cites, in support, Canadian National Railway Company v Clarke Transport , 2013 SKQB 394 , 432 Sask R 63, wherein Scherman J. stated as follows: [18] I am satisfied that when this Court moved from the words of touching and relating to any matter in issue, it intended to move away from the broad relevance test that existed under the former Queen’s Bench Rules .

Concerns existed in Saskatchewan, as in other jurisdictions, that the broad relevance test did not strike a proper balance between the considerations of efficiency, timeliness in the conduct of litigation and cost control on the one hand with the counterbalancing interests of litigants and counsel in ensuring that all potentially relevant information was known. See also, R.J. England Consulting Limited v Palantir Property 2001 Inc. , 2014 SKQB 65 at paras 15 and 21 , 439 Sask R 255 . [ 49 ] The notion that the Rules contemplate a focused discovery – both documentary and oral – finds support in

Part 1 of the Rules . This part sets out the foundational rules that guide the

interpretation and application of what follows. These include that the Rules are intended to be used to “identify the real issues in dispute” (Rule 1-3(2)(a)), and that the parties are obligated to “identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense” (Rule 1-3(3)(a)). These foundational rules are echoed in Rule 5-1(1)(b), which describes one of the purposes of

Part 5, dealing with disclosure of information, to be “to narrow and define the issues between parties”. However, even accepting that the 2013 amendments to the Rules have narrowed the scope for what is relevant, they do not assist SaskPower. The reason for this is that SaskPower does not in any way dispute that the Email itself is relevant under the Rules as they now sit.

I therefore fail to see how the change in the definition of relevance assists SaskPower in its position that a redaction of information from it should somehow be countenanced. [ 50 ] Based on all of this, I am satisfied that a party seeking to justify a redaction from an otherwise producible document must show both that the information that has been removed is irrelevant and that there is a compelling reason that the information be removed.

[ 51 ] The cases describe in somewhat different terms the nature of the compelling reason, beyond irrelevance, that will justify a redaction. In North American Trust , Lowry J. referred to the need of the redacting party to show a “good reason” (at para 15). Justice Strathy referred to allowing a redaction to protect against “significant harm” ( McGee at para 9 ). Later, he stated that redactions are to guard an “important interest” and gave a non-exhaustive list of examples (at para 13).

In PCL Construction , Robertson J. said that the redacting party must show that “there is a real likelihood of serious harm” from the disclosure of the information (at para 44). Each of these descriptors might, depending on the circumstances, be seen to describe a different, albeit rather high, threshold.

To complicate matters even further, in Este , rather than describing a threshold, Newbury J.A. stated that, in authorizing a redaction, “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” (at para 21, quoting Gorse v Straker , 2010 BCSC 119 at para 30 , 6 BCLR (5th) 312). [ 52 ] As I will shortly explain, there is no need to refine these principles to decide this appeal.

I will therefore leave it to the Court of King’s Bench and, as necessary, this Court, to develop in future cases what might constitute a sufficiently compelling reason to justify a redaction and how that is best assessed. The important point is that a party seeking to make a redaction must identify a compelling reason, beyond irrelevance, to justify it and ground the justification in evidence or the record. [ 53 ] Several of the cases identify a third consideration as being applicable when a party seeks to justify a redaction of information.

Not only must the party seeking to justify the redaction show that the removed portions are irrelevant and that there is a compelling reason for the redaction, but also that the harm the redaction is intended to protect against cannot be managed in other ways. For example, in PCL Construction , Robertson J. stated the harm must be such that it “cannot be addressed by the usual protections of the implied undertaking rule in Rule 5-4” (at para 44). I would agree with Robertson J. that this is a necessary part of the determination as to whether a redaction is proper.

Although he rolled this into the second part of the test as he formulated it, it will put the correct focus on this requirement if it is considered separately. [ 54 ] I would also add that a party who has been presented with a redacted document may offer additional protections, beyond those found in Rule 5-4, to mitigate the harm that the redaction is intended to prevent.

Such measures might include restrictions on the circulation of the document within the receiving party’s organization, or other additional measures designed to ensure the confidentiality of the information that will be shared if an unredacted document is disclosed. A judge, tasked with determining if the redaction is appropriate, may consider these additional protections, and impose them as conditions for ordering that production of an unredacted document be given, when assessing whether the risk of harm raised by the producing party justifies withholding the unredacted document. [ 55 ] In

summary, a party seeking to justify a redaction from a producible document must show that: (

a) the information removed from the document is not relevant to an issue in the action; (

b) there is, in the evidence or record, a compelling reason for the redaction ; and (

c) the existing protections provided for in the Rules , and as may be supplemented by other measures, are insufficient to protect the interest that is said to justify the redaction. [ 56 ] I would add only one qualification to this three-part test. There may be instances when a producible document contains privileged information that is properly not disclosed to other parties.

This was contemplated earlier in these reasons, when I stated that it would undermine the purpose for which discovery is given if a litigant were to be able to shield from discovery non-privileged information that was relevant to a matter in issue in the action. A party should be entitled to remove even relevant privileged information because a proper claim of privilege provides the compelling reason to justify the redaction. The Rules address this by allowing a party to assert privilege, and for a court to evaluate that claim. B.

What is the procedure to follow when a party has decided to assert that part of a producible document is properly redacted? [ 57 ] Neither PCL Construction , nor the cases in this province that have followed it, identified the source of the authority of a party to make a redaction or the court to sanction it. As well, as I have already noted, the Rules themselves do not contain an express exception allowing a party to redact information from an otherwise producible document.

It is therefore appropriate to consider what procedure should be followed when a party has decided to assert that part of a producible document should be redacted. [ 58 ] I find the answer to this question in North American Trust . In that case, Lowry J. held that, where a litigant has a good reason to redact information from an otherwise disclosable document, the proper procedure is to unilaterally make the redaction, produce the redacted document and then to make an appropriate note to that effect when the document is disclosed.

This allows the other side to make an application and the court to then decide whether to exercise its power to excuse against compliance with the rule that requires production of all relevant, non-privileged documents, in accordance with the applicable rule of civil procedure. [ 59 ] Brought into the context of Saskatchewan’s Rules , a party that has made a redaction from an otherwise producible document must list in its affidavit of documents the redacted copy and the unredacted original in accordance with Rule 5-6(1). The document in its redacted form should be listed in

Schedule 1 of Form 5-6 (documents for which there is no objection to produce). The document in its unredacted form should be listed in

Schedule 2 (documents for which there is an objection to produce). The party should then also set out in

Schedule 2 the basis upon which it claims the right to withhold production of the unredacted document. Proceeding in this way will disclose that there are two versions of the document in existence (something that may not be patent in all cases) and reveal the justification for not producing the original, unredacted version. [ 60 ] Rule 5-12 applies when there is a dispute as to whether a party has met its obligation to make proper discovery of documents. In this regard, Rule 5-12(1)(

a) provides as follows: 5-12

(1) A party desiring production of documents may apply to the Court for an order mentioned in subrule (2) if any party: (

a) has neglected, refused or objected to serve an affidavit of documents in accordance with this subdivision[.] [ 61 ] The types of orders that can be made in this context are set out in Rules 5-12(2) and 5-12(3):

(2) In the circumstances mentioned in subrule (1), the Court may make any of the following orders: (

a) an order requiring the other party to produce documents; (

b) an order for further or better production of documents; (

c) an order for inspection; (

d) an order determining whether documents with respect to which privilege is claimed are in fact privileged.

(3) In an order made pursuant to subrule (2), the Court may make an order for production or inspection of documents in any manner thatthe Court thinks just. [62] Although Rule 5-12 is largely written to manage disputes over claims for privilege, it is possible to interpret Rules 5-12(2) and5-12(3) as contemplating that a court will only order a party who has made a redaction to produce an unredacted copy if it determines thatthe removal of information was improper. I note also that Rule 5-1(2) allows a judge to “give directions or make any orders necessary toachieve the purpose of [Part 5 of Division 1]”.

It is possible to find in this general power the authority of the court to adjudicate a disputeas to whether a party has met its obligation to make proper discovery of documents.

In any event, even without these Rules, I would haveconcluded that the court could manage the issue through the exercise of its inherent jurisdiction, which can be exercised in appropriatecircumstances to fill a void in the Rules (see: Ostrowski v Beef Stabilization Board (Sask.) (1993), (SK CA), 109 SaskR 40 (CA) at para 26). [63] A similar issue came before this Court in Potash Corporation of Saskatchewan Mining Ltd. v Allendale Mutual Insurance Co.(1989), (SK CA), 80 Sask R 184 (CA). There, one question was whether, in the absence of a rule of court, an ordercould be made bifurcating the discovery process.

Chief Justice Bayda summarily concluded that, despite the absence of a specific rule, hehad “no doubt that the court is empowered to order divided discovery and production of documents and divided examinations fordiscovery, that is to say, the court has the power to order severance for purposes preliminary to trial as well as trial” (at para 26). I wouldconclude likewise here; I have no doubt that the court is empowered to authorize redactions from documents, even though there is nothingin the Rules specifically allowing this to be done. C.

Did the Chambers judge identify and apply the correct test? [64] As already noted, Mr. Omorogbe argues that the Chambers judge initially identified the correct test for determining whether aparty may redact information from an otherwise producible document, but then did not apply that test. In connection with the first part ofthe test, he says that the Chambers judge misconstrued the pleadings and, therefore, erred in her determination that the redacted name wasnot relevant.

He says that the Chambers judge did not identify what interest beyond irrelevance the redaction was intended to protect orwhy that interest was not sufficiently managed through the application of Rule 5-4. [65] The Chambers judge did not state explicitly that she intended to apply the PCL Construction test. However, her discussion ofthat case occurred after she had identified Mr. Omorogbe’s argument to be that “SaskPower must disclose [the redacted name] to complywith its disclosure obligations under The Queen’s Bench Rules” (at para 19).

She also introduced PCL Construction by observing that itcontained a discussion of “the obligation in The Queen’s Bench Rules to disclose information relevant to an action” (at para 21). Finally,the Chambers judge emphasized the words underlined in paragraph 44 of PCL Construction, suggesting that she attached importance tothem. All of this creates a foundation for Mr.

Omorogbe’s argument that the Chambers judge identified PCL Construction as establishingthe test as that which should govern her decision as to whether to allow SaskPower to redact the Email, although to be clear, she did notexpressly adopt it as applicable. [66] In any event, it is evident from the Chambers Decision that the Chambers judge did not consider whether SaskPower’sredaction could be justified for any other reason than that the information it removed was not relevant to the action.

Because, as thisdecision confirms, the appropriateness of the redaction of the name from the Email turns on more than the name being irrelevant, thisCourt must decide whether, applying the correct test, the redaction was nonetheless proper: Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR(4th) 161; Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002] 4 WWR 119; and British Columbia (Minister of Forests) v OkanaganIndian Band, 2003 SCC 71 at para 43, [2003] 3 SCR 371. D. Applying the correct test, was SaskPower’s redaction proper? [67] To succeed in his appeal, Mr.

Omorogbe must show that, if the correct test is applied, SaskPower’s redaction was not justified. [68] SaskPower made no suggestion that the redaction could be justified because the name that was removed in some way was adifferent “document” than the remainder of the Email. In any event, I would reject this idea since the redacted information takes itsmeaning and import from the context in which it is contained.

I would leave to be decided in a case where it matters to the outcome of theappeal whether, or when, a collection of entries in what is otherwise a physical whole – such as a diary or readily divisible accounting ormedical records – may be considered as separate documents for the purposes of compliance with the disclosure and production obligationsunder the Rules. It is sufficient for the purposes of deciding this appeal to observe that what is at stake here is a single producibledocument.

In other words, the redaction of the name of SaskPower’s employee cannot be justified because the information removed fromthe Email is somehow a separate document from its whole. [69] Beyond relevance, the only reason advanced by SaskPower for the redaction is that the name of this person is protected byinformer privilege, as described in Regina (City) Police Commissioners v Saskatchewan Government Insurance, 2007 SKCA 106, [2007]1 WWR 671 [Regina (City) Police].

In that case, Klebuc C.J.S. described an informant as “essentially someone who provides a statementor information to the police regarding an investigation” (at para 19). Regina (City) Police points out that where informer privilege exists, it“can only be waived by the informant directly and cannot be set aside by a court” (at para 18). Apart from other potential problems withthe assertion of informer privilege in the context of the present case, the claim of it here fails because there is no evidence that the person

whose name has been redacted from the Email is a police informer. I add that the Email simply states that the person had come forwardwith “concerns”. It does not identify what those concerns were or state that those concerns had even been offered to the police. [70] This means that SaskPower did not establish a compelling reason to justify the redaction from the Email or that its concerns arenot addressed by the application of Rule 5-4. It follows that I do not need to examine whether the Chambers judge erred in herinterpretation of Mr. Omorogbe’s statement of claim.

I also do not need to consider the case law that relates to the discoverability of awitness’s name (e.g., Soke Farm Equipment Ltd. v New Holland of Canada Ltd. (1990), (SK CA), 82 Sask R 287 (CA),Austman v Royal Bank of Canada (1992), (SK CA), 97 Sask R 258 (CA), and Hill v Board of Education of ArcolaSchool Division No. 72 (1999), (SK CA), 180 Sask R 256 (CA)). These considerations bear on the question as towhether the Chambers judge erred in her determination that the redacted name was not relevant. However, given my other conclusions,this question need not be answered. [71] Mr.

Omorogbe’s appeal must, therefore, be allowed. V. CONCLUSION [72] In this case, the Chambers judge did not apply all parts of the test that governs when a party seeks to redact information froman otherwise producible document. When all parts of that test are looked at, SaskPower cannot justify the redaction of the name from theEmail. It is, therefore, required to produce the Email to Mr. Omorogbe in its unredacted form in accordance with the Rules. [73] Mr.

Omorogbe is entitled to his costs in relation to his application in the Court of Queen’s Bench as well as in this Court,including the costs for his application for leave to appeal and the associated extension of time to appeal. “Leurer J.A.” Leurer J.A.I concur. “Jackson J.A.” Jackson J.A.I concur. “Tholl J.A.” Tholl J.A.