• by Christina Hinds
Originally published in the OFLM 2024-01 edition
Overview
In Moran v. Moran (2023 ONSC 6832) Justice Kraft heard a motion brought by the husband after the wife accessed private documents on his computer. Those documents included privileged documents which the wife downloaded onto her computer. She then tried to rely on those documents in the family court proceeding. Justice Kraft reviewed the case law relevant to the unauthorized accessing of privileged documents and the three-part test to determine the appropriate remedy.
As a record of extent and nature of the surreptitiously obtained evidence is required before the three-part test can be used to determine the admissibility of the evidence, Justice Kraft considered what orders were necessary to determine the extent and nature of the documents downloaded by the wife.
Justice Kraft ultimately ordered that: (a) there be a forensic investigation of the wife’s laptop and costs of the investigation to be paid by the wife (subject to reapportionment at trial); (b) the wife be restrained from sharing any of the husband’s documents with third parties; and (c) the wife be compelled to provide the names and contact details of any person that she had already provided the documents to.
Facts
The wife admitted that she accessed the husband’s personal computer and downloaded documents from his computer to her laptop without his knowledge or consent. The husband discovered this when the wife attached his private documents, such as emails and text messages, as exhibits to her affidavit in support of an unrelated motion. The wife admitted that she entered the matrimonial home occupied by the husband and made a copy of his computer, including copies of private and confidential emails, documents, and text messages. She did not tell the husband that she was coming to the home and did so while he was not home. The full extent of the documents copied was unknown and the husband sought to compel the wife to deliver her laptop for forensic investigation.
The wife tried to justify her actions by explaining that she accessed his computer through the home “network” and that this was normal for her to do during the marriage. She reasoned that the husband had been evasive with respect to financial disclosure and without accessing his computer herself, she would have not been able to prove it.
The wife denied looking at any solicitor-client privileged documents, but also stated that she deleted any privileged documents “because she knew” that they were privileged.
Analysis
Justice Kraft did not accept the wife’s explanations. Citing Celanese Canada Inc. v Murray Demolition Corp. (2006 SCC 36). Justice Kraft cautioned that: “A violation of privilege poses a significant threat to the administration of justice. To avert this risk, the courts must act ‘swiftly and decisively.’” (at para. 13)
At paragraph 15, Justice Kraft considered the three-part test for resolving issues of unauthorized access to privileged documents (as set out in Celanese and more recently, in Continental Currency Exchange Canada Inc. v. Sprott (2023 ONCA 61)):
- At the first stage, the moving party must establish that the opposing party obtained access to relevant privileged material.
- At the second stage, the onus switches to the opposing party. Once the first stage of the test is met, the risk of significant prejudice is presumed, and the opposing party has the onus to rebut the presumed prejudice.
Her Honour explained that the wife can successfully rebut the presumption by identifying “with some precision” that: (i) she did not review any of the privileged documents in her possession; (ii) she reviewed some documents, but they were not privileged; or (iii) the privileged documents reviewed were nevertheless “not likely [to] be capable of creating prejudice”. The evidence must be “clear and convincing” such that “[a] reasonably informed person would be satisfied that no use of confidential information would occur”.
Where the precise extent of privileged information is unknown and possibly unknowable, the court should infer that confidential information was imparted unless the wife satisfies the court that no information was imparted which could be relevant.
- The third stage is to determine an appropriate remedy.
With respect to the first stage, the wife admitted under oath to accessing documents on the husband’s computer. While she stated that she “deleted” privileged documents, she explained that she deleted such documents because she knew they were privileged. Justice Kraft noted that “Without the forensic review of what was taken by the wife surreptitiously, it is impossible for the husband to know the extent of privileged materials that she [has] obtained.” (at para. 15)
With respect to the second stage, Justice Kraft considered the reasons for the reverse onus and presumed prejudice to the husband:
As summarized in Celanese, at paras. 49-51, there are compelling reasons for the presumption of prejudice and the reverse onus on the appellants in receipt of privileged information including:
- Requiring the husband whose privileged information has been disclosed or accessed to prove actual prejudice would require them to disclose further confidential or privileged materials;
- Placing the burden on the wife who has access to the privileged information is consonant with the usual practice that “the party best equipped to discharge a burden is generally required to do so”; and
- The husband does not have to bear “the onus of clearing up the problem created by” the wife’s actions.
While it was established that the wife had accessed the husband’s confidential and privileged information, the scope of what had been downloaded by the wife could not be determined without a forensic investigation. Justice Kraft noted that after a review of the wife’s computer and depending on the outcome, the husband may be entitled to seek a stay of proceedings or seek to remove the wife’s legal team. (at para. 15)
Once a complete record of the extent and nature of the surreptitiously obtained evidence is available through the forensic audit, the admissibility of that evidence can thereafter be determined. (at para. 16)
Decision
Her Honour made an order for a forensic investigation of the wife’s computer and costs of the investigation to be paid by the wife (subject to reapportionment at trial); an order restraining the wife from distributing the documents to third parties; and an order that the wife provide a list of the names and contact details of the individuals that she already sent the husband’s documents to.
With respect to the forensic investigation, both parties proposed different investigators. The forensic investigator proposed by the wife provided a detailed scope of review which Justice Kraft determined to be appropriate, varied slightly to include specific relief sought by the husband in his Notice of Motion, including: (a) a full inventory of all records on the computer, when each record was created, when it was reviewed, and for how long; (b) examining and identifying what records were deleted and when those documents were reviewed; and (c) identifying and extracting all of the husband’s documents from the wife’s computer. (at para. 23 and 26)
Justice Kraft also granted the restraining order as sought by the husband pursuant to section 46(1) of the Family Law Act, R.S.O. 1990, c.F.3. Her Honour noted that while restraining orders in family law matters are generally made to restrain direct or indirect contact, section 46(3) “permits the court to make a restraining order that contacts any other provisions that it considers appropriate.” (at para. 30)
Takeaways:
If a client provides you with obviously private documents that belong to the other party, inquire as to how your client obtained those documents.
Make sure your client understands boundaries following separation. In Moran, the wife tried to explain that she previously accessed the husband’s computer during the marriage. While not the case in Moran, this conversation may be especially important when parties continue to live together after separating, as such boundaries may not be as clear.