A violation of privilege “destroys the level playing field and creates a serious risk to the integrity of the administration of justice. To prevent such a danger from arising, the courts must act swiftly and decisively.”
This was the strong warning from the Supreme Court in Celanese Canada Inc. v. Murray Demolition Corp, 2006 SCC 36. How might this apply to the all-too-common problem of a party who accesses their spouse’s private documents?
This was the theme of Justice Kraft’s recent decision in Moran v. Moran, 2023 ONSC 6832. In this case, Kraft J. made a restraining order against the wife and ordered her to pay for a third-party forensic audit after she copied the husband’s private computer files onto her laptop.
The parties were married for 25 years and had been separated for 4 years. During questioning, the wife admitted that she had entered the matrimonial home, where the husband had been exclusively residing, and copied the husband’s private computer files, documents, emails, and text messages onto her laptop. She then took the laptop home, reviewed the documents, deleted some of the documents, and shared documents with her counsel.
Generally, when a party makes a claim that the other party has surreptitiously accessed their private and confidential information, there is a threshold issue to determine: whether, on a balance of probabilities, there is reason to believe that the allegation is true. Subsequently, a court must determine the admissibility of the surreptitiously obtained evidence.
In this case, the wife had already admitted that she had accessed the husband’s computer files. However, there was no way for Kraft J. to determine the admissibility of the evidence as the husband did not know what evidence the wife had taken.
Kraft J. held that the husband was entitled to know what documents the wife had taken and shared with her legal team. She further found that without a complete review of the wife’s computer, it was impossible for the husband to know the extent of the privileged materials she had accessed.
In Continental Currency Exchange Canada Inc. v. Sprott, 2023 ONCA 61, the Court of Appeal set out the following three-part test to resolve the issue of unauthorized access to privileged documents:
- At the first stage, the moving party must establish that the opposing party obtained access to relevant privileged material.
- At the second stage, the risk of significant prejudice is presumed, and the moving party does not have the onus of proving “the nature of the confidential information” disclosed. The responding party has the onus to rebut the presumed prejudice flowing from receipt of privileged information. The presumption of prejudice can be rebutted by identifying “with some precision” that:
- the responding party did not review any of the privileged documents in their possession;
- the responding party reviewed some documents, but they were not privileged; or
- the privileged documents reviewed were nevertheless “not likely to be capable of creating prejudice.”
Where the precise extent of privileged information is unknown and possibly unknowable, “the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant”: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235.
- The third stage of the analysis is to fashion an appropriate remedy.
Kraft J. found that the three-part test could only be applied after reviewing the extent of the documents obtained by the wife through a forensic audit. Depending on the outcome of such a review, the husband could very well be entitled to seek a stay of proceedings or to request to remove the wife’s legal team.
Both parties put forward suggestions for forensic investigators. The wife proposed retaining independent counsel to assist in producing an electronic record of the files she copied, while the husband proposed a forensic consultancy company. The husband argued that the scope of the wife’s investigator was too narrow, while the wife argued that the husband’s was too far-reaching.
Kraft J. found that while it was reasonable for the husband to choose the forensic investigator, he had failed to detail the process his chosen investigator would take. Kraft J. therefore found the wife’s investigator’s proposal appropriate. However, she specified that the investigator was to:
review all the records on the computer and set out the identity of each record, when it was created, the file size, and details of when it was reviewed;
determine whether any records were deleted and if so, when; and
extract the husband’s data from all computers.
Kraft J. rejected the husband’s request that a mirror image of the wife’s computer be created, finding that this could result in a fishing expedition. The wife was ordered to pay the upfront costs of the forensic audit, subject to reapportionment at trial.
Turning to the husband’s request that a restraining order be granted against the wife, Kraft J. noted that while restraining orders are generally made to prohibit direct or indirect contact with a spouse, section 46(3) of the Family Law Act permits courts to make a restraining order that contacts any other provision that it considers appropriate.
Noting that it was clear that the wife had taken the documents from the husband’s computer without his consent, had demonstrated that she had no qualms about distributing this information to third parties, and that it would be unfair to allow the wife to continue to distribute the husband’s private records, Kraft J. held that the husband was entitled to know that the wife would be restrained from distributing any of his documents to any third parties pending the completion of the forensic audit.
This case discusses an interesting remedy to a situation that often comes up in family law disputes. Counsel need to be aware of the risks when a client accesses their spouse’s private information and advise clients against doing so.
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