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Posted on October 21st 2016 in Legal Articles

Text message issue still largely unexplored in civil courts

Questions relating to the production of text messages have received a good deal of consideration in Canadian criminal courts, but there is still limited case law on how the issue is dealt with civilly, Toronto civil and commercial litigator Patrick Summers.

“The initial duty of a civil litigant is clear. In Imperial Oil v. Jacques [2014] 3 S.C.R. 287, in the context of a request for production of wiretap recordings obtained in a prior criminal proceeding, the Supreme Court of Canada observed that the ‘cardinal’ aim of a civil proceeding must be to seek and ascertain the truth, and that the rules of evidence in civil matters exist to allow judges to ‘find out the truth’ and ‘to do justice according to law,’” writes Summers, a partner with Birenbaum Steinberg Landau Savin & Colraine.

The court also found that relevance is to be interpreted “broadly” and justice is usually best served by disclosure even of “confidential” documents, he adds.

However, Summers writes, there is some indication that the production of text messages may someday be treated differently in civil actions. In Canadian criminal courts, he says, they have already received much consideration and protection.

For example, “In R. v. TELUS Communications Co. [2013] 2 S.C.R. 3, the Supreme Court of Canada expressed serious concern about the interception of text messages, likening their interception to telephone conversations (an ‘electronic conversation’), the interception of which requires a more difficult process of judicial approval,” writes Summers.

In the context of civil litigation, Jones v. Tsige 2012 ONCA 32 — which considered the recognition of the tort of “intrusion upon seclusion,” the right of privacy — acknowledged that the Charter does not apply to disputes between private individuals. The decision also noted that the common law should be “developed in a manner consistent with Charter values” and that the Charter’s privacy right protections supported recognition of a civil action for damages relating to these privacy principles.

“There can be no doubt that text messages are normally producible under any rules of civil procedure, if they are relevant to the issues set out in the pleadings of an action and are only between the parties in the litigation. But in any number of types of civil proceedings there are surely many other relevant texts in which either the sender or receiver are not a party to the litigation, or are texts that have been intercepted by someone not a sender, or receiver, of that text,” writes Summers.

But whether production of those texts is subject to some scrutiny regarding privacy rights remains an open question, he explains.

“While production of some of these types of texts might be sanctioned by way of a motion for third-party production, the more immediate question for a plaintiff, or defendant, in a civil proceeding is whether or not to initially produce such a text without breaching an expectation of privacy and privacy rights of a non-party,” he writes.

There is scant case law on the production of text messages in Canada, Summers explains in the article — in Phillips v. Unica Insurance Inc. [2015] OFSCD No. 67, for example, an Ontario Financial Services commissioner refused production of cell phone records when they were of a “sensitive and personal nature” and found that an insured should enjoy a right to “reasonable expectation of privacy.”

But, as Summers says, the case law does not deal with the question of what text messages can a litigant produce in the document discovery phase without possible sanction.

“Given the advances in communications technology, the ease with which smart phone texts can be located and extracted, and heightened concerns over privacy, one would expect that these issues will receive some sort of consideration in the civil context in the future,” writes Summers.