Larkin v. Johnson

Larkin v. Johnson

The court found that some discovery materials are confidential and commercially sensitive and that, given a realistic risk of extraneous use due to the plaintiffs' connection with the Union and absent assurances, the implied undertaking alone is insufficient; a tailored protective order was therefore necessary and granted with modifications to minimize prejudice to plaintiffs, while the sealing application was adjourned as premature.

Citation
2019 BCSC 164
Parties
Plaintiff: Wendy Larkin; Plaintiff: Nicole Hulbert; Plaintiff: Tracy Noseworthy; Plaintiff: Cheryl Trevision; Defendant (trustee): Marni Johnson; Defendant (trustee): Frederick Bobye; Defendant (trustee): Kenneth Hahn; Defendant (trustee): Ron Johnston; Defendant (trustee): Norm Krannitz; Defendant (trustee): Heather Johnson; Defendant (trustee): Ted Schisler; Defendant (trustee): John Allen; Defendant (trustee): Lee Rhodes; Defendant (trustee): Diane Sullivan; Defendant (trustee): Matt Sheehy; Defendant (trustee): David Gaskin
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
12 February 2019
Procedural Posture
Civil Action Alleging Breach of Fiduciary Duty by Pension Plan Trustees / Application for Protective and Sealing Orders (pre Discovery / Interlocutory)
Outcome
Application allowed in part: protective order granted in modified form; sealing order adjourned; costs in the cause.
Legal Topics
Protective Order, Sealing Order, Implied Undertaking, Discovery, Conflict of Interest
Source Language
English
Pension Law Trusts and Fiduciary Duty Civil Procedure Confidentiality and Privacy Labour/collective Bargaining Protective Order Sealing Order Implied Undertaking +2 more

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Parties

Wendy Larkin

Plaintiff

Nicole Hulbert

Plaintiff

Tracy Noseworthy

Plaintiff

Cheryl Trevision

Plaintiff

Marni Johnson

Defendant (trustee)

Frederick Bobye

Defendant (trustee)

Kenneth Hahn

Defendant (trustee)

Ron Johnston

Defendant (trustee)

Norm Krannitz

Defendant (trustee)

Heather Johnson

Defendant (trustee)

Ted Schisler

Defendant (trustee)

John Allen

Defendant (trustee)

Lee Rhodes

Defendant (trustee)

Diane Sullivan

Defendant (trustee)

Matt Sheehy

Defendant (trustee)

David Gaskin

Defendant (trustee)

Procedural Posture

Civil Action Alleging Breach of Fiduciary Duty by Pension Plan Trustees / Application for Protective and Sealing Orders (pre Discovery / Interlocutory)

Legal Issues

  1. 1 Whether a protective order beyond the implied undertaking is required to prevent misuse of confidential, commercially sensitive Plan information
  2. 2 Whether a sealing order to restrict public access to filings is warranted at this interlocutory stage
  3. 3 Whether documents held by trustees are confidential and commercially sensitive within statutory and common law tests

Ratio Decidendi

The court found that some discovery materials are confidential and commercially sensitive and that, given a realistic risk of extraneous use due to the plaintiffs' connection with the Union and absent assurances, the implied undertaking alone is insufficient; a tailored protective order was therefore necessary and granted with modifications to minimize prejudice to plaintiffs, while the sealing application was adjourned as premature.

Court Disposition

Application allowed in part: protective order granted in modified form; sealing order adjourned; costs in the cause.

Orders

  • Protective order granted in form of defendants' draft with modifications: plaintiffs must sign undertakings before receiving designated confidential materials; plaintiffs may receive electronic copies but may not further copy or forward them except to their counsel; defendants to designate specific...
  • Exception for litigation privilege: plaintiffs' counsel need not provide identities of privileged third parties but must collect and preserve signed undertakings and produce them after expiry of privilege or by further order.