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The Ontario Court of Appeal dismissed Steven Nowack’s motion for production of redacted email material sought during his criminal appeal.
The court found the defendants had not complied with the registrar's production order and had filed misleading affidavits, but the non-compliance did not warrant a permanent stay or striking of the special costs award; the appropriate course is to dismiss the application, refer the matter back to Registrar Gaily to implement tailored disclosure and case management, and allow the defendants a further opportunity to comply while ordering each party to bear their own costs.
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The Tribunal ordered that Google must answer the Commissioner’s requested undertaking only as to the three named witnesses (Dr Jayaram, Dr Korula and Mr Mohan) by confirming whether the identified trial transcript excerpts remain true and accurate today and, if changed, how; Google’s broader refusal based on burden, hearsay and context was rejected as to those three witnesses; all other disclosure requests by Google were refused, and the Commissioner’s claimed litigation privilege over Schedule B documents, including witness statements and their exhibits prepared for the dominant purpose of l…
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Court held that disclosure should be ordered in a tiered, protective manner: source documents and the confidential list must be produced with the complainant's name and address/contact information redacted, but dates and particulars of the complaint are to be unredacted; the Wigmore test was not fully satisfied on the evidence and privacy interests are balanced by targeted redactions; order without prejudice to further disclosure applications on additional evidence.
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Motion in a criminal appeal dismissed where the Court of Appeal held that claimed TPS privilege answered the disclosure requests and no further disclosure was ordered.
The court held that, given the sensitivity of the issues implicating judicial independence and multiple forms of privilege, the appropriate and proportionate course was to permit the panel alone to review the unredacted ELO communications (including privileged material), the proposed index and summary in sealed envelopes in order to obtain necessary context to determine whether disclosure beyond outward-facing materials is required in the interests of justice under s.683(1). Three sealed copies are to be delivered to the court's ELO and opened only by the presiding judges.
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Court began with presumption that Tariff C applies but found exceptional circumstances (complexity, national security implications, voluminous record, wasted travel costs, and necessity to protect privilege) warrant a departure; it assessed reasonable fees for the motion at $55,000 and awarded 55% of those fees, i.e. $30,250, plus disbursements $4,176.41, payable forthwith by the defendants, and maintained sealing of Protected Information.
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The court denied a stay of a special costs assessment and returned the matter to the registrar to determine compliance with production orders and privilege issues.
The court held that cross-examination of the two prosecuting Crowns is relevant and there is a reasonable possibility it could assist on a fresh-evidence motion and be admissible on appeal, so the Crowns must make themselves available for cross-examination; orders for production of ELO communications, the retired trial judge's work product and a s.682 report were deferred because of serious potential privilege issues requiring detailed submissions, and the matter was directed to return in four weeks for those submissions.
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The court struck the plaintiff’s defamation and contract pleading in full, dismissed the action, refused further leave to amend, and denied a vexatious-litigant declaration.
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