Fasken client, Bayerische Motoren Werke Aktiengesellschaft ("BMW AG"), defeated an appeal in the Ontario Divisional Court concerning the intersection of BMW AG's document production obligations in Canada on the one hand, and European data protection laws under the General Data Protection Regulation ("GDPR") on the other hand.1 In the first Canadian appellate decision to address these issues, the Divisional Court upheld the motion judge's order permitting BMW AG to redact irrelevant personal data if disclosure of the data would infringe the interests of the person whose data was being disclosed. Peter Pliszka, Kimberly Potter, Robin Roddey, and Chad Pilkington acted for BMW AG in securing this successful result.
The motion underlying the Divisional Court's decision arose in the context of a certified class action, in which the parties disagreed about the scope of BMW AG's document production obligations. At issue was whether BMW AG's document production obligations under Ontario's Rules of Civil Procedure could be reconciled with BMW AG's data protection obligations under the European Union General Data Protection Regulation (the "GDPR") and Germany's Federal Data Protection Act. Under these laws, BMW AG has an obligation not to disclose personal data unless certain statutory requirements are satisfied, and if BMW AG contravenes this obligation, statutory sanctions and consequences can follow.
BMW AG applied to the Ontario Superior Court for an order permitting it to produce documents in accordance with a "layered" redaction approach — under this approach, personal data would be redacted from its documents produced to the plaintiff in the litigation, subject to a process of "un-redaction" where justified. The plaintiff opposed this approach, arguing that documents should be produced without adjustment for compliance with foreign data protection law. The motion judge ultimately ordered that BMW AG be able to produce documents with redactions, if (1) BMW AG could establish that the redacted information was irrelevant to the lawsuit, and (2) disclosure of the information would cause significant harm to the producing party, or infringe a public interest.
The plaintiff appealed that order to the Divisional Court. The plaintiff argued that the motion judge had erred in law by permitting BMW AG to redact personal information from otherwise relevant and producible documents. The Divisional Court disagreed, accepting BMW AG's submission that the order was within the motion judge's discretion and consistent with established legal principles. In particular, the motion judge's order did not allow redaction based on irrelevance alone, but also required that redaction is permissible only if production of the personal data would result in significant harm to the producing party or infringe a public interest. The Divisional Court also found it significant that the ordered disclosure process was subject to ongoing judicial oversight.
The plaintiff also argued that, more generally, a potential breach of foreign law does not relieve a party from its document production obligations under Canadian law. Here, too, the Divisional Court agreed with BMW AG's submission. It concluded the matter was one of international comity, holding that "while foreign laws cannot dictate the procedures to be followed by Canadian courts, a foreign litigant should not be compelled to contravene the laws of its home jurisdiction if domestic fact-finding process[es] can accommodate compliance with foreign laws."
The Divisional Court's decision provides a good template for future courts dealing with production issues in domestic litigation involving foreign parties subject to data protection laws in their home jurisdictions.
Footnote
1. Harris v. Bayerische Motoren Werke Aktiengesellschaft et al., 2024 ONSC 2341.
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