Absolute Privilege Extends to Metadata in Ontario

The Ontario Superior Court of Justice recently held in Big Pond Communications v Kennedy that absolute privilege in pleadings in civil cases extends to the metadata in those pleadings, in this instance, the file path and name that appeared printed at the bottom of most pages of the plaintiff's statement of claim. Although the statement of claim itself did not allege theft – only misuse of confidential information – the plaintiff's lawyers had saved the statement of claim document in an electronic folder entitled "theft", and this was included in the pathname which appeared at the bottom of the printed document filed in court. The defendant sued the plaintiff and its lawyers for libel, arguing that the pathname was outside the ambit of the statement of claim, had been inserted for an ulterior purpose, and that he had no means to respond to it. Accordingly, he contended, it should not be protected by absolute privilege. In rejecting the defendant's claim, the Court found that the sensibilities of one litigant cannot override centuries of a principle developed to enable both litigants and courts to speak freely, often of disagreeable matters. The court cited the English case of Munster v Lamb (1883), 11 QBD 588 (CA) in which it was held that "counsel is in a position of extreme difficulty, for he has not to speak of the things which he knows; he does not know whether the facts which he is instructed to bring forward are true or false, but he has to argue in favour of the proposition which will best advance the case of his client." Further, the Court found that the defendant had other means of redress available, by moving to have the offending line struck from the pleading or by seeking an award of costs. Although the Court only considered the document pathname, "˜metadata' (literally, data about data) could encompass much broader and more descriptive types of data, particularly in electronic documents. Metadata could presumably also include saved editing changes, comments in collaborative documents, and auto-generated abstracts of the content of files. For the reasons for judgment in Big Pond Communications v Kennedy (2004), 70 OR (3d) 115, visit: http://www.canlii.org/on/cas/onsc/2004/2004onsc10591.html. Summary by: Jason Young