16
(c) which is an extraordinary sanction that should only issue in the clearest of cases where
other less extreme measures could not fairly remedy the offending party's decision to not comply,
such as (but not limited to) drawing adverse inferences, prohibiting the admission of a document
that has not been produced supporting the offending party's side, granting an adjournment or
possibly awarding costs, etc., subject to the provisions of a collective agreement on these matters.
[72]
The Union submitted that in this case these criteria are not met. First, the Union submitted that the
Grievor has “co-operated” in this arbitration so far, by having collected and produced hundreds of other
documents, and that the Grievor’s decision to not produce the Ordered documents does not amount to a
“deliberate disregard for the Arbitrator's Order”. The Union noted that it was only when the Production
Order included essentially all medical documents relevant to the Grievor’s mental status that she declined
to comply with the Production Order. The Union submitted that Grievor’s decision to not comply is
understandable, given that the requested documents are sensitive, and related to her mental status.
[73]
Third, the Union submitted that the Grievor does not have to comply with the Production Order for
the reasons stated in McGee v. London Life, 2010 ONSC 1408 [bolding added[:
9.
The whole of a relevant document must be produced except to the extent it contains
information that would cause significant harm to the producing party or would infringe
public interests deserving of protection. I respectfully adopt as applicable in Ontario the
statement of Lowry J., as he then was, in North American Trust Co. v. Mercer International
Inc., 1999 4550 (BC SC) at para. 13:
Under the rules of this court, a litigant cannot avoid producing a document in its
entirety simply because some parts of it may not be relevant. The whole of a
document is producible if a part of it relates to a matter in question. But where what
is clearly not relevant is by its nature such that there is good reason why it should
not be disclosed, a litigant may be excused from having to make a disclosure that
will in no way serve to resolve the issues. In controlling its process, the court will
not permit one party to take unfair advantage or to create undue embarrassment
by requiring another to disclose part of a document that could cause considerable
harm but serve no legitimate purpose in resolving the issues.
10. Lowry J. referred to a number of authorities, some of which were referred to by London
Life in the motion before me, and observed, at para. 11:
In the cases to which I have been referred, litigants have been relieved from
disclosing the whole of a document related to a matter in question where, but only
where, the part withheld has been clearly not relevant to the issues and, because of
its nature, there has been good reason why that part should not be disclosed. With
reference to the decisions of this court specifically, good reason is apparent in the
private nature of the affairs of a company recorded in the minutes of its directors'
meetings, or the personal sensitivity of a person's medical records, diary
notations, or familial communications, and much the same can be said where
expurgated disclosure of a document has been upheld in the cases cited from other