Authors
Partner, Disputes, Montréal
Partner, Disputes, Toronto
Partner, Disputes, Calgary
Partner, Disputes, Montréal
Partner, Disputes, Toronto
Partner, Disputes | Insolvency and Restructuring, Montréal
Table of Contents
Privacy Jurisprudence Review
Svoboda v. Modiface Inc., 2024 ONSC 6249
Facts
The Ontario Superior Court addressed an application to enforce Letters Rogatory issued by a U.S. court in a class action, where the applicants, representing a class, alleged violations of the Illinois Biometric Information Privacy Act. The U.S. court sought to compel ModiFace Inc., a Canadian company that developed augmented reality (AR) technology, to produce its source code and provide deposition testimony. ModiFace resisted the request, arguing that the scope was overly broad and that disclosing its source code could severely and irreparably harm its business.
Decision
The Court found that the applicants failed to demonstrate the relevance and necessity of the un-obfuscated source code under Ontario law, determining that the request was contrary to public policy due to the potential risk to ModiFace’s proprietary technology. However, the Court ordered ModiFace to provide its compiled and obfuscated code and to submit to a deposition, emphasizing that the production of un-obfuscated code was not warranted. The Court also noted that the burden of compliance should not fall on ModiFace, a non-party to the U.S. action, and that less intrusive methods of obtaining the necessary information were available.
Key takeaway
This decision highlighted the importance of balancing international judicial assistance with the protection of Canadian businesses’ confidential information. Disclosing un-obfuscated source code to a competitor would unnecessarily and severely harm the Canadian company’s business interests.
