There is no legally enforceable right to obtain documents from a third party, especially if it will breach any terms of use in operation.

Often times terms of use agreements may conflict with one party’s duty, for example, a doctor’s duty to his or her patient. What is important to consider is whether a third party has contractually limited the other party’s authority through its terms of use.

In the case of Galenzoski v. Awad (2006 SKQB 124 (CanLII)), Dr. Awad(the appellant) successfully appealed a decision ordering him to furnish copies of documents that are the property of and in the possession of a third party, the Canadian Medical Protective Association. CMPA members have limited access to documents for authorized use subject to accepting the terms and conditions set out on the CMPA website.

One of the conditions for use of the material is that it must not be transmitted, published or distributed without the express prior written consent of the CMPA. That consent had been refused in this case. The court found that the judge erred in ordering him to provide copies to the respondents because the appellant did not have the right to obtain the documents without the consent of the third party.

Additionally, the appellant did not have the right to direct the third party to produce the documents because they were not within the appellant’s power. One’s duty of care must be balanced with his or her duty to comply with other contractual obligations.

To compel a party to produce documents in the possession of a third party would immediately place the user in violation of the terms of the agreement between the user and the third party, with potentially serious consequences.


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