All About Information

Sorry for the lack of Canadian content this week, but here are some links of note.

• Jeremy Mittman, German Court Rules That IP Addresses are not Personal Information. A big issue that hasn’t been fully litigated in open court in Canada.  (Proskauer Rose Privacy Law Blog)
• Laywer2Lawyer, The New Federal Rule of Evidence 502. Following J. Craig Williams and Bob Ambrogi’s podcast is my favorite way to keep finger on the pulse of American legal developments. In this one, Guest Robert D. Owen delivers great substantive input on the new federal rule which lays a foundation for clawback and other agreements intended to limit inadvertent waiver of privilege. (Legal Talk Network)
• Richard Nagareda on Taylor v. Sturgell.  Taylor v. Sturgell is a case about one individual’s right to make an FOI request following another individual’s identical request and, more broadly, the so-called “virtual representation” doctrine. Although this podcast was recorded before the June ruling of the United States Supreme Court (summary here), it situates the issue in dispute very well.  It also includes an interesting argument for reckoning with a concept Professor Nagareda calls ”embedded aggregation” – a problem associated with some claims that, based on their nature, will naturally tie the hands of subsequent claimants.  (The Federalist Society)

I FINALLY had a good surf last weekend, though not without effort.  It took one afternoon of groveling in shore-break, an hour of searching for lost fins in shore-break, several outside diaper changes, one missed afternoon nap, two flight change fees, some hugs and kisses to family who returned home without me and an unplanned “out of office” message to score a few hours of decent surf outside of Halifax on Monday morning. Work-related stress and family-related guilt had me bolting to the airport before my feet had thawed out (hence the second change fee) and missing what was later reported as the best session of the day, but that’s how it goes. Family and friends, you are awesome for supporting this obsession. We should all move to the ocean and work virtually!

See ya!

Dan

On October 9th, the Saskatchewan Court of Appeal held that the Saskatchewan Legal Profession Act authorizes the Law Society of Saskatchewan to demand production of records required for an investigation despite a claim to solicitor-client privilege.

The Court distinguished the Supreme Court of Canada’s recent Blood Tribe decision and held that section 63 of the Saskatchewan Act clearly contemplates that privilege will be abrogated by a proper demand.  Since the respondent law firm conceded the Law Society’s production demand was sufficiently tailored, the Court held that it could lawfully seize the disputed records.

Notably, the Court also rejected a broader argument by the Law Society that the common law “extends the envelope of solicitor-client privilege” to include law societies.  The Law Society relied heavily on United Kingdom jurisprudence and, in particular, on a 2002 House of Lords decision called Morgan Grenfell & Go. Ltd.  The Court explained that the cases raised by the Law Society did not support its broad proposition, and stressed that the basis for the solicitor-client privilege must be assessed through the eyes of the client:  ”Disclosure of privileged communication to the Law Society would surely, to most clients, represent an infringement of confidentiality.”

Law Society of Saskatchewan v. E.F.A. Merchant Q.C., [2008] S.J. No. 623 (C.A.) (QL).

Peg Duncan has recently updated the e-Discovery Canada case law digest, and includes an interesting Alberta Court of Queen’s Bench decision from January 2008 called Design Group Staffing v. Fierlbeck. It’s about an employee who e-mailed himself a great number Alberta Treasury Branch records before departing from employment from a company who provided IT services to the ATB and the service provider’s very aggressive reaction. Any employer’s counsel will tell you that this is a very common occurrence.

The service provider applied for an Anton Piller order based on its concern about ATB client privacy and the risk of identity theft (though there was no evidence the defendant had any motive to perpetrate identity theft or sell the information). It turned out the records taken did not contain any client information. The Court criticized the service provider for its lack of diligence and vacated the Anton Piller.

It’s interesting to me how non-party privacy issues can play out in litigation. Was the service provider prepared to take whatever steps necessary to demonstrate its vigilance in protecting customer data to its client given its employee had caused a data breach? Or did it have its own motive for seeking an order and was the privacy claim simply a convenient justification for making a non-genuine demand? (I think it was the former in this case.) Where non-party privacy is engaged, should potentially affected individuals receive notice and have a right of standing? For another recent case in which these issues arise, see Datatreasury Corporation.

On September 26th, the Federal Court held that PIPEDA does not give employees of federally-regulated employers a right of access to e-mails concerning them that are sent between co-workers in their personal capacity and stored on the employers e-mail system.

The applicant, a former employee, filed a request for all e-mails “concerning” him. At the Federal Court, the primary issue in dispute was about whether “personal” (i.e. non-work related) e-mails about the applicant were subject to the right of access in PIPEDA.

PIPEDA does not include a traditional “custody or control” standard for access. Though the access principle refers to personal information “held” by an organization, the existence of a right of access turns on whether a request is for personal information that is collected used or disclosed by an employer “in connection with the operation of a federal work or undertaking.” PIPEDA also expressly excludes information that an individual collects, uses or discloses for exclusively “personal or domestic purposes.”

Mr. Justice Russel Zinn held that the personal e-mails sought were not collected in connection with the operation of a federal work or undertaking and were also excluded as e-mails collected, used and disclosed for personal or domestic purposes. The core of his reasoning is captured in the following excerpt:

First, in my view, the information is not being “handled” by Bell Canada. Like the bycatch of the cod fisherman, personal e-mail is the bycatch of the commercially valuable information that is being handled by Bell Canada. Secondly, to be information collected in connection with the operation of the business, requires that there be a business purpose for the information. There is none with respect to personal e-mails. In fact, from the viewpoint of organizations like Bell Canada, personal e-mails are refuse that take up valuable space and time. It is for this reason, among others, that organizations discourage or limit employee utilization of their computer systems for personal reasons.

Zinn J. also appears to have been influenced by the rights of the co-workers who sent and received the impugned e-mails and their interest in what has otherwise been called “mixed personal information.” He suggests that these individuals would be deprived of the personal and domestic purposes exclusion if PIPEDA was held to apply to their e-mails, hence framing the exclusion as a form of right. Notably, Zinn J. did not expressly consider whether Bell reserved a right to monitor “personal” e-mails under its computer use policy.

There are other very significant aspects of the judgement that relate to the nature of an organization’s duty to clarify the scope of a request and its duty conduct a reasonable search for responsive information.

On duty to clarify the scope of broad requests, Zinn J. stated:

I am of the view that the position stated by Bell Canada that Mr. Johnson “had a responsibility to focus his request” overstates the responsibility of an applicant making an access request. In my view, and in keeping with the practicality of the application of PIPEDA to a request that may suggest an extensive, costly and time-consuming search, the organization receiving a broad request such as that made by Mr. Johnson has two options open to it: (1) it can inquire of the party making the request if he can be more specific as to the information he is requesting, in which case the requesting party does have an obligation to cooperate in defining his request, or (2) it can conduct a reasonable search of information that it can reasonably expect to be responsive to the request. In this case Bell Canada chose the latter course.

And on the duty to conduct a reasonable search, he stated:

The search [Bell Canada] was required to conduct was a search that could reasonably be expected to produce the personal information of Mr. Johnson that, in the ordinary course, would fall under PIPEDA.

…

It cannot be seriously suggested that an organization has a responsibility to recover deleted or overwritten data in the absence of compelling evidence that it existed and that it can be recovered at a reasonable cost. Further, in my view, such a Herculean task should only be required to be undertaken, if ever, in circumstances where there is a critical need for the recovered information.

Johnson v. Bell Canada, 2008 FC 1086.

Here are some recent links of note.

• Martin Felsky, Ontario Rules Amendments for July 2009 Contemplate E-Discovery. Martin gives the scoop on the pending Ontario civil rules amendments, which apparently will embed the concept of proportionality into Rule 1.04 and require parties to engage in discovery planning. (Ediscovery Canada)
• Jonathan C. Bond, Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century. Mr. Bond argues for a new definition of “disclose” in the U.S. Privacy Act that would make clear that an agency discloses information when it makes it “substantially more accessible” than it had previously. Features a reflection on a recent claim for breach of privacy based on the publication of workplace insurance adjudication decisions. (George Washington Law Review 76:5)
• Lew McCreary, What was privacy? This is an in-depth article from this month’s Harvard Business Review. Senior editor McCreary encourages business to understand and manage privacy issues. He captures the most business-relevant aspects of the current dialogue on privacy very well. (Harvard Business Review)

What can I say for myself right now? Hugo’s almost a year and a half now and is pretty amazing. He’s right into growling at things he identifies as scary. He doesn’t always get it right though, which makes me laugh. Like yesterday he growled back at a rather harmless and sad looking stuffed penguin that another child had left abandoned in our local parkette. Anyway, we’ve got another quick surf trip on the horizon, which should get me feeling more human after a beautiful but brutally-windless early autumn in Southern Ontario.

See ya!

Dan

The OBA privacy and litigation sections are putting on an dinner that readers of this blog may be interested in attending on November 19th from 5:30 pm (cocktails) to about 8:00 pm.  Liam McAlear and I will co-chair a panel discussion between Catherine Beagan Flood, Matin Felsky, Alex Cameron and members of our audience. Here is the promo:

What’s all the hush-hush about?  Privacy and Civil Procedure:  Current Issues and Cases you need to know

Trends in communication and information management are giving rise to new issues in the litigation of civil claims.  When should a court make an order to reveal the identity of a person who has spoken harmful words anonymously?  In what circumstances should personal information be redacted from productions?  At whose cost?  How sensitive should parties and courts be about the disclosure of personal information in court filings and decisions given the trend towards increased accessibility of court records?   

Join our panel of experts as they reflect on the privacy issues arising in civil practice. The discussion will be based on the following current issues and cases.

• Identifying the anonymous defendant - BMG Canada Inc. v. Doe 
• Production of personal information within and across borders - Datatreasury Corp. v. Royal Bank of Canada
• Whole disk inspections and protective orders - Innovative Health Group v. Calgary Health Region
• Internet publication, personal privacy and the open courts principle - Moore v. Bertuzzi

Cathy is a litigator at Blakes who has represented media and civil liberties organizations on a number of significant information and privacy matters. Many of you know Martin as CEO of Commonwealth Legal and a charter member of Sedona Canada Working Group 7.  Martin also has recent practical experience in managing complex cross-border discovery files and currently sits on the Canadian Judicial Council’s open courts subcommittee. Alex, from Faskens, was co-counsel in the BMG case and has more recently written Leading by Example: Key Developments in the First Seven Years of PIPEDA for the federal Privacy Commissioner.

This is a great panel and a very relevant subject, so we hope to see you there!  Click here for information on how to register.

On August 27th, the Manitoba Court of Queen’s Bench quashed two Criminal Code production orders issued against the CBC and CTV. It held that the deficiency of the information as it related to the media’s privacy interest led to a flawed exercise of judicial discretion.

The order was for audio and video recordings of a press conference held at the Assembly of Manitoba Chiefs that the RCMP sought on a belief that they contained admissions by a man who had recently been shot and tasered in a confrontation with police.

The Court considered the sufficiency of the information in light of the discretionary factors for assessing the reasonableness of searching a media organization laid out by the Supreme Court of Canada in New Brunswick and Lessard. It held that the informant ought to have disclosed:

• that the police had been given prior notice of the press conference but had chosen not to attend;
• the possibility that the tapes might include one-on-one interviews given the media’s greater privacy interest in this type of content (even though the informant only later discovered that the tapes being sought contained one-on-one interviews with subject of his investigation); and
• the existence of eyewitnesses to the admissions being sought (though such was obvious) and whether they were an adequate alternative source of evidence.

The decision stresses that the police ought to do their best to help issuing judges conduct the public interest balancing exercise required by the media search jurisprudence, an exercise made difficult given the media does not participate. The Court also suggested that issuing judges should issue reasons to facilitate effective review.

Canadian Broadcasting Corporation v. Manitoba (Attorney-General), 2008 MBQB 229 (CanLII).

On October 3rd the British Columbia Court of Appeal heard an appeal of application to quash a subpoena that compelled an expert to testify against his wishes in a criminal trial.  It rejected arguments for a general rule against compelling a reluctant expert to testify in a case where she has no prior connection as inappropriate given criminal defendants’ right to make a full answer and defence. Instead, it adopted the following rule:

In summary, then, in the case of compelling an expert’s attendance at trial under s. 698, having established that he or she is likely to give material evidence in the proceeding, the issuing judge or justice should further consider, at least, these matters:

(i)         the prima facie entitlement of the court to every person’s evidence, whether of fact or opinion;

(ii)        whether the expert has some connection with the case in question;

(iii)       whether the expert is willing to come “provided his image is protected by the issue of a subpoena”;

(iv)       whether attendance at court will disrupt or impede other important work that the expert has to do;

(v)        whether, and to what extent, the expert will be required to expend time and effort in preparing evidence for the court; and

(vi)       whether another expert of equal calibre is available.

This list is not exhaustive.

The Court also held (1) that defence counsel’s perceived competence and the potential for a negative impact on other matters in which the expert is engaged are not proper factors and (2) that proof of the necessity of the evidence is not required.

R. v. Blais, 2008 BCCA 389.

On September 23rd, the Alberta Court of Queen’s Bench denied a mid-trial application made by the CBC for access to an audiotape played in open court. Madam Justice Moen engaged in considerable analysis of the applicable jurisprudence and held:

• The open courts principle gives the public and the media a right to attend in open court and to report and publish widely what they heard and saw. Any limits on this right must be subject to the Dagenais/Mentuck test.  
• The open courts principle does not, however, give the public and the media a right to receive copies of evidence.  Dagenais/Mentuck does not apply.
• Mid-trial applications in criminal jury trials will generally work an unfairness on the parties and interfere with the trial process. Hence, they should only be entertained in “special circumstances.”
• The onus in applications for access to exhibits should be on the media, who should be required give notice to all persons that may be directly affected by the broadcast of the recording and show that “extraordinary circumstances” weigh in favor of access.  
• In considering applications for access to exhibits, the Court should consider the property and privacy interests of third parties.

This decision comes shortly after the Court launched a new Audio Recording Policy, which allows accredited members of the media to record proceedings if they provide a signed undertaking to use the recording for verification purposes only.

On September 26th, the Divisional Court held that investigators appointed under the Ontario Health Professions Procedural Code have the power to compel observation of surgery conducted by an investigated physician and the power to compel an individual physician under investigation to submit to an interview.

Registrars of the self-regulating colleges may appoint investigators to look into whether a member has committed an act of misconduct or is incompetent. The Registrar must report the results of an investigation to a committee which, in turn, decides whether to proceed with discipline or incompetence charges in accordance with the procedures outlined in the Code. Investigators enjoy the following grant of power:

An investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.

The Court held that the power to “inquire into and examine,” interpreted purposively, allowed for compelled observation of surgeries. It stressed that the College’s evidence showed observation is an effective, customary and even necessary process for assessing a health care practitioner’s competence. It held that the grant of power in the Code was unambiguous, so there was no scope for interpreting it narrowly to conform with Charter values that weigh against self-incrimination and unreasonable search. (The applicants did not challenge the constitutionality of the legislation itself.)

The Court also dealt with the privilege against self-incrimination in finding that an investigator can compel a physician to submit to an interview. The Court held that neither the privilege against self-incrimination nor (implicitly) the right to silence were engaged given the purpose of an investigation. It said that the aim of an investigation is not to gather evidence for use in a subsequent prosecution but rather was, “to ensure appropriate regulation of the medical profession in the public interest.” In this regard, it suggested that the use immunity provision in section 9 of the Public Inquiries Act was also incorporated into the Code, through it declined to issue a declaration that the applicants would be immune because such an order was premature.

Gore v. College of Physicians and Surgeons of Ontario, 2008 CanLII 48643 (ON S.C.).