All About Information

Today, the Supreme Court of Nova Scotia upheld a labour arbitrator’s order that required the Halifax Regional Municipality to cease and desist from recording calls to its call centre for quality monitoring, coaching and dispute resolution purposes.

In resolving the employer’s application for judicial review, Wright J. displayed a remarkably honest application of the “reasonableness” standard of review by disagreeing with the arbitrator’s weighing of management versus employee interests but nonetheless upholding his decision as reasonable.

Though it did not affect the outcome of the application, Wright J.’s more legally significant finding was on whether the employee voice recordings at issue were protected as “personal information” under the applicable privacy legislation. He stressed that the recordings captured non-sensitive employee work product and, in the context, this feature of the recordings was more significant than anything personal that the characteristics of an employee’s voice might reveal (such as age or race).

It cannot be over emphasized that the recording of calls made to the call centre agents on the Primary Line is of a non-personal nature. The call centre agents answer inquires from the public about various municipal matters. There is no component of personal information in that. It is not recorded information about an identifiable individual within the meaning of s.461(f). Rather, the content of the calls, as earlier noted, is about such routine inquires as transit service times, tax bills, by-laws, parking information and municipal services. In my view, the question of whether voice recording in the fact situation at hand constitutes “personal information” cannot be decided irrespective of the content of those calls. Here, the content of those calls is undoubtedly of a non-personal nature made in the course of the performance of the job duties of these employees.

Halifax (Regional Municipality) v. Nova Scotia Union of Public and Private Employees, Local 13, 2009 NSSC 283.

On September 19th, Dufour J. of the Saskatchewan Court of Queen’s Bench set aside an Anton Piller order because the plaintiffs had failed to prove a real possibility that the defendants would destroy the information subject to the order.

In making his finding, Dufour J. described the standard of proof for the “real possibility” branch of the Anton Piller test as follows (citations omitted):

As it would be rare that there would be direct evidence that a defendant is preparing to destroy relevant evidence, the fourth Celanese condition is usually addressed by the plaintiff adducing evidence of the defendant’s dishonest nature. Evidence that the defendants have engaged in questionable business practices in the past or that they are generally dishonest is not sufficient. The plaintiffs must prove that the defendants are the types of persons who would destroy evidence.

Important to this case is that the plaintiffs must satisfy the Court by adducing admissible evidence. Opinion, supposition or the plaintiffs’ “fear” that documents will be destroyed will not suffice.

Dufour J. also held that he would have set aside the order given the plaintiffs’ non-compliance with their duty of full and frank disclosure. He identified the following defects, among others:

• Filing evidence of mere belief that the key defendant was dishonest
• Exhibiting an agreement without drawing a material notation on the agreement to the judge’s attention
• Referring to two different business entities by a single acronym in a manner that favoured their position
• Citing the paragraphs in Celanese that explain that Anton Piller orders are becoming more commonplace without citing a paragraph in Celanese that explains that an Anton Piller is still an exceptional remedy
• Citing Celanese for the proposition that Anton Piller orders are becoming more commonplace without citing post-Celanese cases that demonstrate that an Anton Piller is still considered to be an exceptional remedy

There is no shortage of cases that highlight the very onerous burden on a party that moves for an Anton Piller, but Dufour J.’s warning is notable for its vigor.

Agracity Ltd. v. Skinner, 2009 SKQB 361 (CanLII).

Here are some recent tweets of note!

• RT @VBalasubramani blogged: “The Admissibility of Tweets” http://bit.ly/14mhII (h/t @mglickman)
• RT @slaw_dot_ca A comment on legal education, labour and employment scholarship and labour and employment practice >… http://bit.ly/1WRjvQ
• @pegduncan Canadian e-discovery case digest updated http://tinyurl.com/dbcvgb [Thanks Peg! Just used it on a file last night.]
• Liked “Is Your Company Clueless?” (about records management): http://bit.ly/UTev0
• Helpful constructive dismissal case for higher ed. institutions. Recognizes wide right to re-assign sr. admin duties: http://bit.ly/3gtyiS
• Great post by prof brenner shows how proof of motive is key to delineating just and unjust publication of personal info http://bit.ly/Lfao0
• RT @slaw_dot_ca Get to know… business simulation designer James Chisholm >> Slaw http://bit.ly/SjAT9
• RT @RossRunkel When is an Employee’s Off-Site Work (e.g., from Home) Compensable? http://tinyurl.com/pl5tla
• Presentation on managing employee use of social media applications http://wp.me/p6aAc-Fs
• RT @WieseLawFirm Interesting short post on trust in negotiations – http://short.to/qrpt (via @JamesDunningGeo)
• Finally got through Ohm’s anonymization paper: http://bit.ly/oynBu An essential read? Hat tip to @DavidCanton
• RT @stevewerby 13% of med school deans admit to student incidents involving sharing private patient data via web http://bit.ly/2HD1q5
• RT @CanadianPI Limiting employer liability for breaches of employee data http://ping.fm/st4uo [But wht abt due diligence/harm prevention?!]

I’m in on a Sunday taking care of some business before a surf holiday with family. We did get some family time this morning. Here’s a pic.  Happy times.

See ya!

Dan

On September 3rd, Strathy J. held that it was not improper for a wrongful dismissal plaintiff to conduct oral discovery of a former subordinate whose harassment complaint led to his termination.

The plaintiff sought to examine the complainant, and the employer moved for an order directing the examintion of the human resoruces manager who had conducted the harassment investigation instead.

Strathy J., hearing an appeal of a master’s order, dismissed the employer’s argument that the choice was improper because the complainant did not participate in the decision to terminate and had no knowledge of the corporate imperatives underlying the decision. Strathy J. held that the request was “rational” and made for a proper purpose and held that the plaintiff would be prejudiced by being deprived of an opportunity to examine the person whose evidence “goes to the heart of the case.” Strathy J. also noted that the plaintiff’s counsel had undertaken that the complainant need not prepare herself for examination on issues of which she had no personal knowledge, said he would be happy to receive undertakings on such issues and suggested that he would be willing to examine the complainant without the plaintiff present.

Ciardullo v. Premetalco Inc., 2009 CanLII 45445 (ON S.C.).

I presented today on managing employee use of social media applications at the Human Resources Forum of the Information Technology Association of Canada. I followed a presentation on social media use in human resources by the wonderful Connie Crosby and an enlightening presentation by Sheldon Silverman on the system AMD uses to mitigate the risks associated with its innovative social media marketing program.

My slides are below, and if you click through to my Slideshare page you can download a version with notes. It’s similar to presentations I’ve done in the past but I’ve added a couple slides to identify the complex issues related to wage and hours claims.

On September 9th, the Ontario Superior Court of Justice ordered Bell and Rogers to identify an individual who used a gmail account to communicate allegedly defamatory statements about York University and its president. The case is notable for two points. First, it contains a relatively detailed discussion of the balancing of interests factor and the privacy interests of the anonymous poster. Strathy J. considered that both Bell and Rogers had privacy policies and terms of service that lowered the individual’s expectation of privacy. Second, Strathy J. held that, in some circumstances, an individual whose identity may be disclosed should be given notice of the proceeding and an opportunity to participate. He did not elaborate, but held that York’s failure to give notice in this case did not tip the balance against making an order.

York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.).

On September 3rd, the Ontario Superior Court of Justice dismissed a motion to disqualify counsel who received allegedly privileged e-mails and used them to amend its pleadings. It held that the privilege holder had waived privilege either knowingly or through the reckless conduct of its counsel.

The privilege dispute arose in the context of a wrongful dismissal claim and a counter-claim brought against a departing plaintiff. The plaintiff had communicated with her legal counsel by e-mail on her former employer’s system. The employer’s American counsel retrieved the e-mails and turned them over to its Canadian counsel, who produced twelve suspect e-mails to the plaintiff in September 2007 along with 135 other documents. The next day, the employer’s counsel wrote a one page letter to the plaintiff’s counsel to deal with a number of production issues and expressly took the position that privilege in the e-mails had been waived.

The plaintiff objected to the production in May 2009. This was after its counsel had responded to all points in the one page letter except the privilege issue and had sought a further and better affidavit of documents. It was also after the defendant retained new counsel who assumed the plaintiff had accepted its privilege waiver position and sought to amend its pleadings to refer to the solicitor-client communications in November 2007.

On these facts, Master Glustein held that the plaintiff had waived privilege. He also held that he would not have otherwise disqualified the defendant’s newly-retained counsel, who he said was blameless in proceeding with its understanding that privilege had been waived. Master Glustein did not consider whether the plaintiff waived privilege in her communications by using her employer’s e-mail system, but did comment:

I also find no “blame” in CPL going through Eisses and Fava’s emails at the outset. Even if the Emails are privileged, CPL’s counsel (Miller and Blakes) believed that the Emails were not privileged because they were the employer’s documents, and that as such, Eisses waived privilege. In any event, CPL and Blakes did the right thing by immediately and explicitly advising Colson, at the outset of the production process, that CPL had produced solicitor-client communications on which CPL claimed Eisses waived privilege.

This obiter statement is of some interest given the frequency with which employers find themselves in custody of their former employees’ solicitor-client communications. The case is otherwise driven by its facts.

Eisses v. CPL Systems Canada Inc., 2009 CanLII 45440 (ON S.C.).

Here are some links within the domain that you may appreciate.

• Privacy cause of action discussion in Oz:http://bit.ly/1FwHBO
• RT @sectorprivate Proposed Privacy Guidelines for BC Administrative Tribunals http://bit.ly/4MrIX
• [And on another note] McCarthys ordered to produce confidential financial data http://bit.ly/hi8dq
• BC Priv Comm OKs modified Bar Watch programhttp://bit.ly/70fhU Thanks @privacylawyer Not sure what to make of this.
• Right to privacy in public, sometimes http://bit.ly/FjYLi
• RT @sectorprivate Talking about Skanks With Dan Solovehttp://bit.ly/ApYa6
• RT @slaw_dot_ca Well worth a read – George Paul’s “Foundations of Digital Evidence” >> Slawhttp://bit.ly/QM4tT
• Universities and swine flu preparations (NYT):http://bit.ly/yxU8O
• RT @marciahofmann Big computer s & seizure case from the 9th Cir. http://bit.ly/QL7Vg. O. Kerr http://bit.ly/31d4aT &http://bit.ly/3Oeej1.
• RT @rcalo Can’t recommend this enough. Hope they keep it up! http://cyberlawcases.com/ [Will give it a shot. Thanks!]
• RT @Pr1vacy Brochure: Circle of Care: Sharing Personal Health Information for Health-Care Purposes [PDF]http://bit.ly/15KQfJ
• RT @slaw_dot_ca Social Media Background Checks >> Slawhttp://bit.ly/cY2US
• Enjoyed this Ontario judgement (USA v. Yemec) by Belobaba J.: http://bit.ly/3Qduqd Great story, interesting law, reads like a novel.
• All I will say is that this IPC/Ontario decision is worth a read:http://bit.ly/lQWqg

On August 27th, Arbitrator Bill Kaplan held that an employer breached its collective agreement by implementing random alcohol testing for safety-sensitive positions. The employer attempted to argue that Arbitrator Michel Picher’s strong pronouncement against random testing in his December 2006 Imperial Oil case was wrongly decided though it was upheld on a review for patent unreasonableness by the Ontario Court of Appeal in May. Mr. Kaplan disagreed:

In my view, the Court of Appeal made clear that it accepted Arbitrator Picher’s analysis and conclusions based as they were on the facts, the language of the collective agreement and the synthesis of the arbitral authorities all set out within a context of balancing of interests. Even if Arbitrator Picher’s conclusions were not judicially endorsed, having carefully reviewed all of the authorities relied on by counsel, I find Imperial Oil persuasive and almost on all fours with the facts of this case.

The Picher decision suggests that a general policy of unnanounced random alcohol or drug testing will only be justifiable if there is evidence of a significant problem in controlling the impact of drug and alcohol use on the workplace. In this case, Mr. Kaplan said, “There is no evidence of a problem to be adressed.”

Petro-Canada Lubricants Centre (Mississauga) v. CEP, Local 593, 2009 CanLII 44405 (ON L.A.).