All About Information

One June 4th, the Supreme Court of Canada denied an application for leave to appeal the Ontario Court of Appeal’s decision in Royal Bank of Canada v. Ren. This January, Ontario’s top court affirmed the dismissal of a Charter application that claimed RBC violated section 8 of the Charter in investigating a case of mortgage fraud. My summary of the Ontario Court of Appeal judgement is here.

On November 5th, the British Columbia Court of Appeal held that it was not plain and obvious that an individual who directed an investigation into an allegation of employment-related misconduct did not owe a duty of care to the subject of the investigation.

The facts of the case are not unique.  A school board received a complaint that a principal had been physically abusive to a teaching assistant.  The superintendent retained an external investigator, who investigated and prepared a report that the superintendent relied upon in issuing a letter of discipline. Although the principal’s legal counsel objected that the principal had not been given an opportunity to review and respond to the final report before discipline was imposed and requested that the board refrain sending a copy of the letter to the British Columbia of College of Teachers before such an opportunity was granted, the superintendent nonetheless sent the letter to the College.  The principal sued the school board and the superintendent for various deficiencies in the investigation and for publishing the letter of discipline.

The Court of Appeal held the action should not be struck because it was not plain and obvious that the superintendent owed no duty of care. It distinguished the Ontario Court of Appeal’s recent finding in Correia v. Canac Kitchens as being a case about whether an employer itself owed a civil duty of care to its employees in conducting internal investigations.  Though the Ontario Court of Appeal rejected such a duty in Correia, according to the British Columbia Court of Appeal it did not address whether an individual employee could owe an independent duty of care to another employee under investigation. The British Columbia Court of Appeal also held that the policy reasons that weigh against recognizing an employer duty of care did not apply to claims made against an individual employee.

The Court also rejected the superintendent’s attempt to strike the action because he was acting strictly in the course of his employment.  It held that the well-known principle in Said v. Butt (that shields employees from liability for causing a breach of contractual duties owed by their employers) does not extend to the tort of negligence even when the acts alleged to be negligent occurred in the performance by the employee of a contract between the employee’s corporate employer and a plaintiff.

Hildebrand v. Fox, 2008 BCCA 434 (CanLII).

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).

On July 4th, Arbitrator Craven partially upheld a policy grievance which challenged the expansion of an employer’s in-plant video surveillance system but nonetheless gave a strong endorsement to the employer’s purpose for using video surveillance.

The grievance was about the expansion of a system video cameras in a meat packing plant. The system featured un-monitored, high resolution cameras, some of which were fixed on work areas. It recorded digital images which were retained as long as disk space permitted and apparently not based on a fixed retention period.

Although there was some ambiguity about the purpose of the system, Aribitrator Craven ultimately found that the purpose of the system was, “to investigate plant security, industrial discipline and food safety incidents that come to the Employer’s attention by other means than monitoring the video in real time or viewing or sampling the recordings.” He held this investigatory purpose was legitimate. He also made clear that the employer was not using the cameras to “systematically collect information about employees or to identify occasions for discipline.”

Arbitrator Craven’s distinction between using cameras to support an investigation and using cameras to monitor is strong. He suggests that an investigatory purpose is more likely to be upheld as a legitimate exercise of management rights and less likely to be objectionable because of its intrusiveness. On the intrusiveness issue, he explains:

Indeed, it is a misnomer to describe what the camera system does as ‘observation’ at all. It merely optically, mechanically and electronically collects, transmits and records digital information which does not constitute ‘observation’ until a human observer views the displayed or recorded images. If the cameras continued to operate but no-one viewed the images, we might still describe what was happening as ’surveillance,’ but surely not as ‘observation.’ It is the potential for observation, not its inevitable realization, that underlies the weak analogy between camera and supervisor. (Compare the characterization of electronic surveillance as ‘inhuman’ (page 30) and indeed ‘fundamentally anti-human (page 29) in Re Puretex Knitting Co. Ltd. and Canadian Textile and Chemical Union (1979) 23 L.A.C. (2d) 14 (Ellis).)

As the Union presents its case, the main argument to the intrusiveness of the video surveillance sys-tem is its capacity for monitoring employees, whether in real time or by systematic subsequent review of the recordings. I accept the Employer’s evidence that it does not monitor employees.

Arbitrator Craven focuses on the use of the cameras rather than their mere presence. Not surprisingly then, he was uncomfortable about the lack of:

• policy-based restrictions on the use of data (i.e. about the risk of “scope creep”);
• the absence of a formal data retention rule; and
• (most interestingly) the absence of rules governing union access to data.

Based on a separate finding that the employer had breached a technological change provision in its collective agreement by not engaging in discussions with the union when it expanded the system, he ordered the employer to meet with the union to engage in discussions, implying that the parties should deal with his concerns by way of mutual agreement.

Cargil Foods, a Division of Cargill Ltd. v. United Food and Commercial Workers International Union, Local 633 (Privacy Grievance), [2008] O.L.A.A. No. 393 (Craven) (QL).

On June 2nd, a New Brunswick Provincial Court judge excluded evidence on a hard drive obtained by the Canada Revenue Agency pursuant to a search warrant.

The dispute related to files that were stored on the hard drive but were also beyond the temporal scope of the search warrant and over which the accused consistently asserted an expectation of privacy. The motions judge found that the CRA did not act improperly by seizing the hard drive, but breached section 8 of the Charter because it did not immediately file an amended return before the issuing judge and undertake not to use the out-of-scope records. He found a second breach because the CRA, instead, used the out-of-scope records to file a second search warrant in another unrelated investigation. The judge cited Celanese after stressing the government’s duty to exercise caution in searching intermingled documents.

Given the nature of storage of computer records and the process of identification and retrieval, seizure of a computer hard drive could inadvertently effect seizure of documents outside the time frame specified in the warrant.

However, seizing agents must be mindful both of the potential for intermingled documents in computer searches and the need to exercise discretion in protecting documents seized in such manner.

The section 24(2) analysis turned on the seriousness of the breach, which the judge characterized as a “clear pattern of a continuous obtrusive breach.”

R. v. Daley, 2008 NBPC 29 (CanLII).

In this February 12 arbitration award, Arbitrator Albertyn articulates a novel and forgiving standard for use of surreptitious video surveillance as follows:

The proper context for evaluating the reasonableness of the decision to undertake the surveillance is not the ideal circumstance in which no stone is left unturned. Every aspect of the motivation need not be perfect and yet the decision may be reasonable. The question is one of weight. In every context in which a surveillance decision is made, there will be some things the employer failed to think about, there will be some check or some information which could usefully have been obtained in advance, which the employer failed to obtain. Hindsight and skilful advocacy will show what more could have been done. A gap here or there will not necessarily be fatal, though, to the reasonableness of the decision. Determining the reasonableness requires making a decision as to whether, taken overall with the lack of information that might have been obtained, and with the information that was available and was obtained, was the employer cavalier, capricious, arbitrary or careless in arriving at the decision to initiate surveillance. If, taken overall, despite the flaws in the information the employer had, the employer can show itself to have been bona fide, thoughtful and careful in arriving at the decision, and to have had substantive grounds for suspicion, the surveillance will be reasonable.

The reasonableness standard applies because the mutual respect of management and employees requires that an employee be given the benefit of the doubt until the employee has given some reasonable cause for the employer to believe (possibly erroneously) that the employee is cheating, taking advantage of the situation and obtaining a benefit that is not justified.

In the circumstances, Mr. Albertyn allowed the evidence to be admitted. He said:

I find, despite some deficiencies, that Ms. Peters had reasonable cause for her decision to use surveillance. As Employer counsel submits, Ms. Peters was not acting on a whim. From her perspective, the Grievor had been duplicitous in the past, her attendance record was bad, she appeared not to have needed physiotherapy when she worked previously at PMH, there were no restrictions on what the Grievor could do at work yet the physiotherapy had gone on for many weeks, and, had Ms. Peters asked the Grievor for consent to check on her continuing need for physiotherapy, she thought she might face another harassment complaint. Taken together, there was enough for her to doubt the veracity of the Grievor’s continuing visits to physiotherapy, week after week, and to warrant undertaking a check to see if her suspicions were justified.

Re University Health Network and Ontario Public Sector Employees Union, 2008 CanLII 4546 (ON L.A.).

On February 22nd, the Ontario Superior Court of Justice dismissed a Charter application that claimed RBC violated section 8 of the Charter in investigating a case of mortgage fraud.

RBC had collected information from T-D Bank which allowed it to pursue an alleged fraud. Both banks are members of the Bank Crime Investigation Office of the Canadian Bankers Association, a designated “investigative body” under PIPEDA. They relied on sections 7(3)(d)(i) and (h.2) of PIPEDA in sharing the information. The Applicants took issue with these provisions and RBC’s actions taken in reliance on these provisions. They read:

(3)… an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is…

(d) made on the initiative of the organization to an investigative body… and the organization…

(i) has reasonable grounds to believe that the information relates to a breach of an agreement or a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed…

(h.2) made by an investigative body and the disclosure is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province…

The Court held this grant of discretion to make disclosures did not necessarily threaten Charter rights, so was not unlawful itself. It also held that RBC was not acting as a government agent in its investigation and therefore was not bound directly by the Charter.

Royal Bank of Canada v. Welton, 2008 CanLI 6648 (ON S.C.).

The Supreme Court of Canada is scheduled to hear an appeal of Blood Tribe Department of Health v. Canada (Privacy Commissioner) on February 21, 2008.  The case will present an opportunity for the Court to comment on a principle it first articulated in 1982 in Descoteaux v. Mierzwinski - that laws authorizing interference with solicitor-client privilege must be interpreted restrictively.  Of perhaps greater interest, it will be the Court’s first opportunity to provide significant commentary on the Personal Information Protection and Electronic Documents Act.

The dispute arose when the respondent to a complaint alleging a failure to provide access to personal information refused to produce records of communications that it claimed to be subject to solicitor-client privilege.  In demanding the records be produced, the Commissioner relied on the investigatory powers granted by section 12 of PIPEDA, a broadly-worded provision which does not expressly grant the power to order the production of records over which solicitor-client privilege is claimed. 

Litigation ensued and the Federal Court held that the Commissioner had the power to order production.  It did so by applying a purposive analysis, stressing the Commissioner’s “central role in achieving the important objectives of the legislative scheme.”

The Federal Court of Appeal disagreed with the lower court’s approach, which it found to be inconsistent with the Mierzwinski strict interpretation principle and the concept of solicitor-client privilege as a substantive rule of law.  It stated:

In short, the reason express language is required to abrogate solicitor‑client privilege is because it is presumptively inviolate. The exception for solicitor‑client privilege in the PIPEDA is not what shelters privileged documents from disclosure. The law of privilege does that. The exception simply recognizes that privilege.

There are some finer points to the Federal Court of Appeal’s decision that may also catch the Supreme Court’s interest, including (1) whether the principles developed in interpreting the federal Privacy Act should be applied in interpreting PIPEDA and (2) what effect should be given to language authorizing the exercise of powers “to the same manner and to the same extent as a superior court.”

Blood Tribe is likely to remain relevant given that Parliament’s Standing Committee on Access to Information, Privacy and Ethics made a rather moderate recommendation in its recent Statutory Review of the Personal Information and Electronic Documents Act.  Asked by the Privacy Commissioner to address the gap to her investigatory powers identified by the Federal Court of Appeal in Blood Tribe, the Standing Committee only recommended that PIPEDA be amended to expressly permit her to apply to the Federal Court for an expedited review of solicitor-client privilege claims. 

On October 4th, a 6-3 majority of the Supreme Court of Canada held that an investigating police officer owes a private law duty of care to the suspect under investigation. This is a duty of care case and not directly about information and privacy. There are, however, a couple of points of significance to readers of this blog.

First, investigations obviously involve the collection of personal information, and the new duty will inform such collections. Unlike section 8 of the Canadian Charter of Rights and Freedoms, which only operates to restrict the collection of information, the new duty could conceivably require its collection. In fact, in this case one of the allegations was that the police breached their duty of care by failing to re-investigate after receiving exculpatory evidence after charges were laid. Based on the majority’s reasoning, there is no reason why a private investigator or a member of a company’s audit or security staff would not be found to be subject to an analogous duty quite apart from any factors related to the underlying relationship between the investigator’s principal and her suspect.

Second, this is the first time the Supreme Court of Canada has commented on the important Jane Doe duty to warn case, which was relied upon by the majority (of five judges) at the Court of Appeal in recognizing the new duty. Writing for the majority of the Supreme Court, McLachlin C.J.C. said that Jane Doe was not analogous and noted that there is significant debate over the content and the scope of its ratio. For the minority, Charron J., went further and explained:

Hence, the trial judge in Jane Doe held that where the police are aware of a specific threat to a specific group of individuals, the police have a duty to inform those individuals of the specific threat in question so that they may take steps to protect themselves from harm. As Moldaver J. (as he then was) said, speaking for the Divisional Court in confirming that the action could proceed to trial, “[w]hile the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk”: Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 72 D.L.R. (4th) 580, at p. 584. Hence, Jane Doe cannot be read to stand for the wide proposition that the police owe a general duty of care to all potential victims of crime. Such an interpretation would ignore the fact that there must be more than mere foreseeability of harm before a duty of care will arise; there must also be sufficient proximity between the parties and the absence of policy considerations negating the existence of any prima facie duty of care.

Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41.