All About Information

The Ontario Court of Appeal issued reasons today for orally dismissing an application brought by Canadian Civil Liberties Association to intervene in the appeal of Tadros v. Peel Regional Police Services. This is a case from last October in which the Ontario Superior Court of Justice held that a police service unlawfully disclosed information about an individual’s withdrawn criminal charges in the course of conducting background checks (see “Breadth of disclosure in criminal background checks unlawful” here). The Court of Appeal’s procedural decision indicates that the merits of the appeal were to be heard yesterday and the day before.

The Court reports that leave to appeal the Ontario Court of Appeal’s decision in R. v. National Post was granted this week.  The case is about the circumstances in which journalists may claim a case-by-case privilege over their communications with confidential sources.  Click here for my summary.  The SCC docket number is 32601.

The Court also reports that the Ontario Court of Appeal’s decision in The Criminal Lawyers’ Association v. Ontario (Public Safety and Security) will be heard on December 11th.  This is the case in which the Ontario Court of Appeal held that the public interest override clause in the Ontario FIPPA (and by implication the equivalent provision in MFIPPA) breached section 2(b) of the Charter because it did not allow an override of the law enforcement and solicitor-client privilege exemptions to the right of public access. The SCC docket number is 32172.

Finally, the Calgary Health Region has filed an application for leave to appeal the Alberta Court of Appeal’s decision in Innovative Health Group v. Calgary Health Region.  This is an e-discovery case that is about how courts should exercise their discretion to order whole disk inspections.  Click here for my summary.  The SCC docket number is 32788. Framed as above, it wouldn’t be a bad issue to get some national guidance on, and the jurisprudence does reflect a range in attitudes, from the very pro-production (characterized by the slightly qualified decision in Hummingbird v. Mustafa) to the very pro-protection as in Innovative Health Group itself. If not of “public importance,” the case is certainly interesting, and draws in issues related to litigation and third-party privacy and the cost of discovery.  We’ll see.

In 2004, the federal government passed Bill C-45, An Act to Amend the Criminal Code (capital markets fraud and evidence gathering). The Act is most known in my practice for creating criminal whistleblower protection, but it also created a new investigative tool called a “production order” by which third-parties may be required to produce documents, produce data or even prepare documents (based on existing data) for production. A production order is meant to be an easier-to-administer alterative to search warrants. The Department of Justice backgrounder on the Bill also says production orders are privacy-protective because they do not involve the fishing that’s associated with the execution of a search warrant.

In Telus Mobility, the basic issue is whether a third-party can seek reimbursement for the costs of complying with a production order. According to Julian Ho’s good summary at The Court, the Supreme Court of Canada will hear oral arguments on the case on December 13th. Julian’s detailed summary of the case is here.

The Alberta Court of Appeal heard the Kellogg Brown & Root drug testing appeal on October 11th and has reserved judgement. The case will give Alberta’s highest court an important opportunity to consider the circumstances in which casual drug users are protected under human rights legislation based on the perceived disability doctrine. This has been an issue that has caused some uncertainty since the Ontario Court of Appeal’s landmark Entrop v. Imperial Oil judgement in 2000.

Kellogg Brown & Root is about an employee who was terminated 10 days into employment after a pre-employment drug test came back positive for cannabis. He was never impaired at work and testified that that he was only a casual marijuana user. In 2005, an Alberta Human Rights Panel dismissed the employee’s complaint because it was not based on any real or perceived disability and, alternatively, because the testing policy was not reasonably necessary.

In June 2006 the Alberta Court of Queen’s Bench reviewed all of the case law on perceived disability and acknowledged that there is a “difference of opinion” over the right of casual drug users to protection from discrimination. In the end, it chose to adopt the approach taken in Entrop, which allows for a finding of prima facie discrimination based on the circumstances in which the relevant distinction is made. As in Entrop, the Court held that the complainant was treated as if he was drug dependent and likely to report to work impaired. Recall that the policy in Entrop explicitly stated, “In the cycle of substance abuse, users frequently experimenting with drugs progress to the dependent user state later on.” The Court held that this approach to casual users could be implied in any zero tolerance policy and (criticizing a significant Canadian Human Rights Tribunal decision called Milazzo) held that an employer cannot defend against a discrimination claim by proving a subjective belief that the complainant was a casual user.

The Court then held that pre-employment testing was not reasonably necessary to satisfying the objective of “prohibiting workplace impairment.” Its reasoning is summarized in the following sentence: “While there is a rational connection between impairment and job performance, the link between a positive pre-employment urine test and workplace impairment is tenuous and uses predictions based on statistical risk to bar particular people.” More significantly, the Court suggested a number of ways by which the employer could have built a standard which was more accommodative and better connected to the goal of prohibiting (by predicting) workplace impairment.

Incidentally, and implicitly recognizing that the prima facie discrimination analysis in drug testing cases is tortuous, the Court commented that its okay that human rights legislation may be doing “the work of privacy rights.” Since Alberta employers are subject to employment privacy legislation (the Alberta Personal Information Protection Act) and since Oil Sands employers are clearly applying strict drug testing policies, we might expect a statement on drug testing from the Alberta Information and Privacy Commissioner in the near future. In fact, a PIPA complaint was filed against Kellogg Brown & Root that was recently dismissed on jurisdictional grounds. Until the Privacy Commissioner gets his chance to speak, the Kellogg Brown & Root Alberta Court of Appeal case is the one to watch.

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. 

A significant case on the implied undertaking rule (or deemed undertaking rule, as it may be) is being heard at the Supreme Court of Canada on November 16th.

In Doucette v. Wee Watch Day Care Systems Inc., 2006 BCCA 2662 the British Columbia Court of Appeal held that a party obtaining information in the discovery process can make a bona fide report of criminal conduct to the police without seeking court approval.

The underlying action was a negligence claim against a day care and day care worker which was filed after a child suffered a seizure while under care. The police investigation was ongoing, but the police had not yet laid charges by the time the day care worker’s examination for discovery was scheduled. The day care worker filed a motion to request an express restriction on disclosure of her transcript and the Attorney-General brought a competing motion seeking to vary the implied undertaking to allow disclosure of the discovery transcript to the police. The trial judge held that both motions were premature but declared that the A-G and the police were under an obligation not to cause the parties to violate their undertakings without the day care worker’s consent or leave of the court.

The Court of Appeal acknowledged an exception to the undertaking when disclosure is necessary to prevent serious and imminent harm and then went further to permit disclosure without court approval in non-exigent circumstances:

The conclusion reached by the chambers judge is thoughtful and practical. It does not, however, contemplate the circumstance in which neither party has an interest in or is willing to seek court ordered relief from the disclosure of information under the undertaking or otherwise. Nor does it contemplate non-exigent circumstances of disclosed criminal conduct. It is easy to imagine a situation in which criminal conduct is disclosed in the discovery process, but no one apprehends that immediate harm is likely to result. Nevertheless, if an application to court is required before a party may disclose the alleged conduct, the perpetrator of the crime may be notified of the disclosure and afforded the opportunity to destroy or hide evidence or otherwise conceal his or her involvement in the alleged crime.

In my opinion, the scope of the undertaking must be fashioned in a manner that accommodates these and other eventualities. I conclude that the implied undertaking of confidentiality rule is as stated in Hunt: a party obtaining production of documents or transcriptions of oral examination of discovery is under a general obligation, in most cases, to keep such document confidential. A party seeking to use the discovery evidence other than in the proceedings in which it is produced must obtain the permission of the disclosing party or leave of the court. However, the obligation of confidentiality does not extend to bona fide disclosure of criminal conduct. On the other hand, non-bona fide disclosure of alleged criminal conduct would attract serious civil sanctions for contempt.

The focus of the inquiry is on the use to which the evidence is to be made. A party is limited in the manner in which it can use the discovery evidence as I have indicated above. A non-party, such as the police, who obtains the discovery evidence by lawful means (such as by search warrant) is not prevented from using the evidence to further an investigation. Whether the evidence can be used in a subsequent criminal proceeding is a matter to be considered by the criminal court.

In Ontario the issue is governed by Rule 30.1.01(8) but the analysis is the same. In fact, the Court considered the limited Ontario jurisprudence on the issue and held, to the extent the Ontario jurisprudence favoured a rigorous deemed undertaking rule over the protection of the public interest in the detection and prosecution of crimes, the Ontario jurisprudence should not be followed. See in particular: Linchris Homes Ltd. (1990), 1 O.R. (3d) (G.D.), Perrin v. Beninger, 2004 CanLII 18347 (Ont. S.C.J.) and Klassen v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 4055 (S.C.J.).

This is truly one to watch.

Alex Cameron of the On the Identity Trail project recently wrote a good article on the related issue of privacy and litigation at blog-on-nymity. It’s available here.