All About Information

Today, the Ontario Court of Appeal allowed an appeal of a noteworthy case about breach of privilege by the Crown.

The case involves an investigation report prepared at the request of external legal counsel after a critical injury for which Occupational Health and Safety Act charges were ultimately laid. An employee who was given a draft of the report on the undertaking he destroy it gave a copy to the Crown. This was after the company had asserted privilege to the Ministry inspector, who had agreed not to order the report’s production.

When the Crown disclosed the report to the company in its Stinchcombe production the company immediately objected, and at trial moved before a justice of the peace for a declaration (that the report was privileged) and a stay. It initially succeeded in obtaining a declaration, a stay and an order for $38,000 in legal costs. On appeal to a judge, the Court overturned the stay and the costs order. It held that the proper remedy for breach of the defendants’ section 8 rights was an order excluding the report and that the motion for a stay based on prejudice to trial fairness was premature.

In allowing the appeal, the Court of Appeal started by minimizing a statement made by the justice of the peace about the reporting being “primarily informational.” It held the lower court had found the report was subject to solicitor-client privilege and that this point was not challenged in the appeal.

The Court of Appeal then held that the presumption of prejudice endorsed by a majority of the Supreme Court of Canada in Celanese applies when the Crown comes into possession of a defendant’s solicitor-client communications:

Counsel for the Crown in this court sought to distinguish Celanese on the basis that it was a civil case in which the appellants were “attempting to utilize a civil onus to achieve a criminal result”. I reject this submission. In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.

On the facts, the Court of Appeal held that a stay was the appropriate remedy. The basis for the finding is narrow. It stressed that the justice of the peace had made a specific finding that the report set out items that could be used to the disadvantage and prejudice of the defendants and held that the Crown had not led any evidence about its distribution and use of the report to rebut the inference.

R v. Bruce Power, 2009 ONCA 573.

Today, the Ontario Court of Appeal 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. They 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.

Last September, the Divisional 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 Court of Appeal fully endorsed the Divisional Court’s reasoning and made clear that the power to compel observation of surgery applies notwithstanding recent amendments to the Code. Its reasoning stressed that the plain meaning of the words “inquire into and examine” and the purpose of the self-regulatory enactment outweighed any narrowing inference about legislative intent that might be drawn from the other text in the Code. It rejected the appellants’ argument that the Divisional Court erred in failing to consider the entire legislative context, and said, “…it would take clear words to deprive the investigator of powers necessary to carry out this important public interest [in effectively regulating the medical professions].”

Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546. 

Yesterday, the Ontario Court of Appeal granted a stay pending appeal of a September 2008 order in which 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. (Summary here.) The Court of Appeal stay decision indicates the merits of the appeal will be argued on June 10th.

Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 294.

In a judgement dated October 5th of last year, the Federal Court held that the Information Commissioner of Canada acted lawfully in making a confidentiality order that prohibited Crown counsel from sharing information with the Crown that it gained while jointly representing individual Crown servants.

The Crown servants were compelled to give evidence before the Deputy Commissioner in the course of his investigation into an Access to Information Act complaint. Department of Justice counsel accompanied the witnesses and acted as their counsel. In order to preserve the integrity of his investigation, the Deputy Commissioner prohibited the witnesses from disclosing the questions asked, answers given and exhibits used in the examination and prohibited counsel from disclosing the same. The Crown applied for judicial review of the orders, arguing that they interfered with its solicitor-client relationship with Crown counsel.

The Court held that the Information Commissioner has an implicit power to make confidentiality orders and that the potential for a conflict of interest given the witnesses were not high-ranking officials made the Deputy Commissioner’s orders reasonable and necessary in the circumstances. It said:

Counsel for the applicant countered that there is absolutely no factual or evidentiary foundation for the proposition that such a conflict of interest exists or is even likely to come up in the present circumstances, and that the decision and orders are therefore founded on speculation and unsubstantiated assumptions. The only reason that the individuals were subpoenaed by the Deputy Commissioner was on account of their activities on behalf of the Crown. Since they were not examined in their personal capacity but rather in their professional capacity as Crown servants and employees, there can be no conflict of interest in this proceeding between the individuals and the Crown, according to the applicant’s argument.

I must confess that I am somewhat troubled by this automatic and necessary assimilation of the Crown’s and the employees’ interests. As a general rule, I am prepared to concede that it is unlikely the employees’ views with respect to the disclosure of a document will differ from those of the senior management of the Department involved. But the possibility cannot be ruled out entirely, especially when the employees subpoenaed by the Commissioner are not in the higher ranks of the Department but rather at the lower level. Similarly, I can easily envisage situations where there is no conflict at the outset but conflict develops as the questioning proceeds and the investigation unfolds. It is in those kinds of circumstances that employees must have the assurance that they will remain in control of the disclosure of their testimonies notwithstanding the fact that their counsel play a dual role.

I agree with the respondent that the investigatory process would simply be unworkable and profoundly undermined if the Attorney General had a de facto right to attend all hearings simply by providing a counsel to the witnesses compelled to give evidence.

The Court also rejected an argument that the confidentiality orders unjustifiably violated section 2(b) of the Charter.

Canada (Attorney General) v. Canada (Information Commissioner) (F.C.), [2008] F.C.J. No. 1235 (F.C.) (QL).

It’s all too common for employers to find child pornography on their computer systems.  In Ontario, until now, deciding whether or not to report it to the authorities was difficult.  It was important to pay heed to the potential for obstruction of justice charges in some circumstances, but for the most part the decision to report was an employer’s to make based on practical and ethical considerations.  This has changed with the December 4th passage of Bill 37, the Child Pornography Reporting Act, 2008.

Bill 37 will amend the Child and Family Services Act on a date to be named.  The CFSA has long-featured a duty to report a child in need of protection to a children’s aid society.  The amendment will mean that any child who is exploited by child pornography will, in most circumstances, be deemed to be in need of protection.  The amendment also creates a new duty to report what a person reasonably believes “is” or “might be” child pornography to an entity that will be designated later by regulation.  The duty applies to all persons, not just those owning or operating computer systems (such as employers) and those providing risk-related services (such as ISPs and photograph developers).  A failure to report will be punishable by fine of not more than $50,000 and/or imprisonment of up to two years.

Thank you to Slaw and John Gregory for first noting this significant amendment.

Addendum.  There are a couple twists to this legislation that are worth considering. First, the duty appears to hinge on a subjective belief that the material is (or might be) child pornography, which has a narrowing effect. Second, it appears that an employee of a corporation who discovers child pornography on his or her employer’s system will have an independent duty to report that will not be discharged by his or her employer’s report.  As, discussed above, the duty applies broadly, to all “persons.”  The legislation also specifies that a person must report “directly,” which means a person cannot rely on another to report.  This seems to require multiple reports by all those who handle the offending material.

On November 14th, the Alberta Court of Appeal held that an appeal by the Alberta Information and Privacy Commissioner was moot because the complainant had passed away.  This leaves intact the Alberta Queen’s Bench’s decision that the 90-day time limit for completing an inquiry in section 50(5) of PIPA is mandatory.  It also may do away with the first drug testing complaint brought under PIPA.

Kellogg Brown and Root Canada v. Alberta (Information and Privacy Commissioner), 2008 ABCA 384 (CanLII).

On November 11th, the Federal Court dismissed an appeal in the eBay “PowerSellers case.”  

This was an appeal of eBay’s unsuccessful application to vacate a production order made under section 231.2 of the Income Tax Act. The order required two Canadian eBay subsidiaries to produce data about specific Canadian eBay users that resided on servers operated by eBay’s American subsidiary in the United States.

The Court of Appeal held:

• that the data sought was not “located” in the United States (and therefore subject to different production power) given eBay Canada’s right of access to the information and ready means of gaining access to the information;
• that it should not depart from its recent decision in Greater Montreal Real Estate Board, where it held that an production order seeking access to information unnamed persons under section 231.2 may be granted if the information is “required to verify compliance with the Act by one or more unnamed persons in the group” or that “the information is required for a tax audit conducted in good faith”; and
• that the motions judge did not err by failing to give notice to eBay US and eBay International, who were said by eBay Canada to “own” the records and information in question.

Hat tip to Michael Geist, who provides his views on the case here.

eBay Canada Limited v. Minister of National Revenue, 2008 FCA 348.

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 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.).

On July 31st, a 4-3 majority of the Supreme Court of Canada held that the Canada Revenue Agency need not seek judicial authorization to examine information about one taxpayer’s compliance by auditing another.

The case involved an audit of a university’s charitable foundation. The CRA sought to examine the Foundation’s records to determine whether it was receiving valid charitable donations. There was no dispute that, at the same time, it intended to pursue individual donors who may have made donations it expected to be invalid.

The question, given the CRA’s dual purpose, was whether it could seek Foundation records that would identify individual donors under its section 231.1 audit power (which allows it to look at a taxpayer’s records without judicial authorization) or whether it needed to rely on its section 231.2 production power (which allows it to look at a person’s records which relate to one or more “unnamed persons,” but only with judicial authorization).

The majority, in a judgement written jointly by McLachlin C.J. and Lebel J., held that the CRA does not need judicial authorization in conducting audits that are aimed at both parties to a tax-related transaction: “The s. 231.2(2) [judicial authorization] requirement should not apply to situations in which the requested information is required in order to verify the compliance of the taxpayer being audited.” It held that section 321.2 still has a meaningful role in the enforcement scheme because the CRA may need to seek information outside of a formal audit.

Rothstein J. wrote the dissenting judgement, and argued that the majority’s interpretation leaves no meaningful role for section 231.2. He argued that Parliament intended the requirement for judicial authorization that is embedded section 231.2(2) to be engaged whenever the CRA seeks information about “unnamed persons” through an audit of a taxpayer, even if the taxpayer’s own compliance is at issue.

This was a very close one to call, which makes me question whether it reveals something about the extent to which each of our top court’s justices value privacy. Justice Rothstein, however, adamantly declares that he differs with the majority only on a point of statutory interpretation and because the production power in section 231.2 ought to be given a meaningful role in the enforcement scheme. It seems to me that the eBay case (see here and here), where the CRA utilized section 231.2 to demand production of the account and transaction records of eBay “PowerSellers,” leaves a role for this provision despite the majority’s finding; in that instance, eBay was simply a record holder rather than a party to the tax-related transaction.

Redeemer Foundation v. Canada (National Revenue), 2008 SCC 46.