Happy New Year everyone!

It’s been a great year for this blog, capped off by sharing the Clawbies award for Best Practitioner Blog with Erik MacGraken.and his BC Injury Law and ICBC Claim Blog. Congrats to Erik and all the other winners and finalists. Also, thank you to Steve Matthews of Stem Legal for supporting the Clawbies project and all the people who nominated All About Information. It’s very nice to be appreciated.

As for the refresh, I whinged a little last summer about needing to close this blog down, but have opted instead to do something less radical to keep All About Information feeling fresh. So I opted for a new theme – WordPress’ “Journalist v. 1.9″ – and a slightly expanded scope of coverage. Libel and slander issues are coming to me often now in my practice, and there’s a strong enough link to a blog focused on “information law” to justify bringing this highly-relevant subject area within scope.

Looking forward to another great year. All the best!

Dan

Happy holidays everyone! I hope you’re enjoying yours as I am mine, out here in Halifax with family and surf. I am still reading and blogging, and made a list of top information and privacy cases for 2009. Most of the cases will be familiar to regular readers. Check it out over at Slaw. Dan.

Steve Matthews of Stem Legal and the Law Firm Web Strategy Blog has announced that nominations for the 2009 Clawbies are now open.

Since Steve said that his invite was coming, I’ve been thinking about where I was going to spend my votes and what I like about a blog. I concluded that it’s more about the blogger than the blog for me. With that in mind, here are my nominations.

1. David Fraser’s Canadian Privacy Law Blog. I like David’s blog because he’s really, really into privacy and it shows in his blog and his other public activities. And David seems to get the scoop on good cases, either from a contact or from being involved (like on the strange and fascinating Lisa Raitt lost tape case). Finally, David’s also probably the only one of Lexpert’s Top 40 Under 40 with a blog. Congrats and thanks David!
2. Michael Fitzgibbon’s Thoughts From a Management Lawyer. Mike doesn’t post as much as he used to, but when he does it’s good. His analysis is always tight but his style is casual, which makes for a presentation I admire greatly. Finally, Mike has been generous to me even though I’m at a competitor management-side employment firm. In other words, he understands what online social networking is really about. Thanks Mike.
3. ABLawg.ca. This is the University of Calgary Faculty of Law blog. It’s a regional blog, which is distinguishes it from Osgoode’s competitive offering – ultra-heavyweight two-time Clawbie winner The Court. I like The Court, but actually find ABLawg a more useful practice support, with content of day-to-day relevance. The current headlining post, for example, is on an FOI case. Unreal!

I wish I had more votes. Slaw is awesome, and I’m having a great time writing for it. I’ve also enjoyed getting to know Omar Ha-Redeye. Omar’s so high profile, but should not be underestimated because of it. He’s a pretty fascinating guy, with a lot of things to say that are well worth a listen. Finally, Antonin Pribetic – “The Trial Warrior” – is amazing. His content is right down my alley. I only wish I could keep up!

Thanks all! Good year.

Dan

On November 23rd, the British Columbia Supreme Court issued a judgment striking out a privacy breach claim brought by an incumbent union against another union engaged in a so-called membership raid.

The incumbent (the HEU) argued that the raiding union (the BCNU) breached the British Columbia Privacy Act and the British Columbia Personal Information Protection Act by misusing personal information collected from its members in executing a “high pressure campaign.” The BCNU moved to strike the claim. It argued (1) the HEU had no standing to sue on behalf of its members (whether named or not); and (2) PIPA does not support a civil cause of action.

The Court agreed with both arguments. It concluded that both the Privacy Act and PIPA grant an individual right of privacy that cannot be asserted by a union on behalf of its members: “This is a radical defect; the plaintiffs have no entitlement to bring an action based on a violation of another person’s privacy.” On whether PIPA supports a civil cause of action, it said:

PIPA provides an adequate administrative scheme. I find support for this in the provisions of PIPA generally and specifically in s. 57. Section 57 clearly shows that the Legislature considered the issue of civil claims; it only included a right for an individual to advance a claim against an organization for damages after the commissioner has made an order. This has not occurred here.

The Court also struck claims based on fraudulent misrepresentation and deceit, leaving the HEU action to proceed on the basis of interference with contractual and economic relations.

Facilities Subsector Bargaining Association v. British Columbia Nurses’ Union, 2009 BCSC 1562 (CanLII).

On October 2nd, Pringle J. of the Ontario Court of Justice held that the police violated section 8 of the Charter by obtaining the identity of an individual suspected of possessing and sharing child pornography by making simple letter request to an ISP. She also admitted the evidence despite the Charter breach, and in doing so made some significant comments about the impact of terms of service on internet user privacy.

There have been a number of recent Canadian cases about whether the police can investigate internet crime by asking an ISP to reveal the identity of the individual linked to an IP address that is associated with unlawful and anonymous activity. The cases turn on whether this investigatory tactic violates a reasonable expectation of privacy. Two factors have featured strongly in the analysis (1) the nature of the information obtained by the police and (2) the contractual terms between the individual and ISP.

Unlike some other judges who have decided the issue, Justice Pringle held that the nature of the information obtained by a police request to an ISP does go to an individual’s biographical core. She explained that this tactic allows the police obtain the identity of an otherwise anonymous internet user and not simply an ISP subscriber’s name and address:

Once the police accessed Mr. Cuttell’s name and address, they were able to link his identity to a wealth of intensely personal information. Linking his name to the shared folder under his IP address, police learned a great deal about Douglas Cuttell and his lifestyle: namely in this case, his interest in adult pornography, obscenity and child pornography, which were all revealed by his choice of shared files.

Pringle J.’s treatment of the contract is even more significant. Like other judges before her, she held the that a contract between the ISP subscriber and ISP can negate an otherwise reasonable expectation of privacy. In the case before Pringle J., however, the Crown did not prove the specific contract entered into between the defendant and his ISP and therefore failed to negate what Pringle J. called a “premise of confidentiality” regarding one’s ability to engage in anonymous internet use. Her judgement suggests that reliance on ISPs alone does not negate an otherwise reasonable expectation of privacy in anonymous internet use, but the specific terms of service an individual agrees to may change this.

Ultimately, ISP terms of service did have a significant influence on the outcome in this case even though the Crown failed to prove the defendant’s specific contract. Pringle J. decided to admit the impugned evidence despite the proven Charter breach, in part, because ISPs often put customers on notice that they will make disclosures to law enforcement. She said:

I also take into account that while the privacy of subscriber information is important and can provide a critical link to personal information, a subscriber name and address does not have a great deal of intrinsic privacy on its own. As the Crown pointed out, Mr. Cuttell’s name was publicly available on Canada411, and his shared folder was also publicly available to anyone wanting to share child pornography. Many Internet Service Providers appear to contract out of their obligation of confidentiality with subscribers in similar circumstances, and accordingly it would be difficult to argue that there is a high expectation of privacy in this information: see Grant at para. 77.

In conclusion, Pringle J. said that the practice of contracting for disclosure is “unfortunate,” but also suggested that the courts will  often be powerless to grant a Charter remedy in the face of such private action.

Thanks to David Fraser for breaking the news this case. For his related opinion piece on Slaw, click here.

R. v. Cuttell, 2009 ONCJ 471 (CanLII).

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.

On June 30th, the Nova Scotia Supreme Court issued a judgment in which it dismissed a motion for production of documents. Though a routine motion, the Court’s reasoning may demonstrate a more modern approach to production in civil disputes, and one arguably invited by the pending changes to Ontario’s Rules of Civil Procedure.

The plaintiffs brought a motion for production in furtherance of their action against an investment dealer and an individual investment advisor. They sought documents pertaining to complaints brought by other clients against the advisor based on a claim that the dealer failed to supervise the advisor. The Court applied the “semblance of relevance” test called for by Nova Scotia’s now-replaced Civil Procedure Rules and held that the records should not be produced. Though it framed its analysis as being about relevance, the Court clearly weighed the relative value of production against its impact on non-party privacy:

In my view, the documents pertaining to other clients’ trading accounts handled by Mr. Bagnell under Mr. Youden’s supervision fail to meet the test of relevancy. Similar act evidence of this sort has little probative value to an examination of the handling of the plaintiffs’ trading accounts and in my opinion, is not necessary for disposing fairly of the proceeding. The subject allegation of inadequate supervision, whether framed in negligence or as a breach of fiduciary duty or breach of contract, will require the court to determine the appropriate standard of care and/or scope of fiduciary duty owed to the plaintiffs. That is going to be informed largely by evidence of industry standards and practices, the workplace manuals of RBCDS pertaining thereto (which already have been produced), the contract between the parties, and perhaps the introduction of expert opinion evidence. How Mr. Youden supervised the trading accounts of other clients of Mr. Bagnell would have little probative value in this determination, especially where different clients often have different investment objectives and risk tolerances in their trading activities. I am simply not persuaded that the production of these records would likely lead to the discovery of admissible evidence in this action…

The second reason for denying this application is based on confidentiality concerns. If the documents sought were ordered to be produced, there would be some unknown number and identity of other clients whose personal financial affairs would now be disclosed in this litigation, unbeknownst to them. Personal financial information is a very private and sensitive subject to most individuals. While I recognize that the implied undertaking rule would offer some protection, confidentiality concerns nonetheless remain and in the absence of any compelling argument of relevance such that the production of these documents is necessary for disposing fairly of the proceeding, those confidentiality concerns become an added reason for the dismissal of this application.

This is arguably the type of reasoning that will be invited when Ontario’s new Rules of Civil Procedure come into force on January 1, 2010. The landmark changes to the Rules will be brought in by O. Reg 438/08. This amending regulation will establish proportionality as a governing principle for interpreting the Rules, establish bare relevance as the threshold for production and establish a list of factors that a judge or master should consider in making discovery-related orders. The amendments do not expressly contemplate protection of non-party privacy as a relevant factor, and the impetus to the Rule changes (the Osborne Report) is primarily about affordability of civil justice as between parties to litigation. The changes do, however, invite a more nuanced approach to civil production, and the balancing of non-party privacy interests reflected in this Nova Scotia case may become more common.

MacGowan v. RBC Dominion Securities Inc., 2008 NSSC 421.

Here are my recent links of note from June 22nd.

If you’re interested in the law relating to corporate e-mail systems, be sure to check out Stengart v. Loving Care Agency Inc., linked through the fifth bullet below. It’s a New Jersey case about whether an employee waived privilege in solicitor-client communications by sending them through a personal internet-based e-mail account on a work computer. The e-mails were recovered by the employer, who claimed it could use them in post-employment litigation with the employee. The Court makes some extremely strong statements against employer control over “personal” communications on work systems – some of the strongest I’ve read.

I find the reasoning in Stengart troubling, but am withholding an opinion pending further thought. What’s immediately remarkable to me, however, is how value-laden these e-mail judgements are. Try reading the Alberta Court of Appeal’s recent Poliquin decision and Stengart back-to-back and you’ll see what I mean. This is not good in my view. As a management side advisor and advocate I’m not inclined to promote the enactment of privacy legislation, but if we are going to have enforceable privacy rights, enacting good and balanced privacy legislation might be a way to make such rights understandable. Without predictability, policy-making will be difficult and litigation of reasonable positions might be prohibited by risks that cannot be controlled. These thoughts to be continued at a later date.

• Liked Mike Fitzgibbon’s Summary Judgement in Employment Disputes: http://bit.ly/PHB7y
• RT @marciahofmann: Associated Press imposes strict social networking policy on staff. http://bit.ly/141mCZ (via @dmkravets) [Thank you!]
• Editing Tip: Spell Out Numbers One to Ten, and Don’t Repeat Them in Parentheses: http://bit.ly/6yVHD [Via @eschaeff]
• RT @sectorprivate Some Professors’ Jitters Over Twitter Are Easing http://tinyurl.com/ktxwrq [Thanks Greg!]
• RT @nggauthier The Perils and Promise of the New Jersey Workplace Privacy Ruling: http://bit.ly/U2Kif
• NYT editorial on college binge drinking: http://bit.ly/19J7N7
• RT @PrivacyLaw “Lawsuit against Jefferson County Public Schools” http://tinyurl.com/mf358p
• The Ann Arbour Chronicle argues for e-FOI:http://bit.ly/viW4J
• RT @PrivacyLaw: “Canadian gov’t: you have no expectation of privacy on the Internet” http://tinyurl.com/m5scnk

On a personal note, Seanna and I are new parents of Penelope Green Robinson. She was born two days ago and is very healthy. “Green” is from Joni Mitchell’s song “Little Green” – a lovely (though sad) song about a mother’s love for child. Here’s a pic of PG and her brother Bug, who has been very welcoming. As for me, I’m feeling very grateful for my family and for the wonders of life.

See ya!

Dan

Yesterday, the Ontario Court of Appeal held that a police service lawfully disclosed information about an individual’s withdrawn criminal charges in the course of administering background checks.

The applicant, a social services worker, was charged with four counts of sexual assault and four counts of sexual exploitation. At trial, the charges were withdrawn and the applicant entered a peace bond. The applicant was later denied a license for a group home, denied employment and terminated from employment, assumingly based on information provided after conducting a vulnerable persons search. In response, he brought a successful application for an order to have information about the withdrawn charges expunged from police records.

The Court of Appeal held that the applications judge erred to the extent that he found that the applicant did not give specific consent to the disclosure of the withdrawn charges. The Court held that consent to disclose this information could be inferred in the circumstances even though the written consent form did not expressly refer to withdrawn charges. This essential finding is illustrative but fact-based. More broadly, however, the Court also found that the consent was not invalid because it was coercive. It said the following about the fairness of background checks:

The fact that a person effectively must consent to a Vulnerable Persons Search in order to apply for certain types of jobs may be perceived as coercive and, in that way, possibly unfair. In regards to this alleged coercion, the affidavit evidence in this case indicates that these searches are necessary in order to give prospective employers involved with vulnerable persons all potentially relevant information about potential employees, within the bounds of the permissible disclosure of personal information under MFIPPA. Also, in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.

The Court also rejected arguments that the disclosure breached the applicant’s rights under sections 7 and 8 of the Charter.

This highlights the vulnerability of individuals in Ontario who are charged of criminal offences but not convicted given the recent finding by the Human Rights Tribunal of Ontario that the “record of offences” protected ground does not protect persons only charged with offences. See de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII). [Addendum: A contact has told me the complainant in de Pelham has stated his intent to file an application for judicial review.]

Tadros v. Peel (Police Service), 2009 ONCA 442.

We’ve published or Privacy Post caselaw digest, covering relevant developments in Canadian information management and privacy law. The link is here. And the following is our lead-in.

So what’s new?

Much has been said about Leduc v. Roman, the case in which Mr. Justice Brown of the Ontario Superior Court of Justice granted leave to cross-examine a plaintiff in a motor vehicle accident suit about the nature of content he posted on his Facebook profile. This is the second Ontario case in which a judge has shown little appreciation for an argument that information .posted in a “friends only” section of a social networking profile page should be treated as private in considering the appropriateness of production. Leduc is significant, but there are a number of other decisions we’ve reported that also demonstrate an intensifying new dialogue on the law of production and personal privacy. If you’re interested in this subject, Warman v. Wilkins-Fournier (on anonymous internet use) and British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd. (on non-party participation rights) are worth a read.

We’ve also covered the numerous recent “lawful access” cases – cases in which criminal defendants have argued that their Charter right to be free from unreasonable search and seizure has been violated because police have requested and obtained information from organizations to further an investigation, without seeking a warrant. For what these cases mean to employers, please see our recent client bulletin, Pretty Please: Police requests for employee personnel files.

Please check it out and enjoy!