I spoke at our Toronto client conference on Monday on two topics. The first was on a topic we called, “The limits of the application game: why employee privacy matters.” It’s on our “patchwork” of employment privacy regulation and the state of the privacy tort. I wrote a paper that should be available for public consumption later, at which point I’ll link to it from here. I also spoke on “The perils of online communication” together with my colleague Mark Mason. We laid out the relevant legal issues, made some policy prescriptions and also discussed some of tactical considerations in responding harmful employee and student communication. I don’t have a full set of notes to publish, but here’s one idea we expressed on the dangers of over-reaching:

You’ll also likely send a cease and desist letter directly to the individual. Here’s the word of warning. Before you send a cease and desist you have to reckon with the risk of a backlash. There’s a community of people who use the internet who value it as a free speech medium. If you send an aggressive letter that targets communication that is lawful, you risk a severe backlash from that community. You could find your cease and desist letter posted online, you could be blogged about and you could have your minor communication issue become magnified 1,000 times over. And that’s not even an exaggeration!

So you have to create a cease and desist that is both firm on the law and demonstrative of a reasonable and measured approach – it has to be consistent with how your organization presents itself to the public so you can be proud of it and stand behind it to the very end. If you don’t have a solid legal claim that supports this approach and you still need to take action, send a different letter. Use a carrot and not a stick. Tell the person you’d be glad to discuss their concern or collaborate in some way but that they have to take down their communication first. It’s not as strong, and you have to be wary of setting a pay-out precedent, but with some creative thinking you may find an out without suffering a backlash because you over-reached. You shouldn’t be intimidated by the masses, but understand that its hard to bluff them with a bogus claim.

Finally, my colleague Catherine Peters and I published a follow-up on managing student violence in response to the recent Kajouji suicide case. It’s available here.

Today was a windsurfing day in Toronto.  Philip Soltysiak was out at Cherry Beach, and I tailed him around watching for a while.  It seems like Philip went from being a ten year old that came up to my waist to to an absolute super-ripper overnight.  He’s competing on the freestyle world tour this year and will no doubt do Canada proud.

Here are my most notable reads of the week:

• Sam Bayard, “Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact.”  A report on a now-settled departing employee and free speech case rolled into one.  It details a November 2007 California decision no a summary judgement motion that dealt with whether an article written by a departed journalist and not published his newspaper could be fairly used by another newspaper in reporting on the journalist’s departure.  (Citizen Media Law Project)
• Ralph Losey, “The Days of the Bates Stamp Are Numbered.”  This picks up on an great law review article Mr. Losey wrote last fall and some recent commentary on Law.com, both about the use of hash values in e-discovery.  (E-Discovery Team)
• Peter Applebome, “Trying to Flesh Out the History of a Family That Was Minus One.”  This probes at an FOI policy issue that has recently been addressed in our Ontario FOI legislation with the addition of a new “compassionate reasons” exception  - the right of an individual to seek personal information about a deceased relative. (See here for more on the exception.) Our health privacy legislation also has a slightly narrower exception to permit (but not necessarily require) health information custodians to disclose the circumstances surrounding the death of an individual.  (New York Times)

Enjoy!

British Columbia arbitrator James Dorsey recently considered what personal information needs to be disclosed to fullfil the purpose of a collective agreement clause that gives a union access to information to assess the propriety of a job competition.

This award follows a 2005 judgement by the British Columbia Court of Appeal in which it held that the purpose for disclosing bargaining unit members’ personal information to the union as contemplated by the clause was consistent with the purpose for which it was collected and therefore permitted under the British Columbia Freedom of Information and Protection of Privacy Act. The Court of Appeal also held that only what is necessary to the purpose should be disclosed to the union, and perhaps unfortunately, said that “personal identifiers” should be redacted from the disclosure.  

Following the Court of Appeal’s judgement, the employer applied a very literal and narrow view of the union’s right to “applications” and a very literal and broad view of the Court’s comment on redacting personal identifiers.  Arbitrator Dorsey held the employer’s position was improper given the purpose of the access to information clause.

He held that the union’s right to “applications” gave it an entitlement to resumes, interview questions and responses, score sheets, and essentially all other records collected and used in the application process except reference information.  He also held that the Court of Appeal’s suggestion to redact personal identifiers did not allow the employer to redact all information that would tend to identify individuals.  Instead, he said:

When using the term “personal identifiers” in this context, the Court of Appeal meant information that is specific to a unique individual.  This includes names and contact information, such as postal, email and other addresses and telephone numbers; passwords, social insurance, drivers licence, care card and financial numbers; and, in the current world, biometrics.  This is information that is often guarded by individuals to avoid identify theft. 

Ontario employers have generally been unsuccessful in resisting disclosures required by labour law on the basis of employee privacy rights.

Re Canadian Office and Professional Employees Union and Coast Mountain Bus Co. (7 September 2007, Dorsey).

[I picked this case up from a Lancaster House bulletin.  Lancaster House is a publishing and conference company that heavily focuses on labour law.  Thanks!] 

The Ontario and British Columbia Privacy Commissioners issued a joint statement today in which they commit to issuing a joint publication aimed at clarifying the role that privacy laws play in managing health and safety risks. Mr. Loukidelis says, “Individual cases can be fuzzy, but if someone uses common sense and in good faith discloses information, my office is not going to come down on them.” The focus of this positive initiative seems broader than campus safety, but the statement does mention Virginia Tech and the recent suicide at Carleton University. For my coverage of this issue, see here.

In a judgement released today, the Ontario Court of Appeal interpreted the section 2(3) application provision of the Municipal Freedom of Information and Protection of Privacy Act and held that the City of Toronto Economic Development Corporation is deemed to be part of the City of Toronto for the purposes of the Act.

TEDCO is an OBCA corporation that is wholly owned by the City.  The City appoints all TEDCO directors, who in turn elect or appoint all TEDCO officers pursuant to a by-law.  The Court held that all of TEDCO’s officers are “appointed or chosen by or under the authority” of the City as contemplated by section 2(3).  It based its decision on the ordinary meaning of the word “authority,” the purpose of access to information legislation and the non-technical character of the language used in section 2(3) - marked by the phrase “appointed or chosen.”

While the judgement is confined in its significance, the Court’s reasoning on non-technical language supporting a non-technical interpretation of other proximate language seems worth a note to self.

City of Toronto Economic Development Corporation v. Information and Privacy Commissioner/Ontario, 2008 ONCA 366.

Here are a couple links for this week.  The second article is a must-read for those who are interested in the privacy issues raised by Web 2.0.

• Floyd Abrams, “Foreign Law and the First Amendment.” An op-ed on how the British law of defamation values free expression less than American law and supportive of current American legislative initiatives to give courts the jurisdiction to grant declarations that certain speech is protected under American law.  Our own law on this question is arguably in flux after the Ontario Court of Appeal’s decision in Cusson v. Quan, on which leave to appeal to the Supreme Court of Canada was granted in early April.  (Wall Street Journal)
• Hal Niedzviecki, “The Spy Who Blogged Me.”  This is an excellent article from this month’s edition of The Walrus.  Mr. Niedzviecki argues that we don’t balk at surveillance because it is now “woven into the fabric of our culture,” a phenomenon he says is partly due to what television has told us about a the benefits of a new type of celebrity that is accessible to the average Joe and Jane.  He speaks with our federal Privacy Commissioner Jennifer Stoddart about self-surveillance and peer surveillance, and through the dialogue you get the impression that Ms. Stoddart’s significant tool - the Personal Information Protection and Electronic Documents Act - misses the most complex and significant privacy challenges that we face today.  As Mr. Niedzviecki says, “The rules don’t apply to the multitudes of cellphone-camera-pointing bloggers, social networkers, YouTube uploaders, and nanny cam enthusiasts - you have to sue.”  (The Walrus)

What a great weekend here.  Even the rain on  Saturday made for a cozy afternoon.  Possibly even better because I decided to purge the backlog of materials in my RSS reader.  Kind of liberating eh?

Enjoy!

The Ottawa Citizen published an article today called “Lessons to learn” on the student-university duty of care as a follow-up to the Nadia Kajouji suicide at Carleton University.  Pauline Tam does a very good job of going deep into some of the complexities, and even received some input from American expert Peter Lake.  I’m also quoted on the duty of care issue and the limits of privacy law.  

As Anne Cavoukian has recently written in response to some commentary on the Carleton suicide, privacy law is not absolute. From how I was quoted it’s not exactly clear what the precise standard for disclosure is and, in fact, there are two standards for “health and safety” disclosures under Ontario law.  Under FIPPA - which governs personal information a university or college manages in its ordinary administration - there is a “compelling circumstances” standard. Under PHIPA - which governs health care relationships, including health care services provided by universities and colleges - the standard is higher, essentially a “serious and imminent” harm standard.  

One of the things that has been lost in some of the recent commentary is that there are two different standards, the latter standard creating a special and important “zone of privacy” within which a health care relationship is situated.  There’s very good reason for this. After all, we want students at risk and others who need care to seek treatment, and a strong guarantee of confidentiality is a necessary, indeed fundamental, part of making treatment accessible.  Outside of health care (think of information known by a residence don, faculty members or members of the administration) the standard for disclosing information to prevent harm should be taken seriously, but is lower and should be lower.  

I’ve spoken and written recently about the need for objective threat assessment procedures to balance the duty to provide a safe campus environment against the duty to protect individual privacy.  For more on my view see this post here and its attachments.

Case analysis takes time, and my aim with this blog is typically to limited to posting case reports as timely and accurate news, and in a way that situates cases in their practical context. I also write predominantly for our base of institutional clients, who tend to want the bottom line and (surprise) represent institutional interests.

I blogged about the basic meaning of the Supreme Court of Canada’s sniffer dog cases last week. While I met my measure of success, two superior comments have been published this week by academics that you should read if you’re interested in going deeper into their subject matter.

James Stribopolous, an Osgoode Hall professor, situates the case in the context of the evolving law on ancillary police powers. Ian Kerr, who holds the Canada Research Chair in Ethics, Law and Technology, focuses on the other key aspect of the judgements - the search aspect. He’s critical of the outcome of the cases for their “reductionist” approach to assigning value to the information captured by a dog sniff - an approach which led the majority to a lesser standard for legality than “reasonable cause” and an approach that Mr. Kerr feels raises the spectre of increased surveillance by law enforcement based on new technologies.

Enjoy!

On April 17th, the Federal Court of Appeal rejected an application for a stay of an order that requires eBay to provide the Minister of National Revenue with the names, basic account information and gross annual sales of eBay’s Canadian resident “PowerSellers” for 2004 and 2005.

The information was ordered to be produced under the authority of section 231.2 of the Income Tax Act, which authorizes third-party production orders that allow the MNR to seek information about persons or ascertainable groups of persons where the order is made to verify compliance with the ITA.  After last November when the Federal Court of Appeal held in Greater Montreal Real Estate Board that this provision did not require the MNR to establish that each and every one of the individuals targeted to be the subject of a “genuine and serious inquiry,” Hughes J. of the Federal Court affirmed the eBay production order.

The Federal Court of Appeal rejected eBay’s motion for a stay of Hughes J.’s order pending its appeal based on an application of the R.J.R.-MacDonald three-part test.  Sharlow J.’s key finding was that eBay did not prove irreparable harm. Although she acknowledged that information cannot be undisclosed, she held that harm to individual eBay account holders rather than eBay itself could not justify a stay.  This somewhat remarkable finding was despite “some material” on the record about eBay’s contractual relationship to account holders.

The record contains some material from which it could be inferred that eBay Canada has contractual obligations to eBay Inc. not to disclose certain confidential information without the consent of eBay Inc. It is not clear that the information sought by the Minister about PowerSellers is confidential information as contemplated in those contracts. Even if the information about PowerSellers is confidential information under those contracts, it is not clear that eBay Canada’s obligation not to disclose confidential information would or could be breached by the disclosure of information pursuant to a court order (even a court order that is under appeal). And, even if such a breach would or could result from such a disclosure, there is no evidence that any harm would come to eBay Canada as a result.

Coincidentally, the application for leave to appeal to the Supreme Court of Canada in Greater Montreal Real Estate Board was just dismissed on April 24th.

eBay Canada Limited v. Canada (National Revenue), 2008 FCA 141 (CanLII).

Spring has sprung in Toronto eh? We always seem to time our holidays so we totally miss the winter-summer and summer-winter transitions. If this sounds intriguing, it only takes two weeks of well-timed vacation to generate this special experience.

Here’s what I’ve been into recently during balmy evenings on the back porch.

• Craig Ball, “Time to Catch the ‘Science of Search’.” Mr. Ball addresses the importance of keyword search, the need for search expertise on a litigation team and argues that lawyers should step up. (Law.com)
• Leonard Deutchman, “Steer Clear of the Perils of Self Collection.” Mr. Deutchman writes to litigators who are advising clients who do not opt to use turn-key, professional data collection services. His article is highly relevant and highly practical. (Law.com)
• David Ardia, “Judge Quashes Subpoena to Blogger Kathleen Seidel, Orders Lawyer to Explain Justification for Subpoena.” Mr. Ardia reports on developments in the Seidel subpoena. (Citizen Media Law Project)
• Yuh-Sung Soh, “RBC Dominion Securities: Show me the Money!” Mr. Soh summarizes a departing employee case heard by the Supreme Court of Canada last Friday and that’s one to watch. (The Court.ca)
• Michael Fitzgibbon, “Blawg Review #157.” I didn’t know about the Blawg Review until reading this labour and employment carnival by long-time “blawger” Micheal Fitzgibbon. People like Michael - who points out that he’s maintained his Thoughts From a Management Lawyer blog for five years - led the way for people like me, so thank you Mike and keep up the good work! (Thoughts From a Management Lawyer)