Information Roundup – 29 November 2009
Here are tweets from the last few weeks you may be interested in (in chronological order):
- [Ontario] Hospitals prescribe transparency: http://bit.ly/3xcCgJ [Wow!]
- RT @keithhampson College Accountability, From the Left: http://wp.me/phVbB-nl [Downloaded. Thx.]
- Liked “The Tort of Forced Vaccination” at the Court.ca: http://bit.ly/2Jwai7
- RT @slaw_dot_ca Privacy yes… but now is the time for employers to manage H1N1 http://bit.ly/r17Dq
- Another IPC/Ontario e-mail custody or control case: http://bit.ly/2ql96g
- Good court.ca post on abandonment (of a privacy interest) and R. v. Delaa: http://bit.ly/4fKwty
- RT @CanadianPI Children’s Educational Records and Privacy http://ping.fm/oYEI5 [On my dnld list. Thx!]
- RT @caparsons (via @sectorprivate) Insurance firms tell privacy commissioner to butt out http://bit.ly/P7GkD
- RT @slaw_dot_ca Author Melanie Bueckert discusses employee monitoring law >> Slaw http://bit.ly/3uSVdC
- Attorney-client privilege in work e-mails http://bit.ly/1kTrvG [Nice and clear article]
- RT @pr1vacy H1N1: #media and message – http://bit.ly/9jzBA [Enjoyed this Kevin. Thx!]
- Thorough discussion of public interest immunity and deliberative secrecy in this October judgment by Morrisette J. http://bit.ly/1vCzhv
- The Media Equation – Taking Aim at Student Muckrakers [NYT] – http://bit.ly/30J1WB
- RT @jkehoe3 Mom of slain nurse Lori Dupont says [B]ill [168] falls short: http://tinyurl.com/yewhe3r
- RT @nggauthier On Personal Emails and the Law http://bit.ly/25MCD1 [Undoubted workplace privacy issue du jour]
- RT @rcalo Study: Surveillance can have negative impact on students http://ping.fm/ivCTi (via @CanadianPI) [Looks interesting!]
- RT @slaw_dot_ca Technology and Its Effect on Access to Justice, Advocacy, and the Judiciary – Slaw http://bit.ly/6BQUIJ
- RT @slaw_dot_ca Project management as a key litigator competency – Slaw http://bit.ly/68QuTT
- @pr1vacy Re subway suicides http://tgam.ca/EVO V. Interesting FOI decision here http://bit.ly/8RK1mX
- Alberta dialogue about access to information collected by first responders http://bit.ly/6vNymR (via @CanadianPI)
- FC rejects attempt to block 3P bid on government k from public access: http://bit.ly/4w8S84 No surprise. High water “Coradix” case dist’d.
I need to take this opportunity to give a big shout out to “Buffalo Littlebones,” our cat. Poor little guy seems a little out of sorts because of all the attention we’re giving to our human children. Yes, you whine incessantly until we let you out, then immediately whine incessantly to be let back in. Yes, it is annoying when you prick at our necks at 3 o’clock in the morning. Yes, that was pretty uncomfortable when you refused to get off my lap for 17 hours straight of driving. Despite all this, dear Buffalo, you will always be our first!
See ya!
Dan
Case Report – Court says party ought to have taken counsel’s word about missing computer
On October 22nd, the Ontario Superior Court of Justice dismissed a motion for production of a personal computer and criticized the moving party for proceeding in the face of a sworn statement by the opposing party’s solicitor that indicated the computer was gone.
The computer once contained information relevant to a loss of income claim. The plaintiff discarded it because it had broke down sometime after she printed and produced invoices from her personal business and sometime before a mediation attempt, which occurred slightly less than a year later. In the interim, the defendant made and sustained a request for electronic copies of the invoices.
When the defendant moved for production, plaintiff’s counsel wrote and later swore that the computer had been discarded and consented to allow the defendant to plead spoliation. Defence counsel persisted and generated some damning evidence in cross-examining the plaintiff’s witnesses, including a statement by the IT professional who the plaintiff relied upon, who said that he never actually examined the plaintiff’s computer.
Though the defendant was clearly onto something, Master Brott was not impressed that the defendant persisted despite the plaintiff’s agreement to deal with a spoliation claim and, in particular, plaintiff counsel’s statement that the computer was gone:
The circumstances leading up to this motion are in my view, a clear example of a proceeding going astray – of not being able to see the forest through the trees. Lawyers take oaths which require them to act in a professional manner. Defence counsel urged me to ignore the evidence of solicitor Sacks because of the contradictions obtained from the plaintiff’s boyfriend and the IT specialist. I am not prepared to ignore the solicitor’s Affidavit, nor the correspondence and telephone information from plaintiff’s counsel to defence counsel advising that the computer is no longer available. Whether the computer was in fact given to the IT specialist or is corrupted or is still available cannot be established at this stage. But what is critical is that counsel has sworn that the computer is no longer available. That should be the end of it! The rest is for trial.
…
… once [the Defendants] received plaintiff’s counsel’s correspondence outlining the corruption of the computer and the further information that the whereabouts of the computer were unknown and unrecoverable, the over-zealous actions of the defendants all the while knowing that even if successful, any Order could not be effective, was inappropriate. The rules encourage parties to proceed in a fair and inexpensive fashion and to attempt to resolve their disputes.
Case Report – B.C. Court strikes privacy breach claim brought against raiding union
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.
Case Report – IPC blesses manual processing of FOI request despite push for “e-access”
On October 29th the IPC/Ontario issued an order in what appears to be a well-litigated dispute about the access request process. It rejected a challenge to the reasonableness of a search and the reasonableness of a fee estimate that was based on the respondent municipality’s manual process of providing access.
The responding municipality’s FOI officer directed officials to conduct searches for responsive records and to print and forward responsive records. The officer then manually de-duplicated and reviewed records prior to providing access. The appellant argued that this process was unreliable and inefficient and that the municipality either should have used its IT department or third-party to process the request using automated means. The IPC deemed the municipality’s chosen process to be reasonable, though it disallowed fees related to 2.5 hours of de-duplication and organization because the municipality did not provide sufficient supporting particulars.
The IPC has, in at least one order, endorsed an “e-access” process in upholding a fee estimate for about $12,500. Though such a process is more in tune with prevailing best practices for records search and retrieval, it will also tend to result in higher costs, all of which can be transferred to an Ontario requester if a third-party service provider is used. Given the requester in this more recent case was asked to pay less than $500 to receive the benefit of the municipality’s (certainly laborious) manual efforts, one may wonder if she really wanted what she asked for.
Case Report – Alberta Court of Appeal case discusses qualified privilege and threat reports
Chohan v. Cadsky was decided by the Alberta Court of Appeal on October 16th. The court found that three individuals acted within the scope of a qualified privilege in reporting expressions of concern about a colleague’s mental health and were therefore not liable for defaming the colleague. The Court summarized its finding in the following paragraph:
We dismiss the appeals against Dr. Ohlhauser, Dr. Baker, Dr. Gardener and Capital Health, as we are not persuaded that the trial judge made any reversible error in dismissing those actions. We will address the arguments separately, but commence with the following summary. Dr. Ohlhauser, Dr. Baker, and Dr. Gardener each testified that as a result of expressions of concern from others and/or their personal observations, each had an honest concern about the health of a colleague, and believed that, as a medical professional, he had a duty to either investigate this concern, or inform someone who was in a position to investigate. Each contacted the person he believed appropriate to provide assistance or investigate to ensure that there was no cause for concern. There is no evidence that any one of them contacted individuals who had no interest in knowing and no responsibility to receive the communication because of the position he held in Capital Health. Dr. Block, Dr. Hibbert and Dr. Gardener, the three persons to whom communications were made, each had a responsibility for ensuring that colleagues within their service did not have health issues that might affect patient care or their own well being. These three defendants were not engaged in idle gossip or general discussion in making these communications. In our view, the defence of qualified privilege was designed for exactly such a situation.
The principled aspect of this statement is not surprising, and the application of the qualified privilege defence will always turn on the specific facts. However, given that bona fide reports of potential threats should be encouraged as part of managing workplace (and campus) violence, the case is worth a note.
Workplace Privacy Presentation at the HRPA 20X Annual Conference and Trade Show
On January 27, 2010 I’ll be giving a presentation entitled “Everything You need to Know About Workplace Privacy” at the HRPA’s 20X Annual Conference and Trade Show.
I designed the presentation today around the following topics:
- Employee privacy rights – the patchwork quilt
- How to run an internet background check
- Why and how your acceptable use policy needs to change
- Yes, you can transfer that data to the U.S., but…
- How to manage the risk of communicable diseases in the workplace
I’m looking forward to the opportunity to touch on these hot issues and have also left lots of time for questions. If you’re an HR professional who’s attending the conference please consider joining my session.
Case Report – BCCA says statutory privilege not a barrier to production
On October 9th, the British Columbia Court of Appeal held that the privilege in section 517(5) of the Canada Elections Act is not a bar to production.
The section deems the fact that a person entered into a compliance agreement and any statement in a compliance agreement that admits responsibility for a violation of the Act to be inadmissible as evidence. The Court held that the provision only deems evidence to be inadmissible and does not bar production. It also held that the information, in the circumstances, was not subject to litigation privilege.
Ontario courts have read the statutory privilege governing an Ontario Student Record similarly. See, for example, the McNeil case.
Couple posts on Slaw.ca of interest
I’ve posted two pieces on privacy over at slaw.ca in the last two weeks. The first is a critique of the federal, B.C. and Alberta privacy commissioner’s H1N1 guidance. The second, from today, is an interview I conducted with Melanie Bueckert, author of the recently published book, “The Law of Employee Monitoring in Canada.” Check them out when you can!
Case Report – RCMP allowed to access flight manifest without a warrant
On November 6th, the Nova Scotia Court of Appeal held that the RCMP did not conduct an unreasonable search by reviewing a WestJet passenger manifest without a warrant and without making a formal request.
The context and the background
The issue of law enforcement’s access to personal information held by business organizations has arisen in a number of recent criminal cases, and it is becoming common for courts to judge the reasonableness of a police search in light of standards set by PIPEDA. PIPEDA restricts regulated organizations from disclosing personal information without consent, but includes the following key exemption:
7(3) For the purposes of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge and consent of the individual only if the disclosure is…
(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that
(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,
(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or
(iii) the disclosure is requested for the purpose of administering any law of Canada or a province…
In this case, the RCMP reviewed a passenger manifest from a domestic flight, identified a passenger who had paid by cash shortly before the flight and who only had one piece of luggage and proceeded to search that passenger’s luggage. It found drugs and laid charges.
Trial judge finds Charter breach
In December of last year, Mr. Justice Simon MacDonald of the Nova Scotia Supreme Court held the RCMP breached PIPEDA because it did not make a “request” required by section 7(3)(c.1) given its “cozy” relationship with WestJet:
It might be a fair comment to say the officers had assumed they had permission to look at the manifest from their daily discussions and associations with the staff at Westjet. However, in my mind that is not a satisfactory answer to the problem. There were certain obligations upon the RCMP officers in reviewing the manifest which were legislated under PIPEDA and applied when they went to look at this manifest without a warrant. Mr. Plimmer said Westjet put a protocol on procedures in place for the police to follow in order to see manifests. The police were aware of the procedure they had to follow. I find they didn’t do so in this case, but rather cavalierly walked into Westjet and simply started looking at manifests.
In addition to signaling that the procedural requirements in section 7(3)(c.1) are likely to be read strictly, the trial judgement was notable for its close consideration of WestJet’s privacy policy. The policy said that WestJet might be “required by legal authorities” to disclose personal information without consent, but did not say that WestJet would voluntarily cooperate with law enforcement. MacDonald J. said the policy “seems to emphasize that WestJet would only collect and disclose what is required by law and nothing more.” This weighed in favour of finding the search to be unreasonable and therefore unconstitutional.
MacDonald J. then excluded the evidence based on an application of the Collins test.
Court of Appeal disagrees
The Court of Appeal held that MacDonald J. erred by finding that the RCMP did not have legal authority for the collection of information and by equating a breach of PIPEDA with a breach of the Charter right to be free from unreasonable search and seizure. It then conducted its own contextual expectation of privacy analysis and held that section 8 of the Charter was not engaged in the circumstances. It noted the following in its analysis:
- It could not infer a subjective expectation of privacy given the information used by the RCMP was not particularly private – that is, the defendant purchased a ticket from Vancouver to Halifax at the last minute with cash and checked a single bag all in public view.
- The place searched was a third-party’s office, not a home or not even a business premises.
- Westjet’s privacy policy, with its reference to being “required by authorities” to disclose certain information, was nonetheless a warning to passengers.
- Given the exception to the consent rule in section 7(3)(c.1)(ii), PIPEDA does not support an expectation of privacy.
- The police tactic was limited, in that the RCMP relied on a drug courier profile and sought only information that fit that profile.
- The information collected by the RCMP did not go to the defendant’s “biographical core” of information. The Court said it “amounted to no more than Westjet’s record of Mr. Chehil’s public activities in transacting business with the airline.”
- The fact that the passenger record had a space where more sensitive personal information could be entered (e.g. food preferences) did not support an expectation of privacy. The Court said this fact was too theoretical to count.
Thanks to David Fraser for the tip on this important case.
Case Report – Fed Court comments on jurisdiction to receive ATIA applications
On October 13th, the Federal Court had an opportunity to comment on its jurisdiction to receive applications for review under section 41 of the Access to Information Act. It held that the Court’s jurisdiction is based on a “genuine and continuing claim of refusal of access.” This supported a finding that it had no jurisdiction to (a) hear an application about a series of requests that were deemed to be refused but, through a series of events, answered by the time the application was filed and (b) reprimand the responding institution for delay.
