Arbitrator issues helpful video surveillance award

20 Jul

Arbitrator Paula Knopf’s May 19th video surveillance decision is helpful to management on two points. 

First, she validates the management need to investigate wrongdoing rather than immediately confront a suspected wrongdoer: “if the suspected employees had been confronted with the Employer’s suspicions in late April or May as the Union suggested, while that might have had an immediate, albeit temporary, deterrent effect, that would have prevented any real hope of discovering the true extent of the problem.”

Second, Arbitrator Knopf analyzed whether inadmissibility was an appropriate remedy for the employer’s breach (rather than ruling the evidence to be inadmissible as an automatic consequence of the breach).

Ottawa-carleton District School Board v Ontario Secondary School Teachers’ Federation, District 25, 2015 CanLII 27389 (ON LA).

Arbitrator demands more of employer in excluding e-mails from work system

18 Jul

On May 16th, Arbitrator Allen Ponak ruled that e-mails an employer collected from its IT system were inadmissible in a discharge case because the employer collected the e-mails in breach of the grievor’s privacy.

The employer (a public sector union) discharged the grievor for being a known associate of a motorcycle club and denying the association when confronted. The employer proceeded with the discharge after finding incuplatory e-mails between the grievor and his wife. It retrieved these e-mails after receiving an e-mail from the Ministry of Justice indicating that it had received a “letter of concern” about the grievor from a local police force. It did so without following up with the Ministry of Justice.

Arbitrator  Ponak dismissed the employer’s “no expectation of privacy” argument based on the Supreme Court of Canada reasoning in R v Cole. He held that the intrusion associated with the employer’s search was “heightened” given it was examining e-mails between the grievor and his wife and said:

I am satisfied while the need for an investigation of the Grievor was justified, the search of emails to and from his spouse was not reasonable at the time it was carried out. Relying only on second or third hand information about the Grievor, the Employer’s first and immediate response was to scrutinize his personal emails. There was no evidence that alternatives to this invasive search were considered, possibly because the Employer believed that it owned the email system and no barrier existed to such scrutiny. It was also relatively simple to carry out.

I accept the Doman principle that it is unreasonable to conduct a highly intrusive search before other less intrusive alternatives are considered. For example, the Employer did not contact the Grievor for an explanation after receiving new information on January 15 about his exclusion from corrections facilities and about a police investigation that seemingly implicated the Grievor. The Employer did not seek more details from the Ministry of Justice or the police regarding the allegations. Other LRO’s who might have relevant information were not canvassed. Any concerns about possible permanent deletion of emails and files (I hasten to add there was no evidence to suggest such a concern) could have been handled by putting a temporary freeze on the Grievor’s account. If these and other investigation avenues had proved unsatisfactory, then perhaps the legitimate interests of the Employer in obtaining more information would have trumped the Grievor’s right to privacy, justifying, with safeguards, a search of personal emails. Instead, the Employer went immediately to the Grievor’s email, discovered multiple and obviously personal emails with photo attachments from the Grievor’s wife in a file of deleted emails, and examined the photos. It is difficult to imagine a more intrusive invasion of personal privacy.

This is the first case I’m aware of in which a labour arbitrator has excluded evidence because an employer breached an employee’s privacy in searching its own IT system. It is, however, more illustrative than it is significant because of the facts outlined in the two paragraphs above. After R v Cole employers simply cannot continue to act as if employees have no expectation of privacy in information stored on a work system. Rather, they must conduct investigations in a manner that demonstrates respect for the an existent, albeit limited, employee privacy interest.

Saskatchewan Government and General Employees Union v Unifor Local 481, 2015 CanLII 28482 (SK LA).

With CASL, a little due diligence goes a long way

3 Jul

Everyone’s talking about Porter Airlines’ recent agreement to pay a $150,000 penalty for various CASL violations. Porter is a sophisticated marketer yet slipped up, so other organizations are now wondering what whether they are similarly exposed. (Perhaps this was the CRTC’s enforcement aim.)

CASL is a regulatory instrument that includes a due diligence defence. In other words, organizations can violate the act without liability if they have taken all reasonable steps to avoid the violation.

Due diligence is about using good, systematic processes to avoid bad things. Here’s a simple process for due diligence that me and my colleagues have employed and continue to employ with our clients:

  • Define your operational units and prioritize them in accordance with risk
  • If you can’t do them all, select key units for review
  • Identify a key individual for each unit, someone with the best knowledge of messaging practices
  • Ask the key individual to complete (in writing) a list-centric survey – a survey that aims to gather some basic information about all formal and informal address lists (It’s easier to identify lists than activities.)
  • Review the survey response and applicable website or sites and follow-up in writing with questions that help close major gaps
  • Have a telephone call to confirm understanding and discuss potential compliance issues
  • Draft a compliance memo – a point-form document that identifies the steps taken in the compliance review, the activities of concern and the compliance advice
  • Conduct any follow-up information gathering in response to the memo
  • Send the memo the the key individual for feedback on completeness
  • Finalize the memo

This is a not a difficult or costly process for review and remediation, though you should also budget for (a) some project management costs for a multi-unit review and (b) some multi-unit training, which is normally an appropriate follow-up to the review and remediation process.

If the Porter agreement is causing you worries, following a process like this is well worth it.

 

BCCA affirms order requiring Google to render domains unsearchable

14 Jun

Last Thursday, the Court of Appeal for British Columbia issued an important decision about the power of a domestic court to make orders against non-party, internet “intermediaries” – in this case, search engine provider Google.

The matter involved an order made to help a network hardware manufacturer enforce its intellectual property rights against a former distributor who had gone rogue. After the plaintiff sued the former distributor, it went underground – essentially running a “clandestine” effort to pass off its own products as the plaintiff’s products. This scheme relied on the internet and, to a degree, Google’s market-dominant search engine.

Google voluntarily took steps so searches conducted at the Google.ca search page would not return specific web pages published by the defendants. The plaintiffs sought and obtained an order to block entire domains and to block searches originating from all jurisdictions. Google appealed, making a number of broad arguments about the impact of the order (and its kind) on comity principle of private international law as well as international (internet-based) freedom of expression.

The Court of Appeal dismissed Google’s appeal, demonstrating significant sympathy for the perils facing the British Columbia plaintiff. And while the Court was sensitive to the principles raised by Google (along with the Canadian Civil Liberties Association and the Electronic Frontier Foundation as interveners), it held that the principles were not engaged in the matter:

… Courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made.

In the case before us, there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.

This reasoning by the Court of Appeal relates back to a significant admission by Google – an admission recorded by the chambers judge as follows: “Google acknowledges that most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong.”

The Court of Appeal decision is therefore relatively balanced. In general, it will help those seeking civil remedies deal with global internet intermediaries such as Google. However, global search engine “takedown orders” of the kind issued in this case will not necessarily be easy to obtain and enforce.

Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265 (CanLII).

Ontario decision suggests corporation can sue for breach of privacy

23 May

On February 19th, the Ontario Superior Court of Justice declined to strike a pleading that alleged a company unlawfully interfered with a competitor’s economic relations by receiving confidential information about a client (BC Cancer) that was sought after by both organizations. The Court held that the pleading was sustainable because BC Cancer had an arguable claim against the recipient organization based on the “intrusion upon seclusion” tort, suggesting that the tort is available to natural persons and corporations. As stressed by the Court, on a motion to strike a court errs on the side of permitting a novel but arguable claim to proceed to trial.

Fundraising Initiatives v Globalfaces Direct, 2015 ONSC 1334 (CanLII).

Reasonable necessity not enough to justify collection under Ontario’s public sector statutes

8 May

Section 38(2) is an important provision of Ontario’s provincial public sector privacy statue. It requires institutions to satisfy a necessity standard in collecting personal information. Ontario’s municipal public sector privacy statute contains the same provision.

On May 4th, the Divisional Court dismissed an Liquor Control Board of Ontario argument that the Information and Privacy Commissioner/Ontario had erred by applying a higher standard than “reasonable necessity” in resolving a section 38(2) issue. The Divisional Court held that the Court of Appeal for Ontario’s Cash Converters case establishes just such a standard:

The LCBO relies upon Cash Converters to support its submission that the IPC erred in not interpreting “necessary” as meaning “reasonably necessary.” However, Cash Converters does not interpret “necessary” in this way. In fact, it suggests the opposite. Arguably, something that is “helpful” to an activity could be “reasonably necessary” to that activity. Yet, the Court of Appeal makes it clear that “helpful” is not sufficient.

It’s hard to fathom a legislative intent to prohibit a practice that is, by definition “reasonable.” If the LCBO seeks and is granted leave to appeal this could lead to an important clarification from the Court of Appeal on a strict interpretation of section 38(2) that has stood for some time. The LCBO practice at issue – which involves collecting the non-sensitive information of wine club members to control against the illegal stockpiling and reselling of alcohol – is a good one for testing the line.

Liquor Control Board of Ontario v Vin De Garde Wine Club, 2025 ONSC 2537.

Ontario arbitration award addresses remedy for privacy violation

21 Apr

On February 24th the Grievance Settlement Board (Ontario) held that an employer should provide a grievor with three days’ paid vacation as a remedy for the consequences of an (admitted) security breach. The breach apparently allowed other employees to read incident reports involving the grievor, who alleged this caused him psychological distress. The GSB made its finding after conducting an informal med-arb process.

Ontario Public Service Employees Union (Grievor) v Ontario (Liquor Control Board of Ontario), 2015 CanLII 14198 (ON GSB).

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