Court dismisses application for information about business partner’s employees

15 Apr

On April 2nd, the Ontario Superior Court of Justice dismissed an application for the disclosure of detailed employee payroll information from an employer to its partner in a joint venture.

The partner was partially responsible for the employer’s wage bill and relied on its right to inspect records under the joint venture agreement. The employer argued that, despite the agreement, it could not disclose employee personal information without violating PIPEDA. As an alternative, the employer offered to have an audit conducted and share the results. The partner felt this was insufficient.

Justice Perell held that he had no power to make an order that would relieve the parties from the PIPEDA consent requirement, stating “s. 7(3)(c) of PIPEDA does not provide a free-standing jurisdiction to grant exemptions.” He dismissed the application without prejudice to the filing of a new application based on the “activation” of another PIPEDA exemption.

Mountain Province Diamonds Inc v De Beers Canada Inc, 2014 ONSC 2026 (CanLII).

Four points for CASL readiness

1 Apr

Here’s a copy of a 10 minute prepared address I gave to a client seminar today on CASL readiness. Four practical points to guide your readiness initiative.

NSCA addresses relevance, prorportionality and privacy in the ordering of forensic hard drive reviews

4 Feb

On January 28th, the Nova Scotia Court of Appeal affirmed an order that required a plaintiff to produce a hard drive for forensic review because it contained data relevant to his lost income claim (i.e., the amount of time he spent working at a home office each day).

The Court held that the data was relevant and therefore producible subject to rebuttal by the plaintiff. It set out the following list of factors for Nova Scotia judges to consider in deciding whether or not to grant production in similar cases:

1. Connection: What is the nature of the claim and how do the issues and circumstances relate to the information sought to be produced?

2. Proximity: How close is the connection between the sought-after information, and the matters that are in dispute? Demonstrating that there is a close connection would weigh in favour of its compelled disclosure; whereas a distant connection would weigh against its forced production;

3. Discoverability: What are the prospects that the sought-after information will be discoverable in the ordered search? A reasonable prospect or chance that it can be discovered will weigh in favour of its compelled disclosure.

4. Reliability: What are the prospects that if the sought-after information is discovered, the data will be reliable (for example, has not been adulterated by other unidentified non-party users)?

5. Proportionality: Will the anticipated time and expense required to discover the sought-after information be reasonable having regard to the importance of the sought-after information to the issues in dispute?

6. Alternative Measures: Are there other, less intrusive means available to the applicant, to obtain the sought-after information?

7. Privacy: What safeguards have been put in place to ensure that the legitimate privacy interests of anyone affected by the sought-after order will be protected?

8. Balancing: What is the result when one weighs the privacy interests of the individual; the public interest in the search for truth; fairness to the litigants who have engaged the court’s process; and the court’s responsibility to ensure effective management of time and resources?

9. Objectivity: Will the proposed analysis of the information be conducted by an independent and duly qualified third party expert?

10. Limits: What terms and conditions ought to be contained in the production order to achieve the object of the Rules which is to ensure the just, speedy and inexpensive determination of every proceeding?

The Court also suggested that, although “the semblance of relevance” test for production has been abolished under the Nova Scotia Rules, in gleaning what might ultimately be relevant at trial, “it is better to err on the side of requiring disclosure of material that, with the benefit of hindsight, is determined to be irrelevant rather than refusing disclosure of material that subsequently appears to have been relevant.”

Laushway v Messervey, 2014 NSCA 7 (CanLII)

No reasonable expectation of privacy in bad breath

9 Jan

On January 7th, the Ontario Superior Court of Justice overturned a trial decision that had recognized a Charter-protected expectation of privacy in the odour emanating from one’s breath. A doctor who had treated the accused following a motor vehicle accident told a police officer that the accused’s breath smelled of alcohol, following which the police obtained an warrant to seize a blood sample. The Court also noted that the doctor was not acting as a state agent in making his observation and reporting to the police.

R v Maureen Daly, 2014 ONSC 115 (CanLII).

OPC issues important decision for federally-regulated employers on access to “mixed personal information”

1 Jan

Federally-regulated employers should pay heed to OPC report of findings 2013-004, issued in July 2013. It contains the most detailed guidance on how to administer requests for access to personal information about employees that is received from other employees in confidence – information sometimes called “mixed personal information.”

The OPC adopts the case-by-case balancing of interests approach endorsed by the Federal Court of Appeal in a Privacy Act case called Pirrie: “In determining the right to have access to this information under PIPEDA, the interests of the individuals concerned should be balanced against each other along with the public interest for and against disclosure.”

This test does not support a “bright line,” so the OPC guidance is welcome. It uses 2013-004 to distinguish between two scenarios:

  • The OPC held that notes containing peer feedback that an employer received in conducting a routine performance feedback process were exempt from the right of access. It helped that the employer had provided the complainant with a high-level summary of feedback and helped that the complainant himself had expressly promised to his peers that their feedback would be given anonymously.
  • The OPC distinguished its prior treatment of information gathered in an internal investigation from witnesses when the investigation led to the complainant’s dismissal from employment. The OPC affirmed the complainant’s right of access in this scenario, but specified that the complainant required access to her personal information “as part of her efforts to be re-instated in her position,” which suggests that the complainant had either commenced litigation or that litigation was reasonably contemplated. The OPC also noted, “there were no formal assurance made that the information the investigation participants provided would be kept confidential.”

This gives federally-regulated employers some indication of the OPC’s perspective on a common and significant access issue, though the analysis invited by the Pirrie test is very contextual and outcomes will differ based on a wide range of potentially relevant facts. While the OPC’s decision on access to information gathered from witnesses in an internal investigation might be of some concern to employers, employers cannot provide witnesses with an absolute promise of confidentiality given witness statements may be producible in litigation. If the OPC decision merely suggests that witness statements are likely to be accessible under PIPEDA when litigation is reasonably contemplated it will be rather harmless in its impact.

Bank provides former employee with insufficient access to his personal information, 2013 CanLII 71855 (PCC).

Happy New Year from AAI!

1 Jan

Happy New Year! 

2013 was a good and busy year for your AAI primary contributor. I’ve paddled a traditional paddleboard for about twelve years now but committed to a dedicated year of competition in 2013, knocking off my first Molokai 2 Oahu crossing with a surprisingly good result and a win (!) against a small but core group of prone paddlers at the Chattajack 31 in Tennessee. I’m over 40 but feel like a kid again and am going to channel my current paddling obsession into another year of competition. If all goes well, I’ll repeat the Molokai 2 Oahu crossing and add a first time result in the famed and highly-competitive Catalina Classic. If you’re in Toronto and prone paddling looks interesting get in touch in the Spring. I’d be glad to loan a board and go for a paddle.

This is all to say that AAI suffered slightly from paddling-, family- and practice-induced anemia in 2013. We posted about 75 entries. They were on the most relevant of content, selected more conservatively than in years past, but this was lower output for a blog that’s now has 825 entries since its birth in the summer of 2007. We’ll aim for more of the same in 2014, thank you for reading and hope you enjoy. We hope you had a nice holiday and are feeling invigorated and ready for a good 2014!

Dan

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BC arbitrators embrace openness in face of broad request for grievor annonymity

31 Dec

Two British Columbia arbitrators have held that, despite British Columbia PIPA, shielding a grievor’s identity from the public is an exception to the general rule of openness.

Both cases involved discharge grievances brought by the United Food and Commercial Workers, Local 1518. The Local argued that grievor identities should not be revealed in an arbitration award without individual consent. It based its argument on the consent requirement in British Columbia PIPA and, alternatively, by arguing that anonymity should be the default in a proper exercise of arbitral discretion.

Arbitrator Sanderson issued a brief award on July 22nd. He concluded that the shielding of a greivor’s identity is a matter within an arbitrator’s discretion notwithstanding British Columbia PIPA. Arbitrator Sanderson also held that “the open court principle should prevail in decisions of labour arbitrators” though an anonymity order may be granted as justified based on proof of an “unreasonable impact” on personal privacy.

Arbitrator Lanyon issued an award on October 28th. Like Arbitrator Sanderson, Arbitrator Lanyon held that identification of a grievor is the norm, with a discretion to grant anonymity as otherwise as justified. Arbitrator Lanyon also added:

  • that there is a particular pubic interest in disclosing the identity of those charged with serious disciplinary offences;
  • that an aribtrator’s balancing should be principled, recognizing “the importance of privacy and the difficulties that may arise as a result of publication on the awards on the internet”; and
  • that arbitrators should be open to “lesser protections” in addressing the potential harms associated with publication, at the very least by refraining from publishing sensitive identifying information such as birth dates and social insurance numbers.

Neither arbitrator’s means of resolving the consent requirement in British Columbia PIPA is particularly clear, though both view the issue as governed by arbitral discretion. In applying this discretion, both arbitrators dismissed the Local’s request because it was made as a matter of right and not on any fact-based justification. The Lanyon award indicates that the Local had plans to appeal any award “not in accord with its views of this matter.”

Husband Food Ventures Ltd v United Food and Commercial Workers International Union, Local 1518 (unreported, 22 July 2013, Sanderson).

Sunrise Poultry Processors Ltd v United Food & Commercial Workers, Local 1518, 2013 CanLII 70673 (BC LA, Lanyon).

[Note also that most recent Advocate's Quarterly (vol 42, 2013) has an article entitled The Protection of Privacy Interests in Administrative Adjudication in Ontario by Chris Berzins, who has written often on this topic. Chris's most recent article calls on the Ontario/IPC to give better guidance to Ontario administrative bodies on how to to address the privacy issues related to the publication of decisions as well as other privacy issues related to their adjudicative proceedings.]

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