“Drug abuse” diagnoses justifies random testing requirement

19 May

Last November 29th, Arbitrator Hall held that an employer could impose random drug testing on a employee in a safety-sensitive position who admitted to regular cannabis use outside of the workplace and who had been diagnosed as a “drug abuser” but not “drug dependent.” He explained:

…a closer review of the authorities reveals that arbitrators have distinguished between “use”, “abuse”, and “dependence/addiction”. Once the distinction between use and abuse in particular is recognized, the Union’s comparison to the casual consumption of alcohol away from the workplace is no longer compelling. The distinction was made in Hamilton Street Railway in these terms: “Use does not equate to abuse and it does not follow that because the grievor may use infrequently he will one day arrive at work impaired” (para. 33; emphasis added).

Although he upheld the random testing requirement, Arbitrator Hall ordered the employer to reduce testing frequency to quarterly from monthly and to limit testing to cannabis.

Spectra Energy Transmission – West and Communications, Energy and Paperworkers Union of Canada, Local 686b (29 November 2012, Hall).

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Role of investigators does not support solicitor-privilege claim

18 May

On May 15th, Justice Ramsay of the Ontario Superior Court of Justice denied a claim that an investigation report was subject to solicitor-client privilege. He explained the difference between the kind of third party conduit whose role is essential to the solicitor-client relationship and an ordinary fact finder:

If the third party’s retainer extends to a function which is essential to the existence or operation of the client-solicitor relationship, then the privilege should cover any communications which are in furtherance of that function and which meet the criteria for client-solicitor privilege. Examples given in Chrusz are psychiatrists who examine the client and accountants who examine the client’s books (¶116).

On the other hand (¶22), “[i]f the third party is authorized only to gather information from outside sources and pass it on to the solicitor so that the solicitor might advise the client, or if the third party is retained to act on legal instructions from the solicitor (presumably given after the client has instructed the solicitor), the third party’s function is not essential to the maintenance or operation of the client-solicitor relationship and should not be protected.”

Both of the paragraph references above are to the Ontario Court of Appeal decision in Chrusz.

Weinmann Electric Ltd v. Niagara Falls Bridge Commission, 2013 ONSC 2805 (CanLII).

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Government’s collection of census information does not breach Charter

10 May

On May 2nd, the Court of Appeal for Saskatchewan held that the federal government does not breach section 8 of the Charter by collecting census information under threat of prosecution.

The Court held that the collection does not interfere with a reasonable expectation of privacy given the context in which the (admittedly sensitive) information is collected – a context that includes statutory assurances of limited use and confidentiality. It explained:

Thus , the question is not whether Ms. Finley had an expectation of privacy or even a reasonable expectation of privacy in dictionary terms. The question must be linked to the overall context of the case. In this case, the question must be cast in these terms: whether a reasonable person would expect to have privacy in the information requested by the 2006 Long Form Census, which the government wishes to collect exclusively for statistical purposes to aid it in implementing sound and effective public policy, with no criminal or quasi – criminal repercussions flowing from the disclosure of such information, and with the specific information collected being ultimately generalized and “delinked” from the individuals being required to so disclose. The trial judge answered this critical question negatively and the summary conviction appeal court judge found no error of law, mixed fact and law or fact in her conclusion.

The Court did not address an argument by the Crown that section 8 is not engaged by merely asking someone to provide information, an argument rejected in each of the two lower court decisions that led to the appeal.

R v Finlay, 2013 SKCA 47.

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Information Roundup – Volume 2013, Edition #4

26 Apr

Here is list of good links recent information and privacy developments:

I’ve been posting less than I’d like to lately have a BIG pile of cases to catch up on. My apologies. I’ve been training very hard and getting ready for an event that I’ve always dreamed of doing and have finally committed to.The “M2O” is a 32 mile paddle race from Molokai to Oahu across the Ka’iwi Channel – the “channel of bones.” I’ll do it solo on a prone paddle board (paddling with my hands). The distance is not so bad, but the channel conditions are going to make the race very hard. My only goals is to finish with my dignity.

I’ve spent the last four months building some base and learning from paddlers in the community. At this point I’m extremely excited and feeling fit and positive, but the hard work is just starting. Forgive me for posting a bit about my progress here. I love the writing about the developing law, but the developing law is going to be competing for my attention for the next while!

Aloha,

Dan

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Ontario master questions state of jurisprudence on OSR privilege

26 Apr

On January 22nd, Master Muir of the Ontario Superior Court of Justice held that answers to discovery questions that would disclose information contained in the Ontario Student Records of non-party students should not be answered based on the statutory privilege in section 266 of the Education Act.

Master Muir held that he was bound by Pandremenos v Riverdale Collegiate Institute, [1998] OJ No 1480 (GD), but not without expressly stating his disagreement with an interpretation of section 266 that precludes access to information contained in an OSR (as opposed to an OSR itself). He said:

In my view, the relevant portions of the Act make it clear that it is the OSR file itself that is privileged and not necessarily all of the information that may find its way into the OSR. Section 266(2) of the Act creates the privilege. It provides that “a record [that is, the OSR] is privileged” [emphasis added]. It says nothing about the specific information that section 265(1)(d) of the Act requires the principal to collect for inclusion in the OSR. This is to be contrasted with sections 266(9) and 266(10) of the Act. Section 266(9) states that “no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record” [emphasis added]. Section 266(10) provides that “every person shall preserve secrecy in respect of the content of a record” [emphasis added]. It is noteworthy that the word “content” is absent from section 266(2).

In my view, if the legislature had intended to extend the privilege to any piece of information that may end up in an OSR (such as something as basic as a student’s address or date of birth, for example) it would have used much broader language that would clearly extend the privilege to the contents and to all information that may be found in an OSR. In my view, the interpretation suggested by Northmount could lead to an absurd situation where certain basic information about an individual could never be disclosed or introduced into evidence in a civil proceeding simply because he or she happens to be a student to whom the Act applies and the information in question can also be found in his or her OSR.

Master Muir noted other decisions by the Court in which discovery was allowed because the information at issue was not required to be contained in the OSR by the Ministry’s guideline. Master Muir said these decisions are distinguishable from cases in which the information at issue is required to be contained in the OSR as in Pandremenos and the matter before him.

Robinson v Northmount School for Boys, 2013 ONSC 1028 (CanLII).

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Access to e-mails, text messages and other ESI

17 Apr

I did double-duty today, also presenting on issues relating to control of corporate information in light of business computing trends like BYOD and cloud computing at day one of Osgoode PDP’s e-discovery certificate program. My slides are below.

Justice David Brown and Master Calum McLeod have written a number of the judgements I’ve blogged about here. I was able to stay for their lunch presentations on addressing the e-discovery burden. Justice Brown warned of a coming apocalypse (death by seppuku, to be precise) unless something gives way to break the e-discovery burden, starting with adversarial behavior in the discovery process. Master McLeod delivered similar message, though more from his in the trenches perspective – noting the wisdom of including ADR mechanisms into discovery plans and bifurcated discovery. Take note.

Cole and Tsige: Clarifying the implications in the workplace

17 Apr

This is the title of an OBA panel discussion I participated in today with Christopher Du Vernet, counsel to Sandra Jones in the 2012 case that created our intrusion upon seclusion tort. These are my speaking notes.

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