On May 7th, the British Columbia Court of Appeal ordered a matter back to the Information and Privacy Commissioner of British Columbia to address whether the Ministry of Children and Family Development breached the accuracy provision of the British Columbia FIPPA by advising one of its funded agencies to supervise a newly-hired employee pending its review of his file.

The Court of Appeal considered a single substantive issue. It held that the OPIC does not have jurisdiction to consider whether a designate of the Minister is authorized to disclose information by section 79(a) of the British Columbia Child, Family and Community Services Act, which authorizes non-consensual disclosures that are “necessary to ensure the safety or well-being of a child.”

The Court of Appeal did, however, remit a different substantive matter back to the OIPC that was apparently raised by the chambers judge on his own motion. The chambers judge had held that the Ministry breached FIPPA’s accuracy provision by basing its supervision recommendation, at least in part, on the existence of an “assessment only” file on the Ministry’s records. The Ministry opened this file as a result of a child services complaint against the employee that the Ministry had determined was beyond its jurisdiction. The chambers judge held that the Ministry breached its duty to “make every reasonable effort to ensure that personal information is accurate and complete” by relying on the “unreliable” file. The Court of Appeal held the chambers judge erred given the OPIC had not made a decision on the accuracy issue, but did remit it back to the OPIC.

Harrison v. British Columbia (Information and Privacy Commissioner), 2009 BCCA 203.

We’ve published or Privacy Post caselaw digest, covering relevant developments in Canadian information management and privacy law. The link is here. And the following is our lead-in.

So what’s new?

Much has been said about Leduc v. Roman, the case in which Mr. Justice Brown of the Ontario Superior Court of Justice granted leave to cross-examine a plaintiff in a motor vehicle accident suit about the nature of content he posted on his Facebook profile. This is the second Ontario case in which a judge has shown little appreciation for an argument that information .posted in a “friends only” section of a social networking profile page should be treated as private in considering the appropriateness of production. Leduc is significant, but there are a number of other decisions we’ve reported that also demonstrate an intensifying new dialogue on the law of production and personal privacy. If you’re interested in this subject, Warman v. Wilkins-Fournier (on anonymous internet use) and British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd. (on non-party participation rights) are worth a read.

We’ve also covered the numerous recent “lawful access” cases – cases in which criminal defendants have argued that their Charter right to be free from unreasonable search and seizure has been violated because police have requested and obtained information from organizations to further an investigation, without seeking a warrant. For what these cases mean to employers, please see our recent client bulletin, Pretty Please: Police requests for employee personnel files.

Please check it out and enjoy!

On April 20th, the Alberta Court of Queen’s bench quashed several Alberta OIPC orders made against a doctor and a medical spa in relation to the maintenance and use of a database of contact information used to market medical and medspa services and fundraise for a related charitable foundation.

The complainants were patients of the doctor who claimed to have received mailings without having provided consent. Both asked not to be identified in the course of the OPIC’s inquiry because they feared reprisal from the doctor and had an ongoing need for his services.

The Court held that the OIPC erred in agreeing with the complainants’ request for anonymity and withholding their identities. It held that the OIPC must meet a “fairly stringent” standard of fairness and did not meet this standard in the circumstances. It discounted the complainants’ concern about access to medical services given they lived in a major centre and held the prejudice to the respondents from non-identification was significant. The Court said:

Had the applicants been provided with the identity of the complainants, they could have checked their records to confirm whether consent had been provided or refused, or may have had an explanation as to why the complainants continued to receive solicitations despite their wishes to the contrary if that in fact was the case. Here the applicants were forced to accept the evidence of the complainants that they had not provided consent, without being given the opportunity to rebut the evidence. In my view this was unfair and wholly inappropriate given the reliance of the Privacy Commissioner on the complainants’ evidence of no consent and the applicants’ evidence that documentation was available which could potentially support their position that consent was obtained. Relevant documentation would likely have constituted the best evidence as to whether or not consent was given to the use that was made of the information.

Even more significantly, the Court held the OPIC erred in finding that the Alberta Health Information Act prohibits the collection and use of individually identifying health information for marketing and fundraising purposes with or without consent. In doing so, the Court recognized that the general purpose of privacy legislation is to give people control the use of their personal information. It held the OIPC’s interpretation was inconsistent with this purpose, inconsistent with evidence of legislative intent and inconsistent the text of the statute.

Lycka v. Alberta (Information and Privacy Commissioner), 2009 ABQB 245.