Month: July 2009

Information Roundup – 13 July 2009

Other than the case law I’ve posted on, here’s what I’ve been reading since the last Roundup on July 5th: 

Every so often I re-jig my approach to digesting information from the web. Since I started on Twitter in January I’ve found it great for picking up on current affairs. I’ve liked the “living index” quality of Twitter so much that I’ve really been far too neglectful of RSS feeds – pretty much mass deleting everything rather than keeping up and digesting.

About a week ago I went back and did some serious weeding of my NewsGator feeds and eliminated any feeds that only broadcast the type of information I’m likely to get through Twitter. At the top of my new “desert island” list is the University of Calgary’s “ABlawg,” which struck a chord with the two posts linked above. I also like Foley Hoag’s Security, Privacy and the Law, Littler’s Workplace Privacy Counsel, Proskauer Rose’s Privacy Law Blog and K&L Gates’ Electronic Discovery Law blog via RSS.

Take care!

Dan

Case Report – Court says administrative tribunal can publish personal information

The Saskatchewan Court of Queen’s Bench issued a decision on March 9th that is significant to administrative tribunals and others with an interest in access to records of judicial and quasi-judicial decisions. The Court held that the Saskatchewan Automobile Injury Appeal Commission violates neither the Saskatchewan Health Information Protection Act, the Saskatchewan Freedom of Information and Protection of Privacy Act nor the Charter by publishing decisions that include the personal information of claimants.

The Commission hears appeals of adjuster decisions under the Saskatchewan Automobile Insurance Act. It is required to hold open hearings (subject to its own discretion to order otherwise), required to provide written reasons and required to keep records it considers necessary for the proper conduct of its business. Given the nature of its appeals, Commission reasons often include a description of evidence related to claimants’ diagnoses, prognoses and treatment programs.

The applicant moved for relief in Court after the Commission denied her request to forgo publication of its reasons for deciding her claim or, alternatively, redact her name, age, occupation and other identifying details from its reasons. She argued that disclosure was prohibited by Saskatchewan HIPA, Saskatchewan FIPPA and the Charter.

The Court found that the Commission’s adjudicative mandate necessarily implies the power to publish its reasons in the internet and then rejected all three of the applicant’s arguments.

Its most significant finding was on Saskatchewan FIPPA, where it held that the disclosure of personal information in reasons was permissible because the Commission’s written reasons are excluded from the Act as “material that is a matter of public record.” It explained:

I accept all of these three definitions of “public record”. The Commission is a public adjudicative body required to make and keep its decisions. Section 92 of the Regulations states that Commission hearings are open to the public unless the Commission orders otherwise. Its decisions are open to the public even without publishing them on the web. Further, s. 95(1) and 95(2)(d) places an obligation on the Commission to compile a record of a hearing that was held, which consists in part of the written decision of the appeal commission. It is common ground that the decision is on file at the Commission and accessible to the public. The decision of the Commission contains information prepared by a government institution which has a duty to inquire into the issues associated with the hearing and record its findings permanently.

Further, it seems illogical that members of the public could sit at the hearing and listen to all of the evidence but not have access to the decision of the Commission. The written decision is the last piece of the hearing process. Public access to decisions made by the Commission is important to assist individuals in presenting their claims and understanding the decision-making process of the Commission and to further the principle of public access to adjudicative bodies.

The Court also held that publication would otherwise be permitted under the provision in Saskatchewan FIPPA that authorizes non-consensual disclosures of personal information, in part because the personal information in reasons for decisions is collected for a purpose consistent to the purpose of publishing such information.

The Court’s treatment of the applicant’s Charter argument is also worth note. The Court dismissed a section 7 “security of the person” claim, stating “Section 7 does not protect an individual who is suffering from the ordinary anxieties that a person of reasonable sensibility would suffer as a result of being involved in an open adjudicative process.” In the alternative, the Court held that the publication of reasons did not violate the principles of fundamental justice in light of the open courts principle, which it stressed applies equally to administrative tribunals.

This decision must be understood in the context of the longstanding dialogue between the Saskatchewan IPC and the Commission about the publication of its decisions, and is remarkable in that it conflicts so strongly with the position taken by the IPC in a 2005 investigation report (here) and a paper it published in early 2009 (here). The IPC (who did not participate in this court case) made a number of recommendations in 2005 that the Commission initially refused to follow, though it eventually came into line by issuing an internet posting policy effective June 1, 2008. The Commission’s new policy contemplates publication of reasons with personal identifiers and identifying information removed, while also granting the public access to physical copies of unredacted reasons.

Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106 (CanLII).

Case Report – Nova Scotia judgment a sign of things to come on litigation and non-party privacy?

On June 30th, the Nova Scotia Supreme Court issued a judgment in which it dismissed a motion for production of documents. Though a routine motion, the Court’s reasoning may demonstrate a more modern approach to production in civil disputes, and one arguably invited by the pending changes to Ontario’s Rules of Civil Procedure.

The plaintiffs brought a motion for production in furtherance of their action against an investment dealer and an individual investment advisor. They sought documents pertaining to complaints brought by other clients against the advisor based on a claim that the dealer failed to supervise the advisor. The Court applied the “semblance of relevance” test called for by Nova Scotia’s now-replaced Civil Procedure Rules and held that the records should not be produced. Though it framed its analysis as being about relevance, the Court clearly weighed the relative value of production against its impact on non-party privacy:

In my view, the documents pertaining to other clients’ trading accounts handled by Mr. Bagnell under Mr. Youden’s supervision fail to meet the test of relevancy. Similar act evidence of this sort has little probative value to an examination of the handling of the plaintiffs’ trading accounts and in my opinion, is not necessary for disposing fairly of the proceeding. The subject allegation of inadequate supervision, whether framed in negligence or as a breach of fiduciary duty or breach of contract, will require the court to determine the appropriate standard of care and/or scope of fiduciary duty owed to the plaintiffs. That is going to be informed largely by evidence of industry standards and practices, the workplace manuals of RBCDS pertaining thereto (which already have been produced), the contract between the parties, and perhaps the introduction of expert opinion evidence. How Mr. Youden supervised the trading accounts of other clients of Mr. Bagnell would have little probative value in this determination, especially where different clients often have different investment objectives and risk tolerances in their trading activities. I am simply not persuaded that the production of these records would likely lead to the discovery of admissible evidence in this action…

The second reason for denying this application is based on confidentiality concerns. If the documents sought were ordered to be produced, there would be some unknown number and identity of other clients whose personal financial affairs would now be disclosed in this litigation, unbeknownst to them. Personal financial information is a very private and sensitive subject to most individuals. While I recognize that the implied undertaking rule would offer some protection, confidentiality concerns nonetheless remain and in the absence of any compelling argument of relevance such that the production of these documents is necessary for disposing fairly of the proceeding, those confidentiality concerns become an added reason for the dismissal of this application.

This is arguably the type of reasoning that will be invited when Ontario’s new Rules of Civil Procedure come into force on January 1, 2010. The landmark changes to the Rules will be brought in by O. Reg 438/08. This amending regulation will establish proportionality as a governing principle for interpreting the Rules, establish bare relevance as the threshold for production and establish a list of factors that a judge or master should consider in making discovery-related orders. The amendments do not expressly contemplate protection of non-party privacy as a relevant factor, and the impetus to the Rule changes (the Osborne Report) is primarily about affordability of civil justice as between parties to litigation. The changes do, however, invite a more nuanced approach to civil production, and the balancing of non-party privacy interests reflected in this Nova Scotia case may become more common.

MacGowan v. RBC Dominion Securities Inc., 2008 NSSC 421.

Case Report – Ontario’s top court affirms order granting compelled observation of surgery

Today, the Ontario Court of Appeal held that investigators appointed under the Ontario Health Professions Procedural Code have the power to compel observation of surgery conducted by an investigated physician and the power to compel an individual physician under investigation to submit to an interview.

Registrars of the self-regulating colleges may appoint investigators to look into whether a member has committed an act of misconduct or is incompetent. They must report the results of an investigation to a committee which, in turn, decides whether to proceed with discipline or incompetence charges in accordance with the procedures outlined in the Code. Investigators enjoy the following grant of power:

An investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.

Last September, the Divisional Court held that the power to “inquire into and examine,” interpreted purposively, allowed for compelled observation of surgeries. It stressed that the College’s evidence showed observation is an effective, customary and even necessary process for assessing a health care practitioner’s competence. It held that the grant of power in the Code was unambiguous, so there was no scope for interpreting it narrowly to conform with Charter values that weigh against self-incrimination and unreasonable search.

The Court of Appeal fully endorsed the Divisional Court’s reasoning and made clear that the power to compel observation of surgery applies notwithstanding recent amendments to the Code. Its reasoning stressed that the plain meaning of the words “inquire into and examine” and the purpose of the self-regulatory enactment outweighed any narrowing inference about legislative intent that might be drawn from the other text in the Code. It rejected the appellants’ argument that the Divisional Court erred in failing to consider the entire legislative context, and said, “…it would take clear words to deprive the investigator of powers necessary to carry out this important public interest [in effectively regulating the medical professions].”

Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546. 

Information Roundup – 5 July 2009

Here are my recent links of note from June 22nd.

If you’re interested in the law relating to corporate e-mail systems, be sure to check out Stengart v. Loving Care Agency Inc., linked through the fifth bullet below. It’s a New Jersey case about whether an employee waived privilege in solicitor-client communications by sending them through a personal internet-based e-mail account on a work computer. The e-mails were recovered by the employer, who claimed it could use them in post-employment litigation with the employee. The Court makes some extremely strong statements against employer control over “personal” communications on work systems – some of the strongest I’ve read.

I find the reasoning in Stengart troubling, but am withholding an opinion pending further thought. What’s immediately remarkable to me, however, is how value-laden these e-mail judgements are. Try reading the Alberta Court of Appeal’s recent Poliquin decision and Stengart back-to-back and you’ll see what I mean. This is not good in my view. As a management side advisor and advocate I’m not inclined to promote the enactment of privacy legislation, but if we are going to have enforceable privacy rights, enacting good and balanced privacy legislation might be a way to make such rights understandable. Without predictability, policy-making will be difficult and litigation of reasonable positions might be prohibited by risks that cannot be controlled. These thoughts to be continued at a later date.

On a personal note, Seanna and I are new parents of Penelope Green Robinson. She was born two days ago and is very healthy. “Green” is from Joni Mitchell’s song “Little Green” – a lovely (though sad) song about a mother’s love for child. Here’s a pic of PG and her brother Bug, who has been very welcoming. As for me, I’m feeling very grateful for my family and for the wonders of life.

See ya!

Dan

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Case Report – USSC strip search case relevant to Canadian educators

The United States Supreme Court issued its decision in the much-discussed case of Safford Unified School District #1 v. Redding on June 25th. The majority held that a strip search of a 13-year-old Savana Redding violated the Fourth Amendment but that the school officials who conducted the search were immune from liability under the American qualified immunity doctrine.

The search occurred after Redding’s friend told her assistant principal that she received a prescription strength ibuprofen pill and several over the counter painkillers from Redding. The assistant principal called Redding to his office, conducted an interrogation and searched her bag. His interrogation was aimed only at confirming his suspicion that Redding had been involved in providing other students with contraband pills. He did not ask questions to determine whether Redding was carrying pills or where she might be carrying pills, but nonetheless directed the school nurse and an administrative assistant to conduct a strip search. The two women asked Redding to pull her bra out and to the side and shake it and to pull out the elastic on her underpants. They did not find any pills.

Justice Souter wrote for the five judge majority. He applied the relaxed standard for school searches set out in the United States Supreme Court’s 1985 decision in New Jersey v. T.L.O and held that the search was justified at its inception:

This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today.

The strip search, however, was not justified. After explaining that strip searches are “categorically distinct” from other less intrusive searches, Souter J. said:

The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The search was disproportionate, according to Souter J., because there was no evidence of a serious danger to students and the assistant principal had no reason to suspect that Redding was carrying pills in her bra or underwear.

Justice Stevens and Justice Ginsburg agreed with the majority’s Fourth Amendment finding but disagreed with its finding on qualified immunity.

Justice Thomas dissented on his own. He argued that the majority decision is inconsistent with the letter and spirit of T.L.O., and in particular its call for deference to the professional judgement of educators. He also said that the contextual secondary threshold applied by the majority will be hard for educators to apply.

In Canada, the leading case on school searches is the 1998 Supreme Court of Canada decision in R. v. M. (M.R.), where the Court endorsed a relaxed standard for school searches based on T.L.O. Justice Cory wrote for the majority and said:

The test established in T.L.O. dispenses not only with the warrant requirement but also with the need for probable cause, imposing instead a generalized standard of reasonableness in all the circumstances. However it must be observed that this test has been subject to criticism in the United States (see, e.g., J. M. Sanchez, “Expelling the Fourth Amendment from American Schools: Students’ Rights Six Years After T.L.O.” (1992), 21 J. L. & Education 381; Thomas C. Fischer, “From Tinker to TLO; Are Civil Rights for Students ‘Flunking’ in School?” (1993), 22 J. L. & Education 409). Nonetheless in my view the test set out in T.L.O. can be applied in the elementary and secondary school setting in Canada. Significantly the same result reached in T.L.O. can be obtained by applying principles to be derived from decisions of this Court which have considered the Charter.

M. (M.R.), affirmed by the Supreme Court of Canada in 2008, dealt with a “pat down” type search of a male student in which a vice-principal found drugs after asking him to turn up a pant leg. The Court found this means of search to be reasonable based on an application of the following principles:

The search conducted by school authorities must be reasonable, authorized by statute, and appropriate in light of the circumstances presented and the nature of the suspected breach of school regulations. The permissible extent of the search will vary with the gravity of the infraction that is suspected…

The circumstances to be considered should also include the age and gender of the student. For example, a search of the person of a female student by a male teacher may well be inappropriate and unreasonable. Every search should be conducted in as sensitive a manner as possible and take into account the age and sex of the student. It should not be forgotten that the manner in which students are treated in these situations will determine their respect for the rights of others in the future.

This is the same as the proportionality requirement established in T.L.O. and applied in Redding, so Canadian educators may heed the caution offered by Redding. Thomas J. is right that the fully-contextual secondary standard governing the extent of school searches is not precise. The majority opinion in Redding makes clear, however, that strip searches will only be justified in special cases.

Safford Unified School District #1 v. Redding, 557 U.S. ____ (2009).