Archive | February, 2010

Case Report – Arbitrator affirms background check program based on soft C-TPAT requirement

28 Feb

On January 20th, Arbitrator Watters held that a criminal background check program initiated in response to the United States Customs-Trade Partnership Against Terrorism program was reasonable.

The key features of the company’s background check program: (1) it applied to new employees and current employees transferring into positions deemed to be sensitive based on C-TPAT requirements; (2) it excluded employees who were checked by the company pre-hire and employees employed by the company for more than five years; (3) the company assessed the results of checks on a case-by-case basis; and (4) the company undertook not to rely on information received about provincial offences convictions and pardoned criminal offences in excluding an employee from an opportunity to work in a sensitive position.

The company wanted to ensure that its “Tier 3″ C-TPAT status would not be jeopardized because this status is associated with fast track movement of goods into the United States. Yet the grievance posed a challenge for the company because the C-TPAT criminal background check requirement is flexible, in that it is subject to restrictions in local laws. Moreover, U.S. Customs and Border Services provided a very qualified opinion to the company that only suggested that failing to conduct conduct background checks “might affect” its top tier status. The company was also not certain how being degraded to Tier 2 status would affect its ability to move goods in to the United States. It could only argue that it did not want to find out.

Despite these challenges, Arbitrator Watters held that the company’s background check program was reasonable. He said:

Once the Employer elected to enter the program, I think it reasonable for the company to want to achieve, and then maintain. Tier 3 status through the adoption of the best practices identified by C-TPAT. While it is difficult to precisely gauge own CBP would respond to a change to Tier 2 status. I am inclined to accept the Employer’s view that a reduction in Tier status, as a consequence of a decision not to require criminal background checks for employees in sensitives roles, would likely result in increased screening of the company’s product and resulting delay in the shipment process. I was given no reason to reject Mr. Dunn’s evidence that delay at the ports of entry into the United States could result in the loss of market share as consumers move to the available product of some other competitor. I further not his testimony that delay could compromise product quality in respect of certain brands with a finite shelf-life.

Arbitrator Watters appears to have been influenced by the company’s willingness to take steps to ameliorate the impact of its program. At the hearing, the company expressed willingness to take additional ameliorative steps that were not embodied in its existing policy. Arbitrator Watters ordered the company to implement these steps.

Unfortunately, the parties appear to have argued the case as if Ontario provincial public sector privacy legislation applied to the company. Though a common misunderstanding, provincially regulated employees in Ontario (whether public or private sector) are not protected by  privacy legislation.

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 2098 v. Diageo Canada Inc. (Amherstburg Plant), [2010] O.L.A.A. No. 21 (Wattters) (QL).

Information Roundup – 21 February 2010

21 Feb

Here are some recent tweets of note!

This is a tough time of year eh? All work and no play makes Dan a dull boy… and I really like my work! I wrote this over at Slaw to make myself feel better. If you read it I hope it does the same for you!

Dan

P.S. Go Canada!

Case Report – Newfoundland court says Privacy Commissioner can’t access documents subject to solicitor-client privilege

20 Feb

On February 16th, the Newfoundland Supreme Court – Trial Division, held that the Newfoundland Information and Privacy Commissioner cannot require a public body to produce records claimed to be exempt from public access as subject to solicitor-client privilege.

The Newfoundland Access to Information and Protection of Privacy Act gives requester a right to seek review of an access decision either through the Commissioner or the Trial Division. In the event of a review, the Commissioner may require production of records, and a public body has a corresponding duty under section 52(3) to provide responsive records “notwithstanding another Act or a privilege under the law of evidence.” The Commissioner argued that section 52(3) allows it to compel the production of records claimed to be exempt from public access as subject to solicitor-client privilege. It made a purposive argument and also adduced text from a legislative committee report that suggested the Commissioner be granted a power of review that would operate “notwithstanding any law or privilege.”

The Court relied on the long line of jurisprudence that establishes solicitor-client privilege can only be abrogated by clear and unequivocal language, including the Supreme Court of Canada’s recent Blood Tribe decision. It held that reference to “a privilege under the law of evidence” is not clear indication that the legislature intended solicitor-client privilege to be infringed because solicitor-client privilege is an rule of evidence and a substantive legal right. It explained:

By the time the ATIPPA came into force, solicitor-client privilege had been broadened beyond a mere rule of evidence for more than twenty years. Section 52(3) refers only to “privilege under the law of evidence”. Again, this language is simply not expansive enough to capture the breadth of solicitor-client privilege as a substantive rule which the Supreme Court of Canada describes as a “fundamental civil and legal right”. The interpretation proposed by the Commissioner cannot be achieved by the words in section 52(3). To suggest otherwise would necessitate ignoring the evolution of the privilege as described by the Supreme Court of Canada.

The Court also held that the Commissioner’s power to review access decisions does not include a power to adjudicate solicitor-client privilege claims because such claims involve substantive rights that exist independently of the Act.

Hat tip to David Fraser.

Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2010 NLTD 31 (CanLII).

Case Report – FCA quashes order for failure to consider privacy interest of non-party

13 Feb

On February 8th, the Federal Court of Appeal quashed an order by the Public Service Staff Relations Board because it accepted a consent order between a union and several employers that required the employers to disclose employee home addresses and telephone numbers to the union.

The Board held that the employers breached the Public Service Labour Relations Act by failing to provide the union with “some” contact information to facilitate its representational role. It reserved judgment on remedy, raised the issue of employee privacy to the parties and encouraged them to seek agreement on a remedy. The parties later came back before the Board and it endorsed their agreement in a consent order without reasons. The applicant, a one-time advocate against the kind of disclosure agreed to, was not given notice of the hearing. When she learned of the order, she commenced an application for judicial review.

The Court held that the Board erred in law by simply endorsing the consent order and failing to exercise its jurisdiction. The Court explained that this rarely-challenged practice can be fatal when there are non-parties whose privacy interests are affected by an agreement:

The Board was seized of the questions which it had raised because those questions went beyond the interests of the employers and the union and engaged the interests of persons who were not before it. Those persons had statutorily protected privacy rights of which the Board was well aware. The Board had an obligation to consider those rights and to justify interfering with those rights to the extent that it did. It could not abdicate that responsibility by simply incorporating the parties’ agreement into an order.

The Court ordered the matter to be remitted to the Board, ordered it to give notice to the Office of the Privacy Commissioner and suggested that the applicant also be given notice and standing.

For a very different take on non-party privacy and standing, see this decision of the British Columbia Court of Appeal.

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII).

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII)

“Privacy Issues in Civil Litgation” and “Email as Evidence” presentations

10 Feb

Just noting two presentations from yesterday, one on Privacy Issues in Civil Litigation with Alex Cameron and another on Email as Evidence with John Gregory. Though I’m getting a little worn down by the speaker’s circuit, it was a very special treat to present with two lawyers for whom I have significant affinity and respect. Slides are below.

Best regards!

Dan

Case Report – Court won’t order disclosure of health professional’s identity

9 Feb

On January 27th, the British Columbia Supreme Court denied a request for an order requiring an online contact lens and eyeglass business to disclose the identity of an eye care professional it employs.

The College sought the identity of the registrant who worked for the respondents (affiliated companies) in the course of an investigation. The College applied to the Court for an order based on the Court’s equitable jurisdiction (a Norwich Pharmacal order), or alternatively, its inherent jurisdiction (in aide of an inferior tribunal).

The Court held that an order should not be made on either basis. This was partly based on a finding that the evidence did not show the unidentified registrant was involved in the matter under investigation. The Court also held that an order would not be appropriate in light of the statutory powers granted to the College. The Court suggested that the College had ample means to identify the registrant without relying on the Court, noting its power to inspect the premises and records of a registrant, the possibility of asking for warrant to search a non-registrant’s premises and the possibility of requiring registrants to file their business address and telephone number.

College of Opticians of British Columbia v. Coastal Contacts Inc., 2010 BCSC 104 (CanLII).

Case Report – Judge says, “You’ve got the hard drives, you review them.”

7 Feb

On January 27th Marrocco J. of the Ontario Superior Court of Justice dismissed a motion for a further and better affidavit because the moving party had previously taken custody of the records that it wanted the respondent to produce.

The moving party had executed an Anton Piller order that apparently gave it unrestricted access to a number of hard drives, and it used the drives to demonstrate deficiencies in the respondent’s production. In dismissing the motion, Marrocco J. said:

Rule 30.03(2) of the Rules of Civil Procedure provides that the affidavit of documents shall list and describe all documents relevant to any matter in issue in the action that are in a party’s “possession control or power…”. In this case, the respondent’s hard drives were seized under an Anton Piller order. They were imaged and the imaged hard drives were made available to the plaintiff. The plaintiff can have access to the imaged hard drives at any time. Therefore, it seems to me that the imaged hard drives are within the power, if not also the possession and control of the plaintiff. Therefore, pursuant to Rule 30.03(2), the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents.

Marrocco J. did note that the respondent had not made any claim of privilege in records contained on the hard drives.

Bell ExpressVu Limited Partnership v. Heeren, 2010 ONSC 665 (CanLII).

Case Report – Appeal Court interprets Alberta PIPA time limit

6 Feb

On January 27th, a majority of the Alberta Court of Appeal held that the time limit for completing an inquiry or giving notification of a time extension in Alberta PIPA is mandatory, but that non-compliance does not necessarily result in a loss of jurisdiction.

Section 50(5) of Alberta PIPA establishes a time limit for completing an inquiry in the following language:

50(5) An inquiry into a matter that is the subject of a written request referred to in section 47 must be completed within 90 days from the day that the written request was received by the Commissioner unless the Commissioner

(a) notifies the person who made the written request, the organization concerned and any other person given a copy of the written request that the Commissioner is extending that period, and

(b) provides an anticipated date for the completion of the review.

The majority, in a judgment written by Watson J., held that the decision to extent (and notify of the same) must be given before the expiration of the 90 day time period and that the time period is mandatory rather than directory. The majority also held, however, that loss of jurisdiction does not flow from non-compliance if there has been (my emphasis):

(a) substantial consistency with the intent of the time rules having regard to the reason for the delay, the responsibility for the delay, any waiver, any unusual complexity in the case, and whether the complaint can be or was resolved in a reasonably timely manner, and

(b) that there was no prejudice to the parties, or, alternatively, that any prejudice to the parties is outweighed by the prejudice to the values to be served by PIPA.

Berger J. dissented. He held that the time limit was directory and also took issue with the Applicant’s failure to raise a timely objection before the Commissioner.

This has obvious practical significance to the Alberta OIPC and Alberta practitioners. (Alberta FIPPA has a similar time limit.) It is also a significant administrative law decision on the mandatory/directory point that only a lawyer could love. Commissioner Work says he will appeal.

Hat tip to David Fraser. For his Slaw post that includes the relevant context, see here.

Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2010 ABCA 26 (CanLII).

Post-secondary educational institutions, technology and risk mitigation

3 Feb

I’d like to  thank the Association of Canadian Community Colleges for inviting me to speak at its winter symposium on “Technology and Web 2.0 Across Institutions.” I addressed data breaches, employee use of “consumer cloud” services, outsourcing risks and the relationship between Web 2.0 and the duty to maintain a safe and harassment free college environment. My slides are below.

I was able to stay for a good presentation by a Google rep on its enterprise offering, which has a compelling value proposition, especially given its basic license is free to educational institutions. Google is going to cause many educational institutions to work through the security and privacy related issues associated with cloud computing.

Regards!

Dan

Case Report – Court says there’s no right to forensic inspection absent evidence of non-disclosure or omission

1 Feb

On January 19th, Master Sproat of the Ontario Superior Court of Justice held that a plaintiff had provided no basis for an order permitting the forensic inspection of two hard drives. In doing so, he made the following general comment on forensic inspections as a matter of right:

Related to this point was a submission that a party was entitled, as of right, to a forensic obligation of a computer or, alternatively, that because this action involved allegations of political conspiracy, the plaintiff had a stronger entitlement to the relief sought. In my view, there is no entitlement as of right to the investigation sought by the plaintiff absent some evidence of non disclosure or omission and upon a proper consideration of the issue of proportionality now required under the new rules. Furthermore, and the nature of this case does not give this plaintiff a better entitlement than other plaintiffs. All litigants have a right to disclosure of relevant documents, regardless of the nature of the case. I do accept that electronic discovery may have a greater role or be of greater importance in certain cases over others depending on the allegations in the action (for example, if there is a dispute concerning when a key document was prepared), but this is not such a case so far as this court can discern.

The Court also dismissed a request for an order requiring the defendant municipality to conduct a second search for records in the absence of any evidence that its first search was flawed.

Rossi v. Vaughan (City), 2010 ONSC 214 (CanLII).

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