Case Report – Contact with defendant’s former employee not grounds to disqualify plaintiff counsel

On February 24th, the Ontario Superior Court of Justice declined to disqualify plaintiff counsel for its contact with a former employee of the defendant who the defendant alleged had received related confidential information in the context of a solicitor-client relationship while employed.

Plaintiff counsel represented various adult entertainment establishments in an action against the Toronto Police Services Board for matters arising out of a large scale investigation that was led by O’Mara. It claimed the TPSB was vicariously liable for O’Mara’s conduct.

In 2001, right around his retirement, O’Mara met with lawyers for the TPSB to discuss his evidence. Sometime later O’Mara contacted plaintiff counsel about providing them with private investigation services. In 2003 plaintiff counsel retained O’Mara on two files unrelated to the action against TPSB in which he prepared affidavits. It’s not clear why, but the plaintiffs produced the affidavits in the TPSB action, at which point the defendants objected to plaintiff counsel’s contact with O’Mara.

The Court held that disqualification was not justified because O’Mara did not receive confidential information attributable to a solicitor-client relationship. In doing so, it declined to apply a rebuttable presumption that such information was communicated because O’Mara did not meet with the TPSB as a client and, unlike in the Court of Appeal’s recent Humber v. Stewart decision, was a neither a potential expert witness nor responsible for giving instructions to counsel as a member of management. It said:

In light of the above, there is no reason to consider that the communications between counsel and O’Mara were other than an ordinary interview with a potential witness to obtain information from the potential witness. The fact that the potential witness was still, at the time, employed with the TPS does not change the nature of the communications. They were part of an interview with a potential witness, and not shown to be of a kind to make it reasonably likely that confidential information would be imparted to Mr. O’Mara.

In obiter, the Court also held that the relationship between O’Mara and plaintiff counsel did not support a presumption that any information within O’Mara’s knowledge would likely have be misused.

728654 Ontario Inc. (Locomotion Tavern) v. Ontario (Attorney General), 2010 ONSC 1184 (CanLII).

Ontario workplace violence bill and threat assessment take two – the domestic violence provision

I posted yesterday about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers and my theory that it is most significant because it requires good threat assessment processes. The other provision that is getting talk is the so-called “domestic violence provision.” This, in my view, is an even more direct invitation to embrace good threat assessment processes.

Come June 15th, section 32.0.4 of the OHSA will read:

If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This has people asking, “What is domestic violence?”

The term “domestic violence” has caused a distraction in my view. It is dangerous because it could lead people to get tied up in a mental knot about the variety of violence associated with a threat rather than the threat itself. While I don’t mean to discount the problem of domestic violence in the workplace and the special challenges it raises, the answer to the question above does not likely affect employer duties.

This is because it is not plausible that a threat of physical injury from violence simpliciter deserves any less management than a threat of physical injury from domestic violence. The provision therefore could have read:

If an employer becomes aware, or ought reasonably to be aware, that violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This would have been very nice language – subject to interpretation but at least clear in its intent. And if the legislature did want to signal to employers that the risk of domestic violence in the workplace is no less their responsibility to address than the risk of violence simplicter in the workplace, it could have included a deeming provision specifying that “violence” includes “domestic violence.” In my view, the duties arising from such language would have been the same as those to be confirmed by the Bill 168 provisions come June.

This brings us back to threat assessment. Distracting language aside, section 32.0.4 speaks about acting based on facts that ought reasonably be known. It signals that employers should (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time. These basic prescriptions go for all kinds of violence, domestic and otherwise.

Ontario workplace violence bill demands good behavioral threat assessment processes

Many questions have been raised about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers. My take on the provision is that the actual disclosure duty is fairly narrow, and that the provision is most significant because it requires good behavioral threat assessment processes. I’ve laid out my reasoning below.

The section everyone’s talking about is section 32.05(3). It reads as follows:

(3) An employer’s duty to provide information to a worker under clause 25 (2) (a) and a supervisor’s duty to advise a worker under clause 27 (2) (a) include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if,

(a) the worker can be expected to encounter that person in the course of his or her work; and

(b) the risk of workplace violence is likely to expose the worker to physical injury.

The first question asked about this provision is, “How do we know if a person has a history of violence?” The language of the provision is strict: it does not say “known history of violence.” Does this mean that employers must be omniscient? No.

Health and safety legislation is typically drafted in onerous language to encourage behavior that maximizes protection for workers. Though claims by employers of over-breadth and vagueness about such language are typically unsuccessful, even by promulgating meaningless language that seems to set an absurdly high standard of conduct (such as omniscience), the government cannot preclude a due diligence defence. So the government can encourage employers to act upon knowledge of an individual’s history of violence (as it has done), but can’t sustain a charge based on a failure to be omniscient if it is reasonable to protect a worker by knowing less about another individual’s history.

What is reasonable then? This is certainly a point that will be litigated, but there is a wealth of available literature on threat assessment to give employers guidance today. If I can simplify, this literature requires organizations to (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time.

What about human rights and privacy concerns? Regarding human rights concerns, threat assessment is not about “profiling” an individual based on a stereotype but, rather, is about gathering facts about behavior to understand a potential threat. Performed properly, it should be defensible. Regarding privacy, threat assessment requires access to information about threats. Employers may have a duty to gather information in the course of conducting an assessment, but the more fundamental duty is to “know what you know” by having a system in place for reporting and recording concerning behavior in the workplace, including all violent acts. This conception – know what you know and conduct threat inquires as necessary – seems to strike a fair balance between workplace health and safety and personal privacy.

For those of you interested in reading more about threat assessment, there are some leading resources at the United States Secret Service National Threat Assessment Center. The complete text of Bill 168 is here.

Case Report – Ontario C.A. comments on faculty e-mail privacy

On February 17th, the Ontario Court of Appeal affirmed an order that required images of two work computers of a university professor to be sent to France for use in a terrorism investigation. In its earlier leave decision, the Court commented generally on a faculty member’s privacy interest in her work e-mails.

Simmons J.A., sitting in chambers, made a decision to grant leave last December 22nd. In doing so, he commented on the applicant’s privacy interest in her work computer based on evidence of faculty collective agreement provisions that granted a right of privacy in personal communications. He did not have the university’s acceptable use policy before it, and refused to take judicial notice that there was a privacy-limiting policy in place. Simmons J.A. said:

I am not prepared to take judicial notice that a similar acceptable-use policy exists in this case. As I see it, the work and research generally done by university professors is qualitatively different than done by high school teachers [as in the Cole case] and could require a heightened level of personal privacy and security. In the absence of evidence on the subject, I am not prepared to assume that an acceptable use policy exists or that university network administrators were entitled to access the applicant’s private e-mail or electronic files or to monitor her Internet usage.

On the contrary, in my view, the collective agreement referred to above suggests that Carleton University professors are entitled to use their work computers for personal communications and research and that they have an objectively reasonable expectation of privacy in relation to personal electronic data. Moreover, because computers can be used to store large quantities of personal information (e.g. banking records, personal contacts, personal communications, etc.), in my opinion it is at least arguable that the applicant’s claim to a reasonable expectation of privacy in her electronic data is a matter of significant importance to her.

Though very qualified and therefore limited in its authority, this statement reveals a different attitude than is commonly expressed about stored communications on employer systems whether inside or outside of the university sector.

On February 17th, a three-judge panel of the Court dismissed the appeal without commenting on the reasonable expectation of privacy issue. The Court held that the order was lawful because there were reasonable grounds to suspect that the terrorism suspect was using the applicant’s work computers to e-mail others.

France (Republic of) v. Tfaily (2009), 98 O.R. (3d) 161 (C.A.) [not online] and 2010 ONCA 127 (CanLII).

Case Report – BCCA rejects privacy claim by criminal defendants

On March 3rd, the British Columbia Court of Appeal directed that factums filed on a criminal appeal be provided to a non-party.

While the outcome is not surprising, this is a decision in which an appellant court comments on a criminal defendant’s right to privacy. Chief Justice Finch rejected an argument made by the defendants whose order of acquittal was under appeal. They argued that access should not be granted because the factums contained references to unproven allegations of fact. The Chief Justice responded as follows:

It is common ground among all counsel with knowledge of same, that there is nothing contained in any of the factums that was not said or disclosed in Provincial Court in proceedings that were open to the public. There was no order banning publication of any of the information or material at issue on the voir dire.

It necessarily follows in my view that there is no principled basis upon which disclosure of this information to a non-party could now be refused. Everything that is to be learned from reading the factums filed in Court is already in the public domain by reason of the proceedings in Provincial Court. It has not been suggested that publication of this information would in any way prejudice the fair trial interests of the respondents should the Crown’s appeal succeed. Whatever privacy interests or protection of innocence interests may be at risk have already been overtaken by the open proceedings in Provincial Court.

The matter was before the Court because a British Columbia Court of Appeal criminal practice directive limits routine access to factums and, instead, requires that a request be made to the Chief Justice.

R. v. Bacon, 2010 BCCA 102.

Case Report – Alberta OIPC says no to credit checks as part of retail security program

On February 16th, the Alberta OIPC held that a retailer’s practice of conducting credit checks in the process of hiring sales associates violated the Alberta PIPA.

The retailer used the checks as part of a comprehensive retail security program. It argued they were justified based on two purposes:

To assess how applicants will handle financial responsibilities and tasks associated with their employment duties
To assess whether applicants have a probable risk of in-store theft or fraud

The OPIC held that these purposes did not justify the collection of credit related information. The OPIC’s reasoning is as broad or broader than its reasoning in a 2005 credit check case in which it reached the same conclusion. This suggests that Alberta’s private sector employers will need special circumstances to conduct credit checks on prospective employees.

Hat tip to David Fraser.

Investigation Report P2010-IR-001

Case Report – Newfoundland FOI judgement on “advice and recomendations” exemption

On February 12th, the Newfoundland and Labrador Supreme Court – Trial Division issued an FOI judgement. It is largely fact-specific, but the Court made this comment on the advice and recommendations exemption in the Newfoundland Access to Information and Protection of Privacy Act:

The words “advice” and “recommendations” have similar but distinct meanings. The term “recommendations” relates to a suggested course of action. “Advice” relates to an expression of opinion on policy-related matters such as when a public official identifies a matter for decision and sets out the options, without reaching a conclusion as to how the matter should be decided or which of the options should be selected.

The Court also held that the statutory privilege in section 55 of the Act protects records from production.

McBreairty v. College of the North Atlantic, 2010 NLTD 28 (CanLII).