All About Information

On September 22nd, the Alberta Court of Appeal varied an ex parte order that required defendants in a departing employee case to list and compile information and produce it to the plaintiff as a means of preservation. The Court characterized the order as a “hybrid” preservation order – featuring more than a bare direction to preserve and less than authorization to seize. It held that the order was flawed because it required delivery of records directly to the plaintiff without regard for their relevance and potentially privileged status.

KOS Oilfield Transportation Ltd. v. Mitchell, 2010 ABCA 270 (CanLII).

On September 14th, Chief Justice Green and and Justice White, on behalf of the Newfoundland and Labrador Court of Appeal issued a principled judgment on quashing subpoenas in civil proceedings. On applying the relevance standard, the justices say:

Additionally, even if the material sought can be said to be relevant in this sense, there may be, as Re General Hospital Corporation indicates, other grounds on which a person subpoenaed may be able to quash the subpoena or at least postpone its execution. Aside from issues involving irregularity in issuance, and other grounds of inadmissibility, such as privilege and specific statutory exceptions, most other grounds are a manifestation of the jurisdiction of the court to control an abuse of its process. This involves taking into consideration the interests of the subpoenaed witness as well as the interests of the litigants by looking at the actions, motivations and purposes of the party issuing the subpoena as well as the impact on the person subpoenaed. Insofar as the litigant issuing the subpoena is concerned, the bona fides of the issuer may be inquired into with a view to determining whether the subpoena has been issued for an improper purpose. With respect to the subpoenaed person, the court could inquire into such issues as whether, given the significance of the evidence and the timing of the request for production, the request can be said to work an unnecessary hardship or would be oppressive as to the number, nature or breadth of the documents required, considering the time and expense involved in obtaining the information and the degree of private, personal information involved. This is essentially a balancing exercise, involving the application of the proportionality principle recognized by this Court in Szeto et al v. Field, 2010 NLCA 36 (CanLII), 2010 NLCA 36.

The matter at issue involved a subpoena duces tecum issued to the live-in partner of an individual from whom the applicant was seeking child and spousal support. The applicant sought specific information about the new partner’s financial affairs. The justices held that such information is not necessarily relevant when the quantum of support is in issue. Rather, they said, a more “nuanced” analysis is required:

The Court must consider how and to what extent any of that information may be necessary to resolve the specific support issues as they present themselves in the context of the specific case. Because of the potential impact on the partner’s privacy interests, if that information should be provided, the timing becomes a relevant consideration, as well as whether the information could be obtained in a less intrusive way from another source

In a way, this judgment is a follow-on to the Chief Justice’s exposition on proportionality in the May decision Szeto v. Dwyer, noted in the quote above. Both judgments seem to recognize a that personal privacy should be considered as part of the proportionality analysis.

Carroll (Re); Kent v. Kent 2010 NLCA 53.

On August 30, Arbitrator Steeves of British Columbia dismissed a privacy grievance that challenged the implementation of a fleet telematics program. The decision is significant because Arbitrator Steeves dismissed the grievance before balancing interests, based on a finding that the telematics data collected by the employer was not personal information in the context. He explained:

It is true that the data contains information about the stop times of a vehicle and this may also be information about the activities of the driver/employee. However, I agree with the analysis in Nav Canada, supra, that this type of information does not engage the right to privacy of individual employees. It is also true that the Telematics data may lead to decisions by the Employer to discipline employees. There are two responses to this concern. First of all, the data does not provide a complete or reliable picture of the activities of an individual and other information would be required to sustain just cause for discipline (actual cases of discipline will have to be judged on their individual circumstances).

Second, to paraphrase Nav Canada, the possible use of the data to evaluate the performance of employees does not transform the information into personal information under PIPA. The information may have the effect of permitting or leading to the identification of a person and it may assist in a determination as to how he or she has performed his or her task in a given situation. “But the information does not thereby qualify as personal information. It is not about an individual, considering that it does not match the concept of “privacy” and the values that concept is meant to protect. It is non-personal information transmitted by an individual in job-related circumstances” (Nav Canada, supra, paragraph 54, emphasis in original). I note in Nav Canada that the information related to recorded communications of employees and there was no real dispute that the information was about the employees. Therefore, it was more directly applicable to issues of discipline than the information in this case which primarily relates to the operation of company vehicles.

In summary, I am not persuaded that the collection and use of an employee’s name, by itself, is collection and use of information that is “fundamental” to the “dignity and integrity” of the employee (Dyment, supra). Put another way, in the circumstances of this case, the collection of information about the operation of a company vehicle, that also includes the name of the driver of the vehicle, does not transform that data into “personal information” under PIPA. I conclude that the data from the Telematics devices can be considered in the same way as the information obtained from the tachograph in Dominion Dairies, supra. The Employer in this arbitration is entitled to know what its employees are doing when they are working and when they are using company vehicles. This information assists management by providing reliable and objective information to improve the efficiency of the vehicle fleet. The same information is not “about” an individual employee and it may be used as part of Employer investigations of disciplinable offences without violating the privacy of employees. As stated in Nav Canada, supra, information that is transmitted by an individual in job-related circumstances is not information about that individual.

Whether information is “about an individual” is a very contextual question. In this case, the outcome was driven by the nature of the data collected (which could only support general inferences about individuals), the employer’s restriction on personal vehicle use and a conclusion that the employer’s primary purpose for collecting the data related to vehicles and not to individuals. Though the case is therefore fact driven, Arbitrator Steeves’ analysis is strong and adds nicely to the arbitral privacy jurisprudence.

Otis Canada v. International Union of Elevator Constructors, Local 1 (Telematics Device Grievance), [2010] B.C.C.A.A.A. No. 121 (Steeves) (QL).

Here are some links from within the domain:

• RT @slaw_dot_ca Cleaning files from hard drives — Slaw http://bit.ly/dwMPXp [Commented on it.]
• Tax accountant privilege http://bit.ly/aBe6gh
• NPR: University Attendance Scanners Make Some Uneasy-More at http://n.pr/129482104
• RT @slaw_dot_ca Authentication and Trust – Some Preliminary Thoughts http://bit.ly/cLx0P8
• RT @privacylawyer Privacy interests to be considered in publication ban http://bit.ly/b4Wruz
• RT @slaw_dot_ca Should Municipalities (or Other Public Bodies) Have Facebook Pages? http://bit.ly/cEIW5m
• RT @slaw_dot_ca iPhone Spy Phone http://bit.ly/bjj6wL
• RT @slaw_dot_ca Quality, process versus outcome, commodification and the business of litigation today — Slaw http://bit.ly/alS1LI
• NPR: Using Your BlackBerry Off-Hours Could Be Overtime [Policy on which law is based is too stale!]-More at http://n.pr/129184907
• sectorprivate U of O pushes back verdict on email service over privacy: http://www.ottawacitizen.com/mobile/iphone/s.. http://bit.ly/a38uni #privacy

I’ve been in Halifax for the last couple of week’s on “vacation.” The quotes are necessary because it involved far too much work, but also some awesome surf. Hugo caught his first wave, and Hurricane Danielle brought three days of great surf for Dad (pic below).

Tomorrow’s another story though, as Hurricane Earl is bearing down on Nova Scotia as I write. I’ve been through a couple of Tropical Storms but never a hurricane. Looks like tomorrow morning will probably be sub-hurricane in Halifax, but you never know. I’ve got a car full of gas, lots of water and food and a case of beer. Seanna and fam left this morning, so if we have power I might just get some work done before a late afternoon windsurf. Here’s to hoping everyone stays safe!

Dan