Archive | October, 2010

Discovery agreement endorsed by Campbell J. a good sample

31 Oct

You may be interested in Enbridge Pipelines Inc. v. BP Canada Energy Company, 2010 ONSC 3796 (CanLII) for a sample discovery agreement endorsed by Cambell J. of the Ontario Superior Court of Justice. His Honour characterizes the action as complex and with “voluminous documentation.” The agreement was negotiated over six meet and confers and looks like it was modeled from the Ontario E-Discovery Implementation Committee model. Campbell J. says, “Not every action will in my view require the detailed type of plan as set out in this Agreement. Many different types of action need only an informal agreement between counsel.”

Information Roundup – 24 October 2010

25 Oct

Here are some tweets recent tweets which may be of interest.

And on a much different note, check out this nice NPR interview with Gary Golio and Javaka Steptoe, author and illustrator of a new children’s book about young Jimi Hendrix called “Jimi Sounds Like a Rainbow: A Story of the Young Jimi Hendrix.” Cool Christmas gift idea. Did I just mention Christmas in October?!

See ya!

Dan

Case Report – SCC says no class privilege to protect journalists’ confidential sources in Quebec

24 Oct

On October 22nd, the Supreme Court of Canada unanimously rejected arguments that unique features of Quebec law justify the recognition of a class privilege to protect against the identification of journalists’ confidential sources. Rather, it held that journalists who claim confidential source privilege in a Quebec civil proceeding must meet the requirements of the Wigmore case-by-case test.

The Court summarized the proper approach as follows:

In summary, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate that the questions are relevant. If the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case. At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) the public interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context-specific manner, having regard to the particular demand for disclosure at issue. It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.

The relevant considerations at this stage of the analysis, when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means.  As discussed earlier, this list is not comprehensive. I will now consider whether a claim of privilege could be established in this case.

The Court also made a notable finding in support of journalists’ right to receive and publish information obtained from whistleblowers.

The Respondent argued in support of a publication ban issued after it complained about leaks from confidential settlement negotiations. The Court stressed the strong public interest maintaining the confidentiality of settlement negotiations, but also held that confidentiality obligations held by the parties to settlement discussions do not bind others, including journalists:

Moreover, there are sound policy reasons for not automatically subjecting journalists to the legal constraints and obligations imposed on their sources.  The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples. In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not providing the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources of information.

This reasoning led the Court to reject a rule that would “automatically prevent” journalists from publishing information obtained from a source who is in breach of his or her confidentiality obligations. Rather, the Court held that the Dagenais/Mentuck test for limiting freedom of expression and freedom of the press in relation to legal proceedings applies.

Globe and Mail v. Canada (Attorney General), 2010 SCC 41.

Case Report – Ontario Court of Appeal affirms order to produce voice cockpit recordings

21 Oct

This September 17th litigation and privacy judgement by the Ontario Court of Appeal slipped me by. The Court affirmed an order that requires the Transportation Safety Board to produce cockpit voice recordings from the 2005 Air France crash in Toronto despite the statutory privilege covering such recordings. The grounds for appeal were narrow, though the Court summarizes Strathy J.’s balancing of interests and calls it “thoughtful and comprehensive.” For my summary of the Strathy J. order, see here.

Société Air France v. NAV Canada, 2010 ONCA 598

Case Report – Records protected by settlement privilege exempt from the right of public access in Ontario

21 Oct

Today, the Ontario Court of Appeal issued a significant decision in which it held that documents protected by settlement privilege are exempt from public access under the Ontario Freedom of Information and Protection of Privacy Act.

The LCBO denied access to various records related to a mediated settlement of a number of civil proceedings between itself and a winery. It relied on the “solicitor-client privilege” exemption in section 19 of FIPPA. This exemption has two branches. Branch 1 exempts records that are subject to solicitor-client privilege and litigation privilege as these privileges are recognized at common law. Branch 2 exempts records that are “prepared by or for Crown counsel for use in giving legal advice or in contemplation or for use in litigation.”

The Court of Appeal affirmed the Divisional Court’s Decision that the records were exempt because they fit within the Branch 2 exemption. In doing so, it made the following significant findings:

  • the term “litigation” in the Branch 2 exemption encompasses mandatory and consensual mediation of an Ontario civil dispute;
  • the phrase “prepared for Crown counsel” should not be narrowly read to mean “prepared at the behest of Crown counsel”; and
  • the “for use in litigation” requirement imports a requirement that the records be communicated to Crown counsel within a reasonably expected “zone of privacy.”

Though this is a very significant decision on the FIPPA Branch 2 exemption, the Court declined to opine an even more significant issue – an issue it framed as “Whether the common law settlement privilege is a free-standing exemption under FIPPA or whether FIPPA is a complete code.” The Divisional Court judgment strongly suggests that privileges recognized at common law and rooted in the public interest (such as settlement privilege) can trump the FIPPA right of access.

Liquor Control Board of Ontario v. Magnotta Winery Corporation, 2010 ONCA 681.

Case Report – Court comments on legality of surreptitious video surveillance

20 Oct

On October 6th, Ramsey J. of the Ontario Superior Court of Justice made the following comment on the legality of surreptitious video surveillance in striking a claim that alleged an “unlawful investigation scheme”:

As I have noted, the only conduct about which facts are alleged with any particularity consists of the insurance company hiring an investigator to investigate the plaintiff, and the investigator’s approach to a neighbour, during which he made himself known to the neighbour, who immediately told the plaintiff that the plaintiff was being investigated. That cannot possibly sustain a claim of wrongdoing or improper motivation.

Insurance companies are entitled to conduct surveillance of plaintiffs if they do so within the confines of the law. They cannot trespass on private property and they cannot intercept communications electronically. They cannot threaten witnesses or litigants. They cannot commit the tort of defamation. The plaintiff does not claim that they did. The fact that a private investigator is conducting an investigation is not defamatory. Anyone who is involved in a car accident or a divorce might be investigated by a private investigator.

Insurance companies do not need grounds to believe that the plaintiff is making a fraudulent claim before they conduct an investigation. They can conduct surveillance to refute a claim, to confirm a claim, or to see whether a claim is valid or not. They can photograph a plaintiff in places open to public view. They can identify themselves to the neighbours, and ask them for information about the case. Stripped of bald assertions and fanciful conclusions, the statement of claim alleges no wrongful acts and nothing from which improper motivation could be inferred.

This certainly highlights the significance of the Federal Court’s recent State Farm decision, which suggests that the collection of evidence in defence of a civil action is not PIPEDA-regulated notwithstanding the involvement of “commercial” actors such as insurers, lawyers and private investigators.

Pontillo v. Zinger et al., 2010 ONSC 5537 (CanLII).

Case Report – NSSC comments on litigation privilege and internal investigations

14 Oct

On October 5th, Justice Moir of the Nova Scotia Supreme Court made the following comment about litigation privilege and internal investigations:

Chrusz cannot stand for the proposition that once an investigation finds wrongdoing, and litigation is anticipated, litigation privilege attaches. That would be contrary to established principle: receiving legal advice about the litigation, or aiding its conduct, has to become the dominant purpose of the investigation.

Employers who investigate an employee for wrongdoing will have termination of employment in mind. Employers who have termination in mind will often reasonably anticipate litigation. However, such investigations are usually for the dominant purposes of getting to the bottom of the circumstances, and deciding what to do about the person’s employment once the facts are known.

His Honour’s judgment is otherwise a fairly fact-specific treatment of various privilege claims.

Saturley v. CIBC World Markets Inc., 2010 NSSC 361 (CanLII).

Case Report – Court says random drug testing reasonable

2 Oct

On September 20th, the New Brunswick Court of Queen’s Bench quashed a November 2009 alcohol testing award that held Irving Pulp & Paper had insufficient justification to implement random alcohol testing at a pulp mill.

The Court held that the majority of an arbitration board erred by finding that employers who operate “dangerous workplaces” (in which there is a risk of an accident with catastrophic consequences) must demonstrate a history of alcohol-related incidents to justify random alcohol testing. It suggested that if a workplace is dangerous, a program of random alcohol testing by breathalyzer that applies only to safety-sensitive positions is reasonable.

This is a significant judgment that is far more tolerant of random testing for current impairment than Arbitrator Michel Picher’s leading Imperial Oil case from 2007, affirmed by the Ontario Court of Appeal as reasonable in May 2009. The Court noted the Imperial Oil decision, but did not make comment on it in its analysis.

Irving Pulp & Paper, Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30, 2010 NBQB 294.

Information Roundup – 30 September 2010

1 Oct

Here are some recent links you might be interested in:

And for something different, check out the wonderful video below by surf movie director Matt Kleiner. I could tell it was special when I watched it with my one year old, who was mesmerized. Me too. Looks like Matt has a five surf documentary project on the go called Way of the Ocean that will launch this fall with a movie about one of my favorite countries, Australia. Based on the quality of his shorter works the Way of the Ocean movies should be wonderful.

See ya!

Dan

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