The BC Labour Relations Board has found, in a recent decision, that an employer had just cause to terminate two employees who posted on Facebook comments highly critical of the employer and other employees. The Board dismissed claims that the terminations were an unfair labour practice related to the employees’ support of a successful unionization drive. Interestingly, the Board dismissed any privacy-related claims by the dismissed employees, given the large number of Facebook friends that they each had (100 and 377 respectively), including other employees of the employer.
Archive | January, 2011
SCC Clarifies Test for Access to Trial Exhibits
31 JanPaul Broad posted earlier today about Friday’s Supreme Court of Canada judgment on media access to courts and its right to broadcast audio recordings of proceedings. Its companion decision – “Canadian Broadcasting Corporation II” - is much less principled, though does settle a debate about whether access to and use of exhibits is governed by the approach endorsed in Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671 (burden of justification on media) or in Dagenais/Mentuck, [1994] 3 S.C.R. 835 (burden of justification on person or persons opposing access).
In a judgement written by Dechamps J., the Court unanimously held that Dagenais/Mentuck governs with the factors identified in Vickery remaining relevant. The Ontario Court of Appeal took a similar position in a judgement last November.
SCC Considers Media Access to the Courts
31 JanIn Canada Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, the Supreme Court of Canada considered the extent to which the media should have unrestrained access to courthouses and whether the media could broadcast official court audio recordings of proceedings.
The genesis of the case was the passage of rules restricting the areas within certain Quebec courthouses in which reporters could conduct interviews or photograph participants. While not completely barred from undertaking such activities, the reporters were prevented from doing so in areas in which they had previously operated. Moreover, the rules prevented the broadcasting of audio recordings of proceedings, both the official recordings as well as recordings made by the reporters themselves.
The Court analysed the case as a question of a restriction on freedom of expression, of which the freedom of the press is an integral part. Moreover, the Court recognized that media access to the courts is essential to a meaningful “open court” principle, as the vast majority of Canadians obtain their information about, and understanding of, court proceedings from media coverage.
Nevertheless, the Court found that the restrictions, while infringing freedom of expression, were justifiable under the Charter. Notably, the Court found that it was reasonable to preserve a necessary level of decorum and serenity of hearings, which are essential to the proper administration of justice. Apparently, the Court was concerned that the ability (and willingness) of witnesses to testify in proceedings was being compromised by the concern over being photographed or subjected to unsolicited questions and interviews. It was also feared that the broadcast of audio recordings would have a similar detrimental effect, in addition to being overly invasive of the privacy of participants in the process. Thus, the unrestricted media access was felt to be affecting the proceedings themselves, and potentially undermining trial fairness and the quest for truth.
John K. Rabeij Named Executive Director of The Sedona Conference
29 JanThis a quick post to pass on the news that John K. Rabeij will succeed Richard Braman as Executive Director of The Sedona Conference – the non-profit educational organization that has influenced Canadian e-discovery practice through its “Sedona Canada Principles.”
TSC’s press release says the following about Mr. Rabeig:
Mr. Rabiej graduated with a Bachelor of Arts degree from Loyola University (Chicago) in 1975. He earned his juris doctor degree from the University of Illinois College of Law in 1978 and a Master’s degree in International Relations from Georgetown University in 1983. Mr. Rabiej has published numerous chapters and articles in Moore’s Federal Practice (Third Edition) and Weinstein’s Federal Evidence treatises on issues about electronic discovery, asset forfeiture, and authentication of electronic evidence. His works on rules-related issues have been published in the Federal Litigation Guide, Practical Litigator, and Matthew Bender’s Forms. Mr. Rabiej writes bi-monthly expert commentaries for LEXIS-NEXIS on electronic discovery issues. He was elected to the American Law Institute in May 2004.
Ralph Losey is a core member of the American e-discovery community and has posted an announcement with some additional context here. Braman will continue his valued contribution to the advancement of e-discovery practice by serving as TSC’s Chairman of the Board and Co-Chair of its Executive Committee.
Incidentally, the Sedona Canada working group has recently issued a public commentary version of a paper on proportionality. It’s available here with instructions on how to provide feedback.
Party complains about receiving confidential information of non-parties. What next?
28 JanOn January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.
Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”
Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties? (2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?
Martenfeld v. Collins Barrow Toronto LLP, 2011 ONSC 441 (CanLII).
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Party complains about receiving confidential information of non-parties. What next?
28 JanOn January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.
Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”
Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties?(2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?
Mining Information From Social Media Sites
27 JanInteresting article in today’s Ottawa Citizen, on how some insurance companies use information obtained on social media sites to counter claims of disability. We’re seeing these issues arise more and more in the workplace as well.
Nova Scotia CA opines on scope of employers’ right to address off-duty conduct
27 JanThis is the title of a post I published over at Slaw.ca about a Nova Scotia Court of Appeal judgement from yesterday. Click here for more.
The Pitfalls of Accessing Private Emails
25 JanHere’s a link to a Law Times article, reviewing an interesting decision recently released by the B.C. Supreme Court, which awarded damages for improper publication of the plaintiff’s personal emails. The parties were former spouses who were already engaged in extensive family law litigation — which sets the unfortunate and messy backdrop for the privacy-related litigation. The defendant husband published a number of defamatory comments about his ex-wife, by way of emails and internet postings. He included references to private email exchanges of his former spouse, and which he discovered on an old home computer.
The Court concluded that the defendant had “taken his battle with [his ex-wife] over custody and access far outside the ordinary confines of the family court litigation.” In addition to defaming his ex-wife, the defendant was found to have breached her privacy by publishing the contents of her private emails. As a result, he was ordered to pay damages of $40,000 for breach of privacy and defamation.
The breach of privacy aspect of the decision flows from B.C.’s Privacy Act, which creates an express statutory recourse for privacy violations. Other jurisdictions, including Ontario, have not adopted such statutory causes of action for violation of privacy, so courts in those jurisdictions would not necessarily arrive at the same result. However, some cases have suggested that there may be a common law tort for invasion of privacy, which could form the basis for similar claims.
The decision provides a reminder of the need to be prudent in accessing – and certainly in publishing – emails in respect of which there is a right or an expectation of privacy.
Also a good reminder of the wisdom of avoiding family law litigation!
The Special Case of E-Mail (as Electronic Evidence)
25 JanI attended and presented at Day 1 of the Osgoode Short Course in Obtaining, Producing and Presenting Electronic Evidence.
Thank you to Chuck Rothman of Wortzman Nickle for fielding my question about preserving web based communications. He suggested that Adobe Acrobat does a good job of producing a reasonably true copy of web page renderings, but should be used in conjunction with good evidence handling practices – e.g., keeping a log of steps, hashing the file produced and so on. Chuck also mentioned Facebook’s new feature that allows users to download profiles as worth thinking about when dealing with Facebook preservation issues.
I presented with John Gregory on “The Special Case of Email.” John is a true authority on electronic evidence, and I’ve been lucky to do this presentation with him a few times now. Our slides are below.
For some of John’s materials on electronic evidence, check out his web page here. We also noted Stephen Mason’s excellent website as a resource on electronic evidence. It is linked here.
