Archive | March, 2011

No Invasion of Privacy Tort in Ontario

23 Mar

The Ontario Superior Court of Justice issued a significant judgment today in which Justice Whitaker held that Ontario law does not recognize a common law invasion of privacy tort. More specifically, he held that he was bound by the Court of Appeal’s 2005 judgment in Euteneier v. Lee, in which the Court commented that there is no “free standing” right to privacy in assessing a privacy-related claim by a police detainee that was based in negligence, assault, civil conspiracy and the Charter. Justice Whitaker said:

While it is certainly the case that in Euteneier, the plaintiff was not suing on the basis of an intentional tort, the extent to which privacy rights are enforceable at law was squarely before the court for the purposes of determining the content of the duty of care owed by the police to the plaintiff while in custody. In my view, the inescapable conclusion, put quite plainly by the Court of Appeal in paragraph 63 of that decision, is that “there is no ‘free standing’ right to… privacy… at common law.”

Justice Whitaker departed from the Court’s well-known decision in Somwar v. McDonald’s Restaurants of Canada. Justice Stinson decided Somwar shortly after the Court of Appeal decided Euteneier and did not consider it in finding (on a summary judgment motion) that it is not settled law in Ontario that there is no tort of invasion of privacy.

Alex Cameron acted for the defendant.

Jones v. Tsige, 2011 ONSC 1475.

Ontario Work Computer Search Case – Privacy Concerns Real but Employers Still may Govern

23 Mar

Posted on today’s Ontario Court of Appeal judgement over at Slaw.

The Far Reach of the CRA

21 Mar

When employers provide employee benefits, they are required to include the value of the taxable benefits in the income of employees.  If an employer does not properly report the taxable benefit, the Canada Revenue Agency (“CRA”) has considerable power to require employers to disclose the names and related information of the taxpayers who enjoyed the taxable benefit.  As discussed in Minister of National Revenue v. Lordco Parts Ltd., this also applies if a business provides taxable benefits to its customers.

Following an audit of Lordco, the CRA noted that Lordco established an incentive program, which included a bi-annual cruise for its customers who had earned rebates based on the volume of their purchases of Lordco products.  The customers could purchase tickets for the cruise using the rebates.  Corporate customers nominated individuals to attend the cruise as representatives.  Only 30% of the cruise related to business activities.

According to the CRA, Lordco was required to report the benefits enjoyed by the individual attendees.  When Lordco failed to complete such reporting, the CRA issued a “named requirement” requiring Lordco to provide a list of the individuals who attend the cruise.  Lordco refused to provide any names, addresses or registration forms, on the basis that the information related to unnamed third party individuals.  The CRA applied, without notice , for an order of the Federal Court requiring Lordco to produce “information and documents relating to certain persons whose identities are unknown to the Minister”, being the individual representatives of customers of Lordco.

The Federal Court granted the order, recognizing that obtaining information relevant to the tax liability of some specific person(s) whose tax liability is under review is a purpose related to the administration or enforcement of the Income Tax Act (“ITA”) and does not violate any rights of taxpayers under section 8 of the Charter of Rights and Freedoms (the Supreme Court of Canada has previously stated that taxpayers do not have a high expectation of privacy in relation to documents concerning tax matters).

The CRA is permitted to request third party information related to unknown persons with the authorization of a judge.  Two conditions must be met for an order to be made: (i) the individual or group is ascertainable; and (ii) the production is necessary to verify compliance with the ITA.  Finding both conditions met in this case, the Federal Court ordered that the CRA was authorized to impose a requirement to produce the information regarding the customers who went on the cruise, failing which Lordco could be subject to fines under the ITA up to $25,000 or both fine and imprisonment up to 12 months.

This is a reminder of how far the CRA’s reach can be extended when it comes to obtaining information for the purpose of identifying tax payers and ensuring compliance with the ITA.  Employers and businesses are not able to refuse production on the sole basis that the information pertains to unidentified third parties (e.g., representatives of corporate customers) when the CRA is attempting to verify compliance with the ITA.

Express Confidentiality Order Okay Protection for Customer Personal Information

12 Mar

On March 11th, the British Columbia Supreme Court ordered two directors of a plaintiff corporation to sign a confidentiality agreement as a means of protecting customer information. The defendant had proposed a more costly masking procedure.

The dispute was about an online retail business. The plaintiff claimed damages for failure to account for profits and for the return of two customer databases. The databases themselves were themselves relevant to either one or both claims. The defendant, in custody of the databases, proposed a masking procedure to be paid for by the plaintiff to protect against the disclosure of customer personal information, including customer addresses, e-mail addresses and credit card numbers.

Armstrong J. held that privacy concerns of non-parties should be addressed in determining the scope of documentary discovery, but stressed the court’s discretion and the presumed efficacy of the implied undertaking. In the circumstances, he held that a masking order was not warranted.

Animal Welfare International Inc. v. WS International Media Ltd., 2011 BCSC 299.

IMAPS 2011 – The Sedona Canada Panel on Privacy and E-Discovery

12 Mar

Alex Cameron and I presented on e-discovery and privacy today at “IMAPS 2011″ on behalf of the Sedona Canada working group. The Information Management Access Privacy Symposium is a fantastic annual event hosted by the Office of the Chief Information and Privacy Officer of Ontario. It was an honor to present.

Alex and I were one talking head short of an honest “panel,” but nonetheless had some good back-and-forth in delivering a presentation that is meant to provide a general overview of the privacy and e-discovery topic, with a focus on law and practice applicable to the Ontario public sector. Slides below.

There is such a thing as “too much information”….

10 Mar

In the United States, the Federal Rules of Appellate Procedure limit appellate briefs to 14,000 words.  The Seventh Circuit Court of Appeals recently faced a case where one of the parties had submitted an 18,000 word brief.  The court issued an order to show cause why the brief should not be “stricken and/or sanctions imposed for failing to comply with Rule 32 and making a false representation to the court.”  The court heard argument that the error was inadvertent.  The court rejected that argument.  In a decision written by Justice Posner, this stern warning was issued:

The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning. But in addition it is plain from the briefs that the appeal has no merit. To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.  The motion to file an oversized brief is denied and the judgment of the district court summarily AFFIRMED.

A link to the decision,  is here.

NSCA Opines on Waiver of Privilege

9 Mar

Last Friday, the Nova Scotia Court of Appeal issued a judgment in which it affirmed a finding that that the province’s Department of Transportation and Infrastructure Renewal waived privilege by providing a summary of an opinion to citizen who later requested a copy of the full opinion in an FOI request.

The Court rejected the Department’s argument that privilege held by the provincial crown can only be waived by the executive branch. It said that, “a court should look at the authority of a particular government actor and determine whether the advice sought and any waiver ‘follow’ or is ‘coextensive’ with that person’s subject-matter and/or territorial responsibilities.”

The Court also affirmed a finding that the Department official who disclosed the summary did not “voluntarily evince an intention” to waive privilege by making the summary. It did not quarrel with case law the Department put forward for the principle that sharing the conclusions of a legal opinion does not indicate an intention to waive privilege. Rather, the Court relied on the application judge’s finding that the offical had disclosed reasons for the opinion along with the “heart of the opinion.”

Finally, the Court made a comment on waiver of privilege based on the need to promote fairness and consistency. It did not outright reject the Department’s argument that the fairness and consistency basis for waiving privilege applies only in the context of litigation, but suggested (at para. 42)  that fairness issues are engaged when a government actor responds to valid queries from a citizen by reference to a legal opinion.

Nova Scotia (Transportation and Infrastructure Renewal) v. Peach, 2011 NSCA 27 (CanLII).

Enhanced Access To Information on Marriage Breakdown

8 Mar

The long awaited Family Law Matters Regulations supporting Bill 133, the Family Statute Law Amendment Act, 2009, have been released for comment by the Ontario Government.  Bill 133, once in force, will radically alter the marriage breakdown pension division regime in Ontario.  In addition to expediting the division process by moving to an immediate division system (currently spouses must wait until the member of the pension plan retires or terminates employment before the pension can be divided), Bill 133 and the Regulations provide for greater access to information for non-member spouses.

Under the current system, a spouse is not automatically entitled to information regarding a member’s pension.  Plan administrators are required to protect a member’s personal information – including the quantum of his or her pension accruals.  For the spouse to obtain information regarding the member’s pension, the member must consent in writing.  Where that is not possible (e.g., the member is unwilling), often a court order is necessary.  The only statutory right to information arises once a separation agreement or court order dividing the pension has been filed with the administrator, in which case the spouse is entitled to notice when the member is terminating and the same options as the member with respect to the transfer or payment of the pension.

Once Bill 133 is in force, either spouse will be permitted to apply to a plan administrator for a statement of the value of the member’s pension (for family law purposes).  The statement will be required to be in the prescribed form and contain specified information:

  • particulars identifying the pension plan;
  • the name and birth date of each spouse;
  • the employment and membership status of the member;
  • the date of marriage or co-habitation;
  • the date of separation;
  • the value of the pension benefits determined for family law purposes; and
  • any related financial information (e.g., whether the member has accumulated additional voluntary contributions).

The statement must also set out general information regarding the plan, including its funded status and whether there is a wind up or surplus related event that would impact the member’s entitlement. Administrators will be permitted to charge a small fee for the creation of these statements (no more than $500 if the plan provides defined benefits).

Ontario has lagged behind other jurisdictions with respect to spousal rights to access pension-related information.  Bill 133 “equalizes” the playing field for spouses dealing with marriage breakdowns by ensuring that both spouses have easy access to the information required to understand and address the division of the pension in the family law case.

Does qualified privilege apply in a “public space”?

7 Mar

In Rodrigues v. Toop, 2011 ONSC 794, the Ontario Superior Court of Justice court recently considered whether qualified privilege applied to a communication in a public space.

The Plaintiffs were members of a union local executive.  The Defendant was a union steward who distributed a flyer in a public car park to individuals who identified themselves as union members, containing allegedly defamatory statements about the members of the executive.  The issue was whether qualified privilege attached to the communications.  The Plaintiffs argued that when the flyers were distributed in a public place and not at a union meeting, qualified privilege no longer applied.

The court held that the Defendant’s method of communication “was less than ideal” but that qualified privilege attached because, while the distribution of the flyer took place in a public space, “it was not a public message”.  The key factual finding for the court was that there was no evidence that the Defendant had distributed the flyers to any member of the general public (ie. to a non union local member) and that therefore “the reputation of the Plaintiffs was not tainted in the general public”.

This decision represents a potentially important application of the principle that qualified privilege will only attach where the person who makes the statement has an interest or a duty to make it to the person to whom it is made, and that the other person has a corresponding interest or duty to receive it.  It remains to be seen whether the “public space” vs. “public message” analysis will take hold.

A link to the decision is here.

Nova Scotia CA Favours Open Courts Over Youth Privacy in Facebook Defamation Case

4 Mar

The Nova Scotia Court of Appeal has just issued a decision in which it affirmed a decision to deny a potential defamation claimant the use of a pseudonym (initials) in pursuing a defamation claim.

The appeal was brought by a 15-year-old girl who has taken issue with an individual who created a fake and allegedly defamatory Facebook profile in her name. In May 2010, she succeeded in arguing for production of the identity of the individual associated with the fake profile before LeBlanc J. of the Nova Scotia Supreme Court. At the same time, LeBlanc J. denied the appellant an order permitting the use of a pseudonym and denied her a publication ban.

Saunders J.A. wrote today’s judgment for the Court of Appeal. He upholds LeBlanc J.’s order on a deferential standard, but nonetheless makes some broad and principled statements in favour of the open courts principle. More specifically, he says:

  • that a court should not apply its parens patriae jurisdiction to allow a child to sue anonymously for defamation (para. 65);
  • that an order to shield the identity of a defamation plaintiff (regardless of age) is an anathema to an action in defamation, which is about public vindication of reputation (paras. 80 to 85); and
  • that the presumed damage to reputation that flows from a defamation finding does not excuse a party who is seeking a restrictive order from proving “a serious risk to the proper administration of justice” as called for by the Dagenais/Mentuck test (para. 96).

Saunders J.A. ends by saying that openness will produce a laudatory result in the circumstances: “The public will be much better informed as to what words constitute defamation, and altered to the consequences of sharing information through social networking among “friends” on a 21st century bulletin board with global reach.”

A.B. v. Bragg Communications Inc., 2011 NSCA 26.

← Older Entries

Follow

Get every new post delivered to your Inbox.