Here are some slides I used to facilitate a discussion between a group of in-house employment counsel and me and three of my Hicks Morley colleagues on Friday. We dealt with two common and difficult scenarios for employers I called “The Outside Aggravator” and the “The Wikileaks Scenario” and also the topic of online investigations. I hope these are helpful in provoking good throught.
Archive | June, 2011
PSLRB Says Public Servant Deserved Suspension for Publishing Advertorial
11 JunThe Public Service Labour Relations Board issued an award on April 4th that illustrates the balancing of interests that defines the scope of a public servant’s duty of loyalty.
Adjudicator Love upheld a five-day suspension for conduct he characterized as making a “deliberate and unwarranted attack” on public officials and government. The grievor, a clerk in the Department of Public Works and Government Services, paid for a full-page advertorial in the National Post to take issue with the manner in which the government handled his application for an internal job competition. In particular, the grievor alleged that the Minister abused his power and that the Ethics Commissioner, the Treasury Board President and the Auditor General dropped the ball with respect to his case.
Adjudicator Love balanced the grievor’s right of expression against the government’s recognized interest in maintaining a public service that demonstrates impartiality, neutrality, fairness and integrity. He considered the following factors in upholding the government’s penalty:
- the grievor published the advertorial four days before a federal election
- the subject matter of the advertorial was of a personal rather than public interest
- the advertorial directly attacked individuals
- the advertorial lead readers to believe the greivor held a position of some responsibility
- the advertorial was published in a national newspaper, with high visibility
- the issues raised by the advertorial were sensitive, relating to abuse of power and lack of integrity, and were published around the same time the department was under scrutiny during the Gomery Inquiry
- the advertorial inaccurately suggested that the grievor had exhausted all internal avenues
Adjucator Love ends by stressing the seriousness of defaming public officials without justification: “Cases such as Chopra (see paragraph 44 of that decision) make it clear that, even if an employee exhausts internal recourses before going public, certain communications may still breach the duty of loyalty, if they attribute inappropriate motives to a minister and his or her department.”
MacLean v. Treasury Board (Department of Public Works and Government Services), 2011 PSLRB 40.
Question of Remedy for Privilege Breach Back to Securities Commission in Knowledge House Affair
11 JunOn Thursday, the Nova Scotia Court of Appeal issued a judgement about the Knowledge House affair, which has become as notable for the handling of an e-mail server containing solicitor-client communications as for the securities law issues at its heart.
In 2005, Justice Scanlan issued a scathing judgement in which he rejected an argument that certain individuals had waived privilege by sending communications over a company-owned server. In the result, he ordered removal of counsel who had seized the server and reviewed e-mails in prosecuting a civil claim on behalf of National Bank Financial Limited.
The Nova Scotia Securities Commission obtained privileged communications from NBFL and allegedly reviewed them in aide of its investigation. The Court of Appeal dealt with the affected persons’ quest for a remedy against the Commission in 2006. Justice Cromwell (as he then was) held that the affected persons’ application for certiorari was premature, but said the Commission should take “serious and immediate steps” to do right. The Commission did not respond to the Court’s suggestion by initiating proceedings to resolve the privilege issue. Instead, it issued formal allegations. The affected persons then moved before the Commission for a remedy. In June 2010, after numerous intervening proceedings, the Commission held that the privilege breach issue should not be bifucated and dealt with in advance of the merits of the Commission’s allegations.
Thursday’s decision is strictly procedural. Though it recognized that the hanging investigation and privilege question has been “stressful and costly” for the affected persons, the Court held that the delay in hearing the request to remedy the privilege breach was understandable and that the request for a remedy could be dealt with by way of a voire dire at the commencement of the hearing of the Commission’s allegations. It upheld the Commission’s decision.
Surveillance Evidence and the Reasonableness Requirement Debate – Where do Ontario Arbitrators stand?
8 JunOntario Labour Arbitrator Brian Sheehan is the latest arbitrator to weigh in on whether it is proper for a labour arbitrator to exclude relevant surveillance evidence because the surveillance evidence does not pass an objective “reasonableness” test. In International Hotel v. United Food and Commercial Workers, Arbitrator Sheehan dealt strictly with the legal test. He held that arbitrators can and should exclude evidence obtained through covert off-duty surveillance if the surveillance effort is not reasonable in all the circumstances.
There is quite a split in opinion amongst arbitrators on this question. Here is my understanding of where Ontario arbitrators stand.
This list is based on Ontario because the debate seems most alive here. Also, as some have argued, there is a statutory underpinning for privacy rights in other provinces that makes Ontario unique.
I must make two qualifications given the above display’s simplicity. First, the list doesn’t indicate the strength with which arbitrators have endorsed the two positions or their bases for doing so (which vary). Second, it is also not to suggest that the all the “reasonableness arbitrators” have adopted the same standard. Some, for example, have suggested that reasonableness should be assessed with an understanding that excluding relevant evidence significantly affects an employer’s right to be heard and an arbitration board’s truth-seeking function.
Order to Identify Anonymous Message Board Users Granted (Ontario)
6 JunOn May 30th, the Ontario Superior Court of Justice granted an order to defamation plaintiff Richard Warman to help him identify two individuals he alleges defamed him by posting comments on the “Freedominion” message board.
Mr. Warman’s process of identifying eight “John Doe” defendants has taken some time. He first obtained an order in March 2009, but it was quashed in May 2010 by the Divisional Court – see “Court says suing message board operator not an easy means to identify anonymous internet users.” Following the Divisional Court order, Mr. Warman discovered six of the John Does’ identities without the aide of a court order. He then came back to the Court to identify the unidentified two.
Justice Blishen issued an order requiring the operators of the Freedominion site to provide identifying information over their objection and based on the four-part test articulated last May by the Divisional Court. She rejected an argument that the use of pseudonyms gave the unidentified John Does a reasonable expecation of privacy. She also rejected an argument that the common use of “hyperbole” and “exaggeration” on the Freedominion site rendered the impugned publications incapable of having a defamatory meaning.
Hat tip to Peg Duncan!
Social Media and Municipalities
4 JunHere’s a social media presentation I did yesterday at the Ontario Municipal Insurance Exchange’s annual professional development day.I’ve presented most of this content before, but my take on social media management is slowly evolving.
Thanks to the post-presentation discussion yesterday I have a couple of good new issues to ponder: (1) can municipalities bar counselors from tweeting the contents of open council meetings? and (2) can municipalities bar counselors from texting during open and/or closed meetings of council? I expressed some qualified views yesterday that I’m not yet ready to print, but am very intrigued and will follow-up on these issues. Thanks OMEX!
