Archive | August, 2011

Ontario Court Requires Notice to Non-Parties Whose Privacy Interests at Stake in Production Dispute

25 Aug

On August 15th, the Ontario Superior Court of Justice deferred a motion for production of medical records so two non-parties could be given notice of the production motion.

The action was by a patient of a psychiatric facility who was allegedly assaulted by two other patients. The facility resisted production of records in its custody based on a concern for the privacy of the non-parties, but also did not dispute the records’ relevance.

Mr. Justice Ricchetti ordered production of occurrence reports that recorded facts pertaining to the alleged assaults without requiring notice. Ricchetti J. suggested that the records contained information that was as much about the plaintiff as the two non-parties. He also recognized the occurrence reports were not about the provision of care though they were placed in both of the non-parties’ patient records. Though these factors led him to order production without notice to the non-parties, Ricchetti J. did order the non-parties’ attending physicians to be given notice and an opportunity to object based on criteria for doing so set out in the Mental Health Act, ordered redaction of names and identifying information and ordered receiving counsel to safeguard copies of all information received.

Regarding production of other medical records, Ricchetti J. ordered that notice be given to the affected non-parties. He said:

Rule 30.10 of the Rules of Civil Procedure requires that any motion seeking third party disclosure be on notice to the third party. The real third party in this case are the patients. The purpose of this rule is to ensure that the party whose documentation is to be disclosed has an opportunity to object or consent or request some limitation on the disclosure. This purpose, in my view, is defeated if the “real” owner or person with the “real” interest in the disclosure of the documentation or information is not given notice.

I cannot imagine why a request for disclosure of the patient’s medical records containing PHI should not be on notice to the patient. It is the patient’s PHI, protected by the PHIPA, that disclosure is sought.

…

In my view, where an order is sought under s.41(1)(d) of the PHIPA or s.35(5) of the MHA, such an order should be obtained, if at all possible, on notice to the patient whose record is sought and not just the custodian of the patient’s medical records containing the PHI.

This is a sensible application of the power over procedure. Note, however, that health information custodians are authorized under PHIPA to disclose personal health information for the purpose of providing production without any notification requirement. Is notification “if at all possible” in the event of dispute too conservative and too costly? Should courts require health information custodians (who are accountable to privacy regulators under statute) to attempt to negotiate a reasonable scope of production and reasonable protective terms before stepping in? These are important questions that are yet to be answered.

M.L. v. Homewood Health Centre Inc. et al, 2011 ONSC 4790 (CanLII).

Social Media Risks and Rewards at AMO 2011

24 Aug

I presented yesterday at the Association of Municipalities of Ontario conference with Brian Lambie of Redbrick Communications. Brian gave great practical insight on the messaging municipalities should strive for in their social media initiatives and I discussed the kind of control structures that are necessary for reaping the benefits of social media without excessive risk.

This wasn’t new content for me, but the audience – about 70% elected officials – was. This led to a rewarding Q&A.

A Kingston councilor noted that Kingston has adopted a “no handhelds in council rule,” a concept that received endorsement from another councilor in the audience despite his acknowledgement that the pressure to deal with handheld communications in long meetings can be significant. I tied the rule back to a council’s interest in decorum, transparent dealing and perceived transparent dealing.

A mayor of a different Ontario municipality raised a good question on creating separate social media profiles for use in support of election campaigns. Although an incumbent councilor’s legal status does not formally change into and out of campaign periods, strict campaign finance requirements may justify completely separating communications made in the capacity of office holder from communications made in support of a campaign. This is a good issue that I was not aware of prior to His Worship’s input.

Thank you to AMO and to Brian and his staff, who created the slides below. I’ve also linked to the State of Victoria’s wonderful social media awareness video, an example I used to make the point that municipalities might want to lead with an internal communication campaign rather than a “policy heavy” approach.

Ontario Court of Appeal Relieves Media of Elevated Costs Order in Privacy Dispute

18 Aug

The Ontario Court of Appeal reduced a full indemnity costs award made against the Toronto Star on Tuesday. The motion judge made the extraordinary costs award against the Star because it was a “media giant” that had unsuccessfully taken on an individual who was trying to protect his personal privacy. The Court of Appeal held that the Star’s action in seeking to publish potentially embarrassing personal information about the individual was not conduct worthy of sanction even though it affirmed a finding that the the Star was motivated, in part, by its private interests. Though notable to readers of this blog, given how it was handled this case is arguably more about the exceptional character of elevated costs orders than about media rights and privacy.

Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555 (CanLII).

E-Discovery, Production and Non-Party Privacy

17 Aug

I presented at the Canadian Bar Association Legal Conference and Expo on Tuesday on “e-discovery, production and non-party privacy.”

I started by stating that:

  • the litigator’s role is to help the trier of fact uncover the truth;
  • the litigator takes information and uses it as evidence to do so; and
  • it is essential to the administration of justice that this use of information be unfettered.

That stated, I asked the audience to not to lambaste me for preaching that litigators ought to take steps to protect privacy in going about their work. From presenting and from listening to co-panelist Patricia Kosseim launch the OPC’s new “PIPEDA and Your Practice” handbook for lawyers it is clear to me that many of the privacy issues facing litigators have little to do with litigation and civil procedure itself.

My slides are below.

IPC/Ontario says personal information received on an unsolicited basis is not “collected”

14 Aug

The Information and Privacy Commissioner/Ontario issued a notable privacy investigation report on July 8th. It held that a municipality did not “collect” personal information under MFIPPA by receiving unsolicited correspondence. Investigator Ratner said:

I have considered the City’s position. Sections 31 and 32 of the Act both make reference to personal information having been “obtained or compiled” by an institution. In my view, in drafting the Act, the legislature intended the meaning of the term “obtained or compiled” to be different from the term “collect,” which is employed in section 28. Had the legislature intended sections 31 and 32 to only apply to personal information that is collected, it would have used that terminology in those sections.

I note that personal information may come into the custody or control of an institution in a variety of circumstances: it may be actively solicited, it may be passively received, or it may be created by the institution. In my view, the term “obtained or compiled” is intentionally broad, and is intended to accommodate the various ways in which an institution may acquire personal information. This analysis supports the notion that the term “collect” is intended to be interpreted narrowly so as not to apply to situations such as this where correspondence is sent to institutions voluntarily and without solicitation.

Vaughan (City) (Re), 2011 CanLII 47522 (ON IPC).

Court Directs Employer to Give Former Employee Access to E-Mails for Privilege Review

12 Aug

On June 29th, Justice Moir of the Supreme Court of Nova Scotia directed a means by which parties to a wrongful dismissal action could deal with privileged communications sent and received by the plaintiff on his former employers’ work system. He directed a review by the plaintiff and his counsel, either at the defendant counsel’s office or elsewhere with an undertaking by plaintiff’s counsel not to make copies.

Justice Moir’s order also includes a thorough discussion about the discovery of facts obtained by a witness in a communication that is subject to litigation privilege.

Hat tip to Peg Duncan!

Saturley v. CIBC World Markets Inc., 2011 NSSC 310.

Federal Court Upholds Pension Regulator’s Refusal to Order Disclosure of Member Information

11 Aug

On July 21, 2011, the Federal Court released a decision in a long running pension fight.  The applicants in Buschau v. Rogers Communications Inc., 2011 FC 911 have been pursuing access to the surplus in their pension plan since 1995.  This decision has been to every level of Court, and sometimes twice.  Most recently, the applicants requested that the Federal Superintendent of Financial Institutions (the “Superintendent”) order that Rogers be required to disclose the following information:

  • the employment and pension data of any new members it proposes to add to the Pension Plan…
  •  the information Rogers has, or should have, as to which members of the Pension Plan it has offered a “buy-out”, the value of such “buy-out” and the members’ acceptance or rejection of such offers…

The applicants purported to require this information to be able to identify potential new members of the Pension Plan to inform them of Rogers’ past actions allegedly taken in bad faith (notwithstanding existing decisions indicating that Rogers has been acting in compliance with legislative requirements) and to determine what happened to any applicable surplus relating to members who accepted a buy-out.

The Superintendent refused to order the disclosure.  The Superintendent determined that the Pension Benefits Standards Act, 1985 (“PBSA”) (the legislation governing the Pension Plan), specifically section 28 and the associated Regulations, set out Rogers’ disclosure requirements and the requested information did not fall within the legislative requirement.  The Superintendent also indicated that Rogers’ was obliged to comply with the provisions of the Personal Information Protection and Electronic Documents Act.  The applicants sought judicial review of the Superintendent’s decision.

The Federal Court agreed with the Superintendent’s determination and found that she decision was reasonable.  Of particular note for plan administrators facing disclosure requests from members, the Federal Court stated the following:

[100]      I find that the Superintendent’s decision in this regard was reasonable. Section 28 of the PBSA sets out the members’ “Rights to Information”. It also indicates that the plan members are entitled to certain information as set out in the Pension Benefits Standards Regulations, 1985, SOR/87-19 [Regulations]. Neither section 28 of the PBSA nor the associated Regulations mandate that the respondent, in the current circumstances, is obligated to disclose the type of information that the applicants are seeking.

This decision is one of the first examining the scope of a plan administrator’s disclosure obligations under the Federal pension legislation.  Plan administrators will likely take comfort in the finding that their disclosure obligations are limited to the specified documents (such as plan texts, amendments, trust agreements, valuation reports, financial statements) and there is no obligation to disclose information outside of the scope of the PBSA requirements if requested to do so by other members.

Ontario Arbitrator Okays Collection of Driver’s License Numbers for Driving Safety Program

10 Aug

On May 11th Arbitrator David McKee held that an employer could collect driver’s license numbers to check the driving records of employees who drive personal vehicles in the course of their duties.

Arbitrator McKee had previously allowed the employer to conduct driving record checks on employees who drive company owned vehicles. In this decision, he holds that it is reasonable to conduct the same check on employees who drive personal vehicles in the course of their duties (and who are reimbursed by the employer for doing so) regardless of the extent to which they actually drive. Arbitrator McKee bases his conclusion on a contextual balancing of interests that stresses the following factors:

  • the information at issue (the DL number and information in the driving record) is “not extraordinarily sensitive”
  • the employer had taken steps to protect employee privacy in administering the program (i.e., by using an external service provider to conduct the check and only receiving driving record information for a class of “high risk” drivers)
  • the employer established a legitimate, albeit general, interest in promoting safe driving and a safety-conscious public image
  • the employer did not discipline employees with bad driving records but, rather, used the information to mitigate risk through training and management

Arbitrator McKee’s approach is pragmatic. Citing Justice Whitaker’s recent Jones v. Tsige decision, he says, “There is no legal doctrine that gives a particular weight or priority to everything that can be characterized as a privacy right.”

Union Gas Ltd. v. C.E.P., 2011 CarswellOnt 7295.

Ontario Court Says Open Court Principle Applies to Record Filed Before Charges Withdrawn

6 Aug

On July 18th the Ontario Court of Justice granted several media organizations access to a DVD that a criminal defendant filed before charges against her were withdrawn by the Crown. Justice Wake explained that the open court principle can apply to records that are not considered in a judicial proceeding if public access would support a greater understanding of the administration of justice.

The Crown charged the defendant with assault in relation to her interaction with the police. She received a “cellblock DVD” as part of the Crown disclosure, and filed it in furtherance of a stay application, though apparently it was not properly incorporated by reference into an affidavit. The Crown withdrew all charges after noting in open court that he had  reviewed evidence of the defendant’s treatment while in police cells.

Justice Wake’s analysis focused on whether the open court principle applied to the DVD. He first held that the irregularity in the manner of filing the DVD was too technical a basis for denying access. He then held that the open court principle applied to the DVD even though it was not considered in a judicial proceeding. He said:

Clearly Goudge, J.A. [in CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar)] drew a distinction between these two objectives and noted that in cases subsequent to MacIntyre “the court has made equally clear how important public access is to the second objective, the greater public understanding of the administration of justice”.

Relying on this analysis, I have concluded, with respect to the DVD, that public access to the workings of the courts and a greater understanding of the administration of justice does not necessarily require that the DVD have been considered in a judicial proceeding or have been subject to a judicial act. The DVD is directly related to a judicial proceeding. It was clearly the intention of Ms. Carr’s solicitor to have it filed for the use of the court and in support of her application to stay proceedings on the basis of what it disclosed. The fact that the Crown, Mr. Wadden, withdrew the charges after viewing what I can safely presume to have been a copy of the same DVD (otherwise the Ottawa Police Service would have produced one copy for the Crown and a different copy for disclosure purposes for the defence which would have been odd, ultimately discoverable and thus unlikely) makes the DVD a highly relevant item in these protracted proceedings.

Justice Wake stressed that he was not expanding the open court principle but, rather, applying it in novel circumstances. He stressed that the criminal proceeding had concluded, that DVD appeared to be “central” to the Crown’s decision to withdraw and that the proceeding (prior to withdrawal) had involved significant expenditure of court resources.

R. v. Global News, 2011 ONCJ 381.

Administrators Have No Place in the Bedrooms of Plan Members

5 Aug

When a pension plan member divorces his or her spouse, often the accrued pension benefits are the single largest family asset.  H0w a pension benefit is divided varies by jurisdiction, with some jurisdictions entitling the former spouse to all of the benefits accrued during the period of marriage.  What’s more is that some jurisdictions allow former spouses to “unlock” the divided interest prior to the member’s retirement, rather than requiring the monies to continue to be used only for pension benefits.

But what happens when a couple decides they want to access the accrued pension benefits and are willing to go through with a divorce to get access?  What if the couple just happens to reconcile shortly after the benefits have been transferred?  Can an administrator investigate and question the validity of the divorce?  Apparently not.

In 2009, Continental Airlines filed a lawsuit against nine of its pilots claiming that the pilots filed fake divorces in order to receive early distribution of their pension benefits.  Many of the pilots continued to cohabitate with their ex-spouses, and in many instances they did not inform any of their family or friends that they had gotten a divorce.  Continental sought restitution to the pension plan of the benefits that were distributed to the spouses on the basis that the divorces were “shams”.  The trial court dismissed Continental’s claim, holding that Continental did not have the right to investigate employees’ divorces in order to decide whether those divorces were authentic.

The 5th U.S. Circuit Court of Appeals recently dismissed Continental’s appeal of the lower court decision.  The Court of Appeal agreed with the lower court that the relevant legislation (ERISA) does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce.  On the contrary, the legislation requires benefits be divided in satisfaction of a qualifying marriage breakdown order that has met the necessary prescribed criteria, of which the divorce being done in good faith is not a factor.  Therefore, the administrator could not interfere by investigating the bona fides of the divorces.  Only where a court finds that a divorce is, in fact, a sham could an administrator refuse to pay out the divided pension.

Counsel for the pilots are championing the decision as a victory for employee privacy rights, given the restrictions on administrator’s abilities to investigate plan members’ family relationships.

Follow

Get every new post delivered to your Inbox.