Archive | December, 2011

FCA says successful candidates’ employment history not accessible under ATIA

31 Dec

The Federal Court of Appeal has just published a decision it issued back in September in which it held that information submitted by successful applicants in federal public service job competitions is not accessible under the Access to Information Act.

Records containing the personal information of others are generally not accessible to the public under the ATIA. The issue in this case was whether information about candidates’ experience in other federal public service positions is accessible because such information is excluded from the definition of personal information based on section 3(j) of the Privacy Act. Section 3(j) deems that personal information does not include:

information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including (i) the fact that the individual is or was an officer or employee of the government institution, (ii) the title, business address and telephone number of the individual, (iii) the classification, salary range and responsibilities of the position held by the individual, (iv) the name of the individual on a document prepared by the individual in the course of employment, and (v) the personal opinions or views of the individual given in the course of employment

The Court held that section 3(j) applies to information about a federal public service position and that (in the context) employment history information and educational history information submitted by candidates is more about a person than about a position. The Court described the information as being “an individual’s personal assets” in the context.

Mr. Nault has filed an application for leave to appeal to the Supreme Court of Canada.

Hat tip to AMiNA.

Nault v. Canada (Public Works and Government Services), 2011 FCA 263.

BCCA dismisses appeal of successful claim for privacy breach

30 Dec

On December 12th the Court of Appeal for British Columbia dismissed an appeal of a November 2010 award of damages for defamation and breach of privacy.

The $40,000 award was based partly on a number of publications made by an ex-husband about his ex-wife that the British Columbia Supreme Court held were defamatory and unjustified. The Supreme Court also upheld a privacy claim based on the ex-husband’s use of e-mail communications he obtained from an old home computer and distributed for the purpose of scandalizing his ex-wife.

The Court of Appeal dismissed the appellant’s procedural grounds of appeal without comment on the merits.

Nesbitt v. Neufeld, 2011 BCCA 529 (CanLII).

Federal Court protects CJC’s “fact finder” report

24 Dec

On December 13th, the Federal Court held that a report prepared by Professor Martin Friedland to the chair of a judicial conduct committee was subject to solicitor-client privilege and therefore not to be filed in a judicial review of the Chairperson’s decision to dismiss a complaint.

Although Professor Friedland was retained under Canadian Judicial Council policy to make “further inquires” into a judicial conduct complaint – a fact-finding role in its essence – the Court held that his communication to the chair was best considered to be legal advice given Friedland’s status as a lawyer and the legal context for his communication. It said:

I agree with counsel for the CJC that for an investigator to be able to “attempt to clarify the allegations against the judge and gather evidence which, if established, would support or refute those allegations”, to quote from the Complaint Policy, he or she must know the legal elements of the specific allegations and of the notions of “judicial misconduct” and “incapacity” more broadly. In the case at bar, for example, Mr. Slansky alleged in his 16-page letter, bias, abuse of office, improper motive and knowingly acting contrary to the law. For the investigator to determine whether there is evidence that would support these allegations, he or she must be able to determine the materiality of the evidence. This is fundamentally a legal exercise, as it requires an assessment of whether there is a probative connection between the facts to be proved and the facts in issue as determined by the substantive law. Relevance and materiality are determined by the trier of law in a court proceeding, whereas the weight to be given to that evidence is for the trier of fact (Bryant, Lederman and Fuesrt, The Law of Evidence in Canada, pp 56-58, ss 2.49-2.50). Once again, it was essential for the investigator to be well versed in the principles of substantive law and evidence, to be in a position to assess whether the examples provided by Mr. Slansky in support of his complaint, amount to mere errors of law that are better left to an appeal court or whether they do raise, when considered in isolation or as a whole, the sort of concerns put forward by Mr. Slansky…

In light of the foregoing, therefore, I agree with CJC that counsel could only gather and examine relevant facts and present his or her findings and analysis through a legal framework or analysis. There is no doubt in my mind that Professor Friedland was retained by the CJC in his professional capacity as a lawyer, with the intention of providing assistance through his legal knowledge and analysis.

The Court also held that privilege applied to the entire report, making clear that the common law generally does not contemplate the severance and partial disclosure of a privileged communication. The Court also held that Professor Friedland’s report was subject to public interest privilege given the special need to encourage full and frank participation in the investigation process.

Slansky v. Canada (Attorney General), 2011 FC 1467.

Follow

Get every new post delivered to your Inbox.