This is not the first time this duty to document has been proposed. In March of this year the British Columbia Office of the Information & Privacy Commissioner also endorsed a duty to document. The BC report includes a good history of efforts made to advance the duty in Canada, efforts that date back to 1994 in the BC Commissioner’s account. The BC Commissioner also notes a federal private member’s bill – Bill C-301 - that features a duty to document.

There are two variants of the duty that we should distinguish from each other – one that requires documentation of “actions, decision and reasons” and another that extends to “advice” and “deliberations.”

The BC Commissioner endorses the narrower version. In 2009, former BC Commissioner DavidLoukidelis argued for a duty to document “actions and decisions and reasons therefor” in a submission to the federal Standing Committee on Access to Information, Privacy and Ethics. The March report from BC contains the same recommendation:

I would reiterate that this requirement need not be an onerous one. The duty to record actions, decisions and reasons are not merely a question of creating records for the purposes of openness and accountability, but also go to good governance, the state of information management and information holdings of government.

Bill C-301 features the broader version. Here’s the language:

2.1 Every officer and employee of a government institution shall create such records as are reasonably necessary to document their decisions, actions, advice, recommendations and deliberations under this Act.

The recent IPC report is ambiguous, and unfortunately, suggests that the BC Commissioner has embraced a duty to document deliberations:

Commissioner Denham notes [in her March report] that a number of Information Commissioners have called for the creation of a legislated duty for institutions to document matters related to deliberations, actions and decisions. Commissioner Denham stated:

Among the reasons for instituting a legislated duty to document include good governance, historical legacy of government decisions, and the protection of privacy and access to information rights. Without a legislated duty to document, government can effectively avoid public scrutiny of the rationale for its actions.

She goes on to note that the legislated duty to document is a critical element of the open government movement and an important element of proactive disclosure.

The underlined statement above is correct but misleading; the BC Commissioner did note that others have endorsed a duty to record deliberations but did not do so herself.

The distinction between the broader and narrower versions of the duty to document is one that should become part of the public dialogue, especially because a duty to record deliberations runs against advice that counsel (including this counsel) regularly give public sector institutions; do not think aloud over e-mail.

Deliberating via e-mail (or text message) is a terrible decision-making practice that has only been invited recently by changes in communication technology. The dialogue invited by such a practice will either be too stilted to be effective or too dangerous because every creative, bona fide and ultimately un-pursued idea will be available in the end to undermine a final decision.

Yes, meetings represent a more private decision-making venue, but that is why they support good decision making. Public sector officials should record the actions flowing from meetings along with all decisions made and their rationale. This is, agreed, a matter of good governance. They should also be given the continued ability to discuss matters in confidence.

Whether a duty to document should encompass “advice” also deserves debate. It may not be objectionable if it is decipherable from a duty to document deliberations. Notably, the degree to which the exemption for “advice and recommendations” under our freedom of information legislation protects the deliberative aspects of decision-making will be addressed in an important Supreme Court of Canada case to be heard this November. The Ontario Commissioner will be joined by four other commissioners in arguing for a narrow interpretation of the exemption so that recorded deliberations will be more accessible to the public. If they succeed, public officials will face greater pressure to engage in verbal dialogue. They should not be castigated for craving a zone of privacy.

Justice Perell dismissed the defendant’s argument that a corporation could not be a “health information custodian” under the Personal Health Information Protection Act and held that the plaintiff clinic had made out a strong prima facie case that it had such status. His suggestion that the defendant was also a health information custodian could best be understood as a function of the qualified burden of proof on an interlocutory motion given, under PHIPA, there can be only one custodian of a record of personal health information.

Justice Perell’s balance of convenience analysis is noteworthy. He said the following about the public interest in providing patients with access to their personal health information pending final resolution of the dispute:

In considering the balance of convenience, it is appropriate to consider the interests of the patients whose health records have been removed from a health clinic to the home of a health care practitioner. In my opinion, a patient will have better access to his or her health records and the health care practitioner who will treat the patient during Dr. Simon’s semi-retirement will have better access to the health records if the records are at professional offices with normal business hours and full-time staff.

A plaintiff in a similar situation could similarly attempt to make a case for return of records based on a claim to relatively superior security measures, though the stakes of pursuing such an approach would be high.

Note that the plaintiff consented to a term permitting the defendant doctor to make copies of any file relating to a patient she had treated. This is a sensible thing to offer in a dispute over custodianship, but again, is inconsistent with the single custodian rule.

1615540 Ontario Inc. carrying on business as Healing Hands Message v Simon, 2013 ONSC 2986 (CanLII).

Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship.

The Court distinguished other orders in which contact information was provided to class action plaintiffs as not involving physician-patient confidentiality.

Logan v Hong, 2013 BCCA 249.

In Trillium Motor World the Court held that legal information (versus advice) conveyed from a firm to its client was not privileged. In short, my conclusion is that the decision is an outlier driven by a unique context and that in more ordinary circumstances a court will not (and should not) parse the subject matter of communications related to an ongoing retainer so delicately.

Yesterday’s post on Justice Stratas’s recent Canada (Public Safety and Emergency Preparedness) decision is another good one to read on this topic.

[28] In determining where the protected continuum ends, one good question is whether a communication forms “part of that necessary exchange of information of which the object is the giving of legal advice”: Balabel, supra at page 1048. If so, it is within the protected continuum. Put another way, does the disclosure of the communication have the potential to undercut the purpose behind the privilege – namely, the need for solicitors and their clients to freely and candidly exchange information and advice so that clients can know their true rights and obligations and act upon them?

[29] For example, where a Director of a government department receives legal advice on how certain proceedings should be conducted and the director so instructs those conducting proceedings, the instructions, essentially cribbed from the legal advice, form part of the continuum and are protected: Minister of Community and Social Services v. Cropley 2004 CanLII 11694 (ON SCDC), (2004), 70 O.R. (3d) 680 (Div. Ct.). Disclosing such a communication would undercut the ability of the director to freely and candidly seek legal advice.

[30] In some circumstances, however, the end products of legal advice do not fall within the continuum and are not privileged. For example, many organizations develop document management and document retention policies and circulate them to personnel within the organization. Often these are shaped by the advice of counsel. However, such policies are usually disclosed, without objection, because they do not form part of an exchange of information with the object of giving legal advice. Rather, they are operational in nature and relate to the conduct of the general business of the organization.

[31] Similarly, an organization might receive plenty of legal advice about how to draft a policy against sexual harassment in the workplace. But the operational implementation of that advice – the policy and its circulation to personnel within the organization for the purpose of ensuring the organization functions in an acceptable, professional and business-like manner – is not privileged, except to the extent that the policy communicates the very legal advice given by counsel.

The Court held that a protocol negotiated between the DOJ and  RCMP that dealt with the civil production of documents held by the RCMP was not privileged except for its first three paragraphs, which memorialized legal obligations for the benefit of DOJ and RCMP personnel working under the protocol.

Canada (Public Safety and Emergency Preparedness) v Information Commissioner of Canada, 2013 FCA 104 (CanLII).

…a closer review of the authorities reveals that arbitrators have distinguished between “use”, “abuse”, and “dependence/addiction”. Once the distinction between use and abuse in particular is recognized, the Union’s comparison to the casual consumption of alcohol away from the workplace is no longer compelling. The distinction was made in Hamilton Street Railway in these terms: “Use does not equate to abuse and it does not follow that because the grievor may use infrequently he will one day arrive at work impaired” (para. 33; emphasis added).

Although he upheld the random testing requirement, Arbitrator Hall ordered the employer to reduce testing frequency to quarterly from monthly and to limit testing to cannabis.

Spectra Energy Transmission – West and Communications, Energy and Paperworkers Union of Canada, Local 686b (29 November 2012, Hall).

If the third party’s retainer extends to a function which is essential to the existence or operation of the client-solicitor relationship, then the privilege should cover any communications which are in furtherance of that function and which meet the criteria for client-solicitor privilege. Examples given in Chrusz are psychiatrists who examine the client and accountants who examine the client’s books (¶116).

On the other hand (¶22), “[i]f the third party is authorized only to gather information from outside sources and pass it on to the solicitor so that the solicitor might advise the client, or if the third party is retained to act on legal instructions from the solicitor (presumably given after the client has instructed the solicitor), the third party’s function is not essential to the maintenance or operation of the client-solicitor relationship and should not be protected.”

Both of the paragraph references above are to the Ontario Court of Appeal decision in Chrusz.

Weinmann Electric Ltd v. Niagara Falls Bridge Commission, 2013 ONSC 2805 (CanLII).

The Court held that the collection does not interfere with a reasonable expectation of privacy given the context in which the (admittedly sensitive) information is collected – a context that includes statutory assurances of limited use and confidentiality. It explained:

Thus , the question is not whether Ms. Finley had an expectation of privacy or even a reasonable expectation of privacy in dictionary terms. The question must be linked to the overall context of the case. In this case, the question must be cast in these terms: whether a reasonable person would expect to have privacy in the information requested by the 2006 Long Form Census, which the government wishes to collect exclusively for statistical purposes to aid it in implementing sound and effective public policy, with no criminal or quasi – criminal repercussions flowing from the disclosure of such information, and with the specific information collected being ultimately generalized and “delinked” from the individuals being required to so disclose. The trial judge answered this critical question negatively and the summary conviction appeal court judge found no error of law, mixed fact and law or fact in her conclusion.

The Court did not address an argument by the Crown that section 8 is not engaged by merely asking someone to provide information, an argument rejected in each of the two lower court decisions that led to the appeal.

R v Finlay, 2013 SKCA 47.

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• “@IPCinfoprivacy: Canadian brokers demand answers on missing… data http://bit.ly/178qMsG ” Can’t notify when you’ve got nothing to say!
• “@MortonsMusings: Porter launches $4M libel lawsuit against union http://www.ctvnews.ca/business/porter-launches-4m-libel-lawsuit-against-union-1.1242440 … via @CTVNews”
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• “@MackenzieDRS: This Week at the SCC (12/04/2013) http://buff.ly/Zr8YDH  leave granted in case about mediation confidentiality”
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• Are law firms asleep at the cyber security switch?: http://wp.me/p1OhjK-HQ  via @timbwilbur
• BSSC: Er had cause to dismiss IT ee who accessed confidential file in another ee’s confidential folder w/o permission http://canlii.ca/t/fwsgt
• Craig Ball advocating for meaningful dialogue between counsel on discovery. Good one. http://bit.ly/ZaCOfD
• Concise article ON SCJ case about whether legal advice conveyed to physician is producible http://www.lawtimesnews.com/201304019709/Commentary/Personal-Injury-Law-Dupont-provides-little-comfort-on-protecting-legal-advice-from-disclosure?utm_source=responsys&utm_medium=email&utm_campaign=20130401_CLNewswire …
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• Security Lessons from the Big DDoS Attacks http://bit.ly/10j99Cg
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• Alberta court finds that grievance response is privileged http://wp.me/p6aAc-22X
• Another Credit Card Breach Lawsuit Fails – Willingham v. Global Payments http://blog.ericgoldman.org/archives/2013/03/plaintiffs_whos_1.htm …
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I’ve been posting less than I’d like to lately have a BIG pile of cases to catch up on. My apologies. I’ve been training very hard and getting ready for an event that I’ve always dreamed of doing and have finally committed to.The “M2O” is a 32 mile paddle race from Molokai to Oahu across the Ka’iwi Channel – the “channel of bones.” I’ll do it solo on a prone paddle board (paddling with my hands). The distance is not so bad, but the channel conditions are going to make the race very hard. My only goals is to finish with my dignity.

I’ve spent the last four months building some base and learning from paddlers in the community. At this point I’m extremely excited and feeling fit and positive, but the hard work is just starting. Forgive me for posting a bit about my progress here. I love the writing about the developing law, but the developing law is going to be competing for my attention for the next while!

Aloha,

Dan