Saskatchewan health authority criticized for slow incident response

26 Aug

Good incident response involves nailing your timing – not going too fast or too slow. 

On August 17th the Saskstchewan Information and Privacy Commissioner held that a health authority breached the Saskatchewan Health Information Privacy Act by failing to respond to an incident in a timely manner. 

The Commissioner’s report does describe a dilatory response – with a discovery of “snooping” in mid October 2015, an investigation that led to a paid suspension at the end of January 2016, notification to the Commissioner at the end of February 2016, notification to the Commissioner towards the end of March that the breach was bigger than first reported and eventual notification to affected individuals in July 2016. 

Think and don’t react, and you can even pause to momentarily to gain confidence in a next critical step, but always keep the ball moving.

Investigation Report 030-2016 (17 August 2016, Sask OIPC).  

Arbitrator awards nominal damages for unwarranted breathalyser test

21 Aug

On June 25th Arbiator Surdykowski awarded $200 in damages to an employee who underwent an unwarranted breathalyser test following a safety incident. The employer administered the test based on a mistaken belief that it was required by policy even though there was no basis for believing the employee was intoxicated. The employee suffered no particular harm.

Compass Minerals Canada Corp. and Unifor, Local 16-O (Walden), Re (June 25, 2016, George T. Surdykowski Member, Ontario Arbitration) 127 C.L.A.S. 286.

BCSC orders voyeur to pay $85,000 in privacy damages

2 Aug

On May 3rd, the Supreme Court of British Columbia ordered $85,000 in damages to be paid to a young woman whose stepfather surreptitiously recorded her while she was undressed in her bathroom and bedroom.

The damages finding was driven significantly by the “thoroughly undignified and humiliating actions” of the defendant, the age of the defendant and proof that the defendant’s actions caused a significant psychological disorder that the plaintiff was still recovering from at the time of trial (which was four years after discovering the defendant’s wrong). The plaintiff was recovering, the judge also noted, as well as noting that the defendant conducted his defence with “appropriate restraint.”

The judge did not consider evidence that the plaintiff was herself provocative in his damages assessment:

The evidence establishes that the plaintiff was a confident and happy young woman. She had a strong sense of self-esteem and probably was proud of her body. She was perfectly entitled to choose what she showed of her body — and to whom, how, and when.

The Court also ordered damages to be paid for past loss of earning capacity, the cost of medication taken and health care received and the cost of future care.

T.K.L. v. T.M.P., 2016 BCSC 789 (CanLII).

IPC comments on use and disclosure of OSR in litigation

1 Aug

On June 15th, the Information and Privacy/Commissioner Ontario dismissed a privacy complaint that alleged a school board breached the Education Act and MFIPPA by producing a student’s OSR in response to his human rights application.

The Board produced the OSR and filed it in a brief of documents to be used at a pending Human Rights Tribunal of Ontario hearing, all pursuant to the Tribunal’s rules. The complainant objected, and in a preliminary hearing, the HRTO directed the complainant to consent or face dismissal of his application. The complainant did not consent, his application was dismissed and he subsequently filed a privacy complaint with the IPC.

The IPC held that MFIPPA prevails over the statutory privilege provision in the Education Act and that the IPC is therefore “not bound to consider section 266 of the Education Act in its deliberations.” It also held that the OSR was information “otherwise available” to the Board and therefore open to its use under the provision of MFIPPA that stipulates that MFIPPA “does not impose any limitation on the information otherwise available by law to a party to litigation.”

The IPC did recommend that, going forward, the Board refrain from unilaterally handling the OSR when its potential use and disclosure is in dispute: “… the Board should make efforts to seek direction from an administrative tribunal or court prior to disclosing the information contained within an Ontario School Record during the course of litigation.”

 York Region District School Board (Re), 2016 CanLII 37587 (ON IPC).


Ont CA addresses inadvertent disclosures and privilege waiver

31 Jul

On July 15th, the Court of Appeal for Ontario said the following about when an inadvertent disclosure of a solicitor-client communication will result in the waiver of privilege:

Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:

  • The way in which the documents came to be released;
  • Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
  • The timing of the discovery of the disclosure;
  • The timing of the application;
  • The number and nature of the third parties who have become aware of the documents;
  • Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and
  • The impact on the fairness, both actual or perceived, of the processes of the court.

See Airst v. Airst (1998), 1998 CanLII 14647 (ON SC), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and Chapelstone Developments Inc. v. Canada, 2005 NBCA 96 (CanLII), 191 C.C.C. (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.

In the circumstances, the Court held that a party had not inadvertently waived privilege. The disclosure, however, was not without a consequence. The Court said, “This is not a case for costs, given that the issue arose as a result of the moving party’s own counsel’s error.”

R v Ward, 2016 ONCA 568 (CanLII).

Ont CA addresses privilege in communicating a sex assault allegation

31 Jul

On July 20th, the Court of Appeal for Ontario allowed an appeal of a civil sexual assault finding and, at the same, time awarded defamation damages to the party alleged to have committed the assault.

The matter dealt with assault and sexual assault claims brought by a sister against her older brother. She alleged the assaults occurred many years ago, the action being commenced based on “recovered memory.” Before the sister commenced her claim, she came out with the allegations in an e-mail to her brother, his wife and children, her two sisters and their families, her daughters and a woman she had been friends with in high school. She then sent similar communications to the same group as well as to her own lawyer and a lawyer involved in the administration of her mother’s estate.

The Court held that communication to the family members and lawyers was subject to qualified privilege but communication to the friend was not. The privilege in communicating with the family members was rooted in the sister’s need to “prevent future abuse or seek out emotional support” and the recipient’s reciprocal interest in deciding whether to take “protective action.” The privilege in communicating with the lawyers appears to be rooted in the nature of their retainers. Regarding the friend, the Court said:

However, there was no duty or interest on the part of the respondent’s former high school friend to receive the respondent’s communications. The respondent admitted that their friendship did not last after high school had ended and that they only briefly reconnected after the death of the respondent’s mother.  She did not testify as to her reason for copying the friend on the defamatory emails. There was no evidence that she asked her friend for assistance or advice, or that the friend ever responded to her communications. In these circumstances, there was no legitimate interest to be protected by the statements; as a result, they did not merit protection under the auspices of qualified privilege:  R.T.C. Engineering, at para. 15; Milgaard v. Mitchell (1996), 1996 CanLII 6950 (SK QB), 151 Sask. R. 100 (Q.B.), at para. 36.

Assault and sexual assault survivors can describe their allegations in seeking assistance and pursuing complaints, but may be liable for communicating their allegations too broadly. This finding gives fairly permissive scope to the (protective) qualified privilege doctrine, but also illustrates that its protection is has limits.

The Court also made a finding about the use of opinion evidence for the purpose of assessing credibility. This use of evidence is impermissible as “oath helping” and, in this case, rendered the trial judge’s sexual assault finding erroneous.

Whitfield v Whitfield, 2016 ONCA 581 (CanLII).

BCSC dismisses privacy claim against lawyer

28 Jul

On July 26th, the Supreme Court of British Columbia dismissed a claim against a lawyer based in part on his service of application materials and based in part his conveyance of information about the plaintiff in a casual conversation with another lawyer.

The application that became the subject of the claim was made in an earlier family law proceeding. It was for production of financial documentation from the plaintiff relating to seven companies in which he had an interest.

The defendant represented the plaintiff’s wife. He served the companies with application materials (a notice plus affidavit) without redaction and in an unsealed envelope. Apparently his process server left the materials with two unrelated companies in an attempt to affect service.

The Court dismissed this claim because the lawyer was at all times acting as counsel in furtherance of his client’s interest and was protected by absolute privilege. Justice Griffin commented favorably on the lawyer’s conduct in any event, declining to give effect to the plaintiff’s argument about the need for redaction and sealed envelopes and giving wide berth to counsel’s judgement. She said:

As a matter of ethics, professionalism and good practice generally, I do agree that lawyers should consider the privacy of litigants and not unnecessarily reveal the private information of the opposite party nor should they seek to embarrass the opposite party… But that does not mean that an action lies for a lawyer’s steps in the conduct of litigation if the opposite party does not like how the lawyer exercised his or her judgment in bringing and serving applications which disclose private information.

The “casual conversation claim” arose from a discussion the lawyer had with another lawyer during a break in discovery in another case. The lawyer said he represented a woman whose former husband had sold a business in Alberta for $15 million and that the couple had three young children. Another person who was present came to believe the lawyer was speaking about the defendant.

The Court dismissed the claim because the plaintiff had not proven the fact of $15 million sale was private. More notable is Justice Wilson’s obiter finding that the lawyer’s disclosure was not “wilful” because he could not reasonably have expected the plaintiff to be identified. She said:

I have found the question of whether Mr. Lessing was wilful in violating Mr. Duncan’s privacy to be a difficult one. On balance, however, because the information he stated was very innocuous; he did not reveal names of the persons or the companies; and there is no evidence that he ought to have known someone in the room would know Mr. Duncan, I find that it cannot be said that he “knew or should have known” that what he said would breach Mr. Duncan’s privacy. I therefore find that if Mr. Lessing did breach Mr. Duncan’s privacy it was not a wilful violation of privacy within the meaning of the Privacy Act.

Duncan v Lessing, 2016 BCSC 1386 (CanLII).


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