SCC makes a modest point in favouring local court’s jurisdiction over privacy claim

25 Jun

On Friday the Supreme Court of Canada issued its decision in Douez v Facebook. A majority of the Court held that a forum selection clause in Facebook’s terms of use should not be enforced.

Douez is the plaintiff in a proposed class action that alleges Facebook breached the British Columbia Privacy Act by administering its “sponsored stories” advertising program – a program by which Facebook used the name and picture of Facebook members (allegedly without their knowledge) to advertise companies and products to other members on the site and externally. Facebook sought to stay the action based on a clause in its terms of use that stipulated disputes would be resolved in California.

A four judge majority of the Court held that the clause should not be enforced. Three judges in this majority (Karakatsanis, Wagner and Gascon JJ) held that the clause was valid according to contract law principles but, as a matter of policy, should not be enforced. They explained that the two dispostive factors were (1) the “gross inequality in bargaining power” between Douez (a consumer of online services) and Facebook and (2) the interest in local adjudication of privacy disputes – disputes that rest on “quasi-constitutional” rights. Justice Abella joined this group against enforcement of the clause, but held that the clause should not be enforced because it was unconscionable – issuing a broader critique of the means of contracting used by Facebook and most other online service providers.

While the Court did not enforce the contract, the plurality’s view is balanced – making a narrow point about where these types of privacy claims should be heard rather than a more disruptive and general point about the enforceability of online service terms of use.

Douez v. Facebook, Inc., 2017 SCC 33 (CanLII).

BCCA gives broad protection to e-mail communications with inside counsel

15 Jun

It is inappropriate to closely parse solicitor-client communications in assessing the scope of privilege; the entire “continuum of communications” must be protected. This is the principle articulated in a June 8th decision of the Court of Appeal for British Columbia.

The Court allowed the appeal of a chambers judge order to produce parts of a series of e-mails between a government lawyer and staff at an administrative tribunal. The content ordered to be produced included:

  • two paragraphs and two sentences of a ten paragraph advisory e-mail in which the chambers judge suggested the lawyer stepped beyond his role as legal advisor and impinged upon the tribunal’s decision-making authority;
  • a follow-up e-mail that the chambers judge held was not privileged for similar reasons; and
  • follow-up correspondence between (internal) clients discussing the lawyer’s advice.

The Court held that all this communication was part of the “continuum of communications” that supported the solicitor-client relationship and was therefore privileged. It held there was no basis for a finding that the lawyer usurped the tribunal’s decision making authority, also stating:

In my view, it is in the nature of legal advice that it may influence the decision-making of the client. The purpose of legal advice is normally to advise the client on the best course of action to comply with the relevant law. Advice provided to a statutory decision-maker as to what should be done in order to be legally defensible is still legal advice.

The dispute arose after the above communications were inadvertently disclosed in response to a freedom of information request made by a law firm. The receiving lawyer obtained the communications as part of a disclosure package in which government made a number of exemption claims. She believed government to have waived privileged and used the communications in a proceeding, which led government to assert its privilege claim and claim its disclosure was inadvertent. The Court held there was no waiver. It wasn’t highly critical of the receiving lawyer given these facts, but reminded lawyers of their duty to give notice when they receive communications that are apparently privileged.

British Columbia (Attorney General) v. Lee, 2017 BCCA 219 (CanLII).

Two presentations all about information

5 Apr

Here are two recent presentations that may be relevant to you – one on finding internet evidence that I presented last Saturday at our firm’s PD day and another from a few days earlier on privacy, data security and CASL compliance at financial services firms. If you work in management and something catches your eye that raises questions do get in touch.

 

Why your author has been quiet of late

5 Apr

I’m not one to apologize for not blogging enough! This blog has been a labour of love since 1997 and has always been about my own need for exploration, learning and expression.

I’m happy, though, to explain that I’ve been busy with practice and also side tracked by some big adventures with my maturing family – most involving the ocean and a paddleboard or surfboard.  Here’s a video from last month’s adventure – one involving a 22 mile paddle (prone) to Catalina Island (off of LA), running the Catalina Marathon the next day and then paddling 22 miles back. I’ve never had a nature experience quite like the one we had paddling over (as you’ll see). With all the craziness in the world there still is plenty for which to be grateful.

Best regards and thank you for reading.

Dan

The Australian “Ben Grubb” decision and its link to Canada

24 Jan

There’s been some talk about the Federal Court of Australia’s recent decision in the “Ben Grubb” case – Mr. Grubb being the journalist who requested and was denied access to certain data related to his mobile phone usage from his carrier. Although the data was linked to Mr. Grubb’s mobile phone usage, the Court held it was not “information about” Mr. Grubb and therefore was not “personal information” that Mr. Grubb could access under the Australia Privacy Act. The Court explained:

…in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual. This will require an evaluative conclusion, depending upon the facts of any individual case, just as a determination of whether the identity can reasonably be ascertained will require an evaluative conclusion.

In some instances the evaluative conclusion will not be difficult. For example, although information was provided to Mr Grubb about the colour of his mobile phone and his network
type (3G), we do not consider that that information, by itself or together with other information, was about him. In other instances, the conclusion might be more difficult. Further, whether information is “about an individual” might depend upon the breadth that is given to the expression “from the information or opinion”. In other words, the more loose the
causal connection required by the word “from”, the greater the amount of information which could potentially be “personal information” and the more likely it will be that the words
“about an individual” will exclude some of that information from National Privacy Principle 6.1

In other words, there must be more than a link between information and an individual for the information to be “personal” information. The information must also reveal something “about” the person in a way that engages a reasonable expectation of privacy. I am not sure whether this “guts” the rights provided by the Australia Privacy Act as reported, but this reasoning has been a feature of Canadian law, most notably supported in our Federal Court of Appeal’s Nav Canada case – an authority the Australian court relied upon in determining the outcome of Mr. Grubb’s access request.

Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 (19 January 2017).

ONSC awards $15,000 in privacy damages

15 Jan

On December 12th of last year, Justice Fragomeni of the Ontario Superior Court of Justice ordered a man to pay $15,000 in damages to his estranged spouse for surreptitiously installing a camera in a bathroom (prior to separation) to take photos “for a couple of days.” There’s little analysis about liability. Here are the damages factors listed by the Court:

1.   the nature of the intrusion. It took place in a bedroom and bathroom, places which are very private. The privacy interests of Sheth were significant.

2.   the intrusion takes place within a domestic relationship

3.   although Sheth was embarrassed and shocked at the intrusion no medical information was filed to support and establish an evidentiary basis to find any significant effect on Sheth’s health or welfare

4.   the conduct of Patel in lying about the intrusion at his Discovery and even attempting to blame Sheth herself for the camera being installed is extremely aggravating and demonstrates a lack of any insight into what he did as being wrong.

Note also that the photos recovered and tendered in evidence by the plaintiff did not show anything explicit.

Patel v Seth, 2016 ONSC 6964 (CanLII).

Newfoundland court says salary information not accessible to public

1 Jan

On December 22, the Newfoundland and Labrador Supreme Court (Trial Division ) held that the amount of taxable income earned by a Newfoundland public sector employee is not accessible under the Newfoundland Access to Information and Protection of Privacy Act

The analysis ought to have turned exclusively on the deeming provision embodied in section 40(2)(f), which reads as follows:

A disclosure of personal information is not an unreasonable invasion of a third-party’s privacy where… (f) the information is about a third party’s position, functions or remuneration as an officer, employee or member of the public body or as a member of a Minister’s staff

This “deeming provision” is intended to foster transparency regarding public sector employment and compensation. The word “remuneration” is used in contrast to the phrase “salary range” that appears in other provinces’ access and privacy statutes – an indication that the Newfoundland legislature intended information about the specific salary earned by every public sector employee to be accessible to the public. This intent is consistent with a recommendation made by a legislative committee, which stated “The Committee concludes it is unfair to single out employees at any particular income level, and recommends that salaries and benefits of all employees a public bodies be subject to disclosure.” The language of the statute and the legislative context therefore strongly suggest that the Newfoundland legislature chose against a “sunshine list” model of public sector salary disclosure that requires proactive disclosure of salaries over a threshold amount  and, instead, created a broad right of access to specific salary information upon request. 

The Court failed to grasp this text and context and accepted an argument that the above deeming provision does not apply because does not specify that it precludes the disclosure of remuneration information together with an individual’s name. It ought to have accepted the Government’s and the Privacy Commissioner’s argument that such specification is unnecessary given the function of the deeming provision. This decision should be appealed.

NLTA v Newfoundland and Labrador English School District, 2016 NLTD(G) 211.