IPC decides on request for threat assessment records

22 Jul

On June 30th, the Information and Privacy Commissioner/Ontario issued an interim order regarding a request for records of a school board’s threat assessment process – a request made by the student who was the subject of the assessment. 

The IPC held that input given by student witnesses was exempt because its disclosure would constitute an unjustified invasion of privacy and that opinions expressed by members of the board’s threat assessment team were exempt because their disclosure could reasonably be expected to threaten the members’ safety. This is decision rests on the facts before the IPC in this case, though sets out a roadmap for shielding the most sensitive information in a threat assessment file.

The IPC decided to give notice to staff members before deciding whether information related to them (other than opinions) should be released. The matter continues. 

Toronto Catholic District School Board (Re), 2017 CanLII 45048 (ON IPC). 

No relief for victims of harassment – Ont CA

22 Jul

I’ve written here about the difficult position an employer/organization is placed in when its employees are harassed by “outsiders.” On July 20th the Court of Appeal for Ontario illustrated the difficulty by affirming a decision that denied relief from such harassment that a municipality (and its mayor) sought on behalf of the mayor, councillors and staff. The decision suggests that an employer’s duty to provide a safe and harassment free environment provides no basis for a civil remedy. 

Rainy River (Town) v. Olsen, 2017 ONCA 605.

Hint of compromise not necessary to shield meeting communications with settlement privilege

16 Jul

On July 6th, the Ontario Superior Court of Justice held that communications exchanged in a settlement meeting need not demonstrate “a hint of compromise ” to be subject to settlement privilege. Such a requirement would be inappropriate, the Court said, given the ebb and flow of a settlement meeting. Here are the key quotes:

In my view, where the communications in question are made in a meeting the purpose of which is to attempt to resolve a dispute, as opposed to through a written communication that may or may not be marked “without prejudice”, different considerations apply to the third requirement for settlement privilege. This is because a participant at such a meeting cannot be expected to calibrate the words chosen in each sentence spoken during an open, free-flowing and unscripted conversation to ensure that each sentence meets the three requirements for settlement privilege.

In my view, the communications at a meeting that is held for the purpose of attempting to settle a dispute, when considered after the fact, do not need to reveal a willingness by either side to compromise the litigious dispute in order for settlement privilege to be engaged. Even if the dispute is not resolved, and even if no offer of settlement is made during the meeting by one side, or by either side, if the first two requirements for settlement privilege are satisfied, then the communications at the meeting will be protected by settlement privilege if the purpose of the meeting was to attempt to effect a settlement of the dispute (unless an exception applies).

Singh v. Progressive Conservative Party of Ontario et al, 2017 ONSC 4168.

Limitation period does not toll with continued online publication – Ont CA

16 Jul

On July 7th the Court of Appeal for Ontario held that a limitation period for an online publication runs from the date of discovery despite continued online publication. It explained:

The appellant seeks to rely on an incorrect interpretation of the “multiple publication rule”. That concept provides that when an alleged libel is republished across different mediums, including the Internet, those republications are treated as distinct libels. In Shtaif, the court rejected the notion that the limitation period for a suit about an online magazine article starts to run when the plaintiff becomes aware of the printed version. This was the basis for the conflicting evidence on discoverability in Shtaif. This decision does not mean that each day of online publication grounds a new cause of action. The court in Vachon v. Canada Revenue Agency, 2015 ONSC 6096 (CanLII), expressly rejected this interpretation of Shtaif. I concur with Hackland J., who said, at para. 22:

The plaintiff argues that the alleged defamation should be taken as having been republished every day [while it] remained accessible on the internet … Shtaif does not support that proposition … any limitation period based on discoverability will run from the point where the internet defamation is discovered.

The time by which the plaintiff must give notice under s. 5(1) and bring his action under s. 6 begins to run when the libel has come to the knowledge of the person defamed. There is no dispute here that, on December 5, 2013, when the appellant submitted the “factual error” message, he was aware of the facts on which his cause of action might be founded. He was aware of the statements, took exception to them as inaccurate, and demanded a correction. The clock began to run on December 5, 2013, when the appellant knew that statements were made that might be considered libellous.

John v. Ballingall, 2017 ONCA 579 (CanLII).

Man CA gives broad protection to lawyers’ reporting letters

10 Jul

On June 29th, the Court of Appeal of Manitoba held that the law has evolved such that reporting letters in real estate transactions (though often primarily summarizing facts) should be presumptively subject to solicitor-client privilege. It said, “Such correspondence is the direct result of a lawyer providing legal advice or otherwise acting as a lawyer, is descriptive of the services provided by the lawyer and arises as a result of the solicitor-client relationship.” This represents a change in Manitoba law, though is consistent with case law in other jurisdictions, including Ontario. 

R v Douglas, 2017 MBCA 63 (CanLII).

Alberta CA demands greater scrutiny of privilege claim re internal investigation

8 Jul

On July 4th the Court of Appeal of Alberta held that a chambers judge erred by accepting a claim that all documents created or collected in the course of an internal investigation were privilege without conducting a record-by-record analysis.

Legal counsel for the company initiated the investigation after a workplace fatality and directed the investigation team to segregate the investigation documents and to endorse all material as privileged and confidential. Legal counsel later swore that the dominant purpose of the investigation was the contemplation of litigation, which the chambers judge said, “invariably and logically leads to the collateral finding that, within the context of Suncor’s internal investigation that was carried out in anticipation of litigation, the information and documents created and/or collected during the internal investigation with the dominant purpose that they would assist in the contemplated litigation, are integrally covered by litigation privilege.”

The Court of Appeal held that the chambers judge erred by not conducting an analysis about the reason for the creation of each record (or bundle of records). It explained that statements may have been taken, for example, under a standing workplace protocol or that surveillance video or business records may have been collected – and that neither kind of record would be the subject of a proper privilege claim.

Alberta v Suncor Inc, 2017 ABCA 221 (CanLII).

Court affirms IPC decision on doctor payments

6 Jul

On June 30th, the Divisional Court affirmed an Information and Privacy Commissioner/Ontario decision that the amounts billed to OHIP by top billing doctors did not constitute the doctors’ personal information.

The Court’s decision is a standard of review decision – i.e., one that accepts the IPC’s decision as reasonable. Notably, the Court was influenced by an argument made by the doctors that (pre-expense) billing amounts do not fairly represent personal income yet could be misconstrued as such by the public. The answer to such arguments is an easy one for most FOI adjudicators and courts: provide an explanation to the public if you think you’ll be misunderstood. The Court didn’t say that in this case, but noted that the doctors’ argument was supportive of the IPC decision that their billing amounts were not revealing enough to be personal information.

Otherwise, the Court made short work of the doctors’ attempts to impugn the IPC’s reasoning and an argument that the IPC procedure gave rise to a reasonable apprehension of bias.

Ontario Medical Association v Ontario (Information and Privacy Commissioner), 2017 ONSC 4090 (CanLII).