Author: Dan Michaluk

Case Report – Alberta Court upholds site access drug testing decision

Last November 26th, the Alberta Court of Queen’s Bench dismissed a judicial review application which sought to quash an arbitrator’s endorsement of a site-access testing policy brought in by an Alberta construction site owner.

Petro Canada implemented a site access drug and alcohol testing rule at an Oil Sands construction site in 2004. It required Bantrel (the employer) to apply the policy to its employees who were already on site. The drug test to be conducted was not a “current impairment test,” but it gave employees two months’ notice so they could refrain from drug use and pass a test. Most or all of the employer’s available work was on the Petro Canada site, so employees who refused or failed the test were laid off with or without accommodation as appropriate.

In March 2007, an arbitration board chaired by Arbitrator Phyllis Smith held the employer had implemented a reasonable work rule. She reasoned that an employer that imposes a work rule based on a third-party requirement must still demonstrate that it is reasonable to enforce the third-party requirement. Despite this, she held that testing was reasonable in all the circumstances. Even though the employer was not testing for current impairment she held that site access testing implemented on two months’ notice was a reasonable risk management tactic:

The design of the policy insofar as it applied to current employees was such that it would only detect, through non-negative test results, the most significant risks to the workplace, namely persons who were either unwilling to or unable to give up drug use for any time at all.

Risk management was justifiable, she held, based on the nature of the work (undoubtedly safety sensitive) and based on general evidence of work-related drug use in the Alberta construction industry and general evidence supporting efficacy of testing over supervisory monitoring. Ms. Smith expressly held that the employer need not prove that it has a drug and alcohol problem to justify risk management testing (as opposed to current impairment testing).

Ms. Smith also held the employer had not violated the Alberta Human Rights, Citizenship and Multiculturalism Act. Although her analysis is not particularly probing, she appears to have held that site access testing is a BFOR based on the same general evidence supporting its reasonableness. She did note that employees were accommodated, with treatment where appropriate.

The Alberta Court of Queen’s Bench upheld both of these parts of Ms. Smith’s award as reasonable.

While notable, this case demonstrates a markedly different balancing of interests than displayed in recent Ontario arbitration awards, a point noted by Ms. Smith and again by the Court. It is also partly explained by Petro Canada’s broader, risk management purpose – a purpose given weight based on evidence of a broad challenge relating to drug use in the Alberta construction industry and a uniform adoption of site access testing by construction site owners. In Ontario, and perhaps elsewhere, site access drug testing should still be approached with substantial caution.

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2007 ABQB 721.

Information Roundup – February 10, 2008

A lazy February weekend. So lazy, in fact, that I’ve pledged to start running again. I used to be quite serious about running, but when Seanna blew by me with a pat on the bum going up the final hill at the 2004 Around the Bay Road Race, my broken ego caused me to pack the running shoes in for good. Full-on cold turkey. But what better way to motivate me to get back into it than to communicate my pledge to the whole web!!!

Here’s what’s caught my interest in the last couple of weeks.

  • Craig Ball, Gazing into the EDD Crystal Ball. Seventeen e-discovery predictions by a leading commentator. I’m most intrigued by, “Key-based encryption demarks and encapsulates privileged communications.” (Law.com)
  • Karim Faheem, Student Dispute Threatens Montclair State’s Paper. News story on an interesting governance and free press dispute at a U.S. college. Follow-up story here. (New York Times)
  • Mary-Rose Papandrea, Students shown drinking on Facebook banned from school activities. A blog post on a recent Minnesota case with one significant twist: the students signed a pledge not to drink as a condition of playing sports. (Citizen Media Law Project/Berkman Center for Internet & Society)
  • George Binks, The Big Log Off: Where do computer files go when you die? Seanna has a subscription to the Walrus. At the risk of offending millions and revealing myself a philistine, I catch myself remarking to her how “exciting” it is each month it arrives. This article caught my attention though, and the Walrus’s website tends to bring the content to life nicely. (The Walrus)
  • Pamela Pengelley, Confidentiality and Disclosure in Mediation: When the Chicken Won’t Talk. A good discussion of Rudd v. Trossacs Investments Inc. With humour! (The Advocate’s Quarterly, December 2007 Supplement)

The Advocate’s Quarterly supplement also has a great “Evidence Cheat Sheet” by Mr. Justice Paul Perell, basically a tabular display of all the relevant evidence rules and their exceptions. It’s a great concept, and got me thinking about information design – which Wikipedia says is “the art and science of preparing information so that it can be used by human beings with efficiency and effectiveness.” By using a simple meta-structure (the table), Perell J. communicates the rules of evidence in a form that would be usable in a hearing.

Synthesis and simplification are such an important part of advocacy, but more and more matters are so grossly complex that simplification and synthesis are limited techniques. Efficient communication by use of graphics holds a lot of potential for a profession that has traditionally relied on expert skill in communicating by the written and spoken word. There lies the limit though. If you look at some of the best things people are doing in information design, it really takes an artist’s eye. Maybe there’s a niche for trained lawyers with graphic design skills?

I’m interested, but don’t have the skill to produce more than a good table or flow chart. For those who want to learn more, Edward Tufte is an information design guru and just published a new book. Locally, my former business partners James Chisholm and Greg Warman at Experiencepoint (a business simulation company) are true pros. In law, I’ve heard Eugene Meehan of Lang Michener’s Supreme Court Practice group speak on the use of graphics in advocacy – he gives an inspiring presentation. I’ve also recently listened to a podcast by Professor Richard Sherwin of the New York Law School.

Enjoy!

    Case Report – FIPPA court award on “Branch 2 privilege” released

    On January 29th, the Divisional Court issued a FIPPA judicial review decision that dealt with multiple issues.

    • The Court held that records related to the Crown’s defence of a legal action based on actions taken by its employees were not excluded by the employment-related records exclusions.  It said, “Employment-related matters are separate and distinct from matters related to employees’ actions.”
    • The Court held that a letter from plaintiffs’ counsel to the Crown sent in the course of litigation was not “prepared for Crown counsel for use in litigation” and exempt under Branch 2 of section 19 (the so-called “statutory litigation privilege”).  
    • The Court held that the same letter, which included information provided by the Ministry in the course of litigation, was not exempt based on the implied undertaking rule.  It held the implied undertaking rule could not be read into section 19.
    • The Court questioned whether Branch 2 of section 19 protects any document copied simply copied for inclusion into the Crown brief, but did not answer its question because the records in question had qualified for the exemption based on the more rigid common law test from Nickmar:  the relevant records were compiled by research or the exercise of skill and knowledge on the part of the Crown.
    • The Court held that the IPC did not err by ordering disclosure of information with personal identifiers severed without considering whether information available to the press would cause individuals to be identifiable.  The Court suggested that the Ministry had a burden to adduce evidence of the facts within the press’ knowledge given that it was not otherwise obvious how individuals could be identified from the information disclosed. 
    • The Court ordered the IPC to reconsider the requester’s claim to the public interest override as applied to the records that were held to be exempt under section 19.  At the time, the IPC held that there was a compelling public interest in the disclosure of these records, but did not balance this public interest against the interest protected by 19 because it made its decision before the Ontario Court of Appeal read section 19 into to the override clause. 
    Although this is award is mainly of general interest, any Court decision on Branch 2 privilege is of significance given the uncertainties that remain regarding the scope of its application.
     

    Ontario’s workplace violence bill and its information sharing component

    Bill 29, An Act to amend the Occupational Health and Safety Act to protect workers from harassment and violence in the workplace, was introduced by a private member belonging to the NDP on December 13th of last year. It would amend the Occupational Health and Safety Act to require employers to protect workers from harassment and violence in the workplace whether perpetrated by employees, clients or other individuals the employer serves (e.g. students). This represents an expansion of the Ministry of Labour’s current jurisdiction, which has been held to be limited to addressing the threat of physical violence.

    Notably, in its current form, the Bill includes number of duties that are triggered when an employer has reason to believe that harassment or violence has occurred or is likely to occur, including specific duties to:

    • identify the source of the harassment or violence;
    • ensure that further harassment or violence is prevented or stopped;
    • where necessary, take steps to remove the source of the harassment or violence from the workplace; and,
    • contact law enforcement, where appropriate.

    As drafted, the Bill does not require routine threat surveillance as a measure to prevent harassment or violence.

    Similar bills have been introduced by NDP members in the past, but this Bill comes shortly after a Coroner’s Jury report into the death of, Lori Dupont, a nurse who was killed by her former boyfriend (also a resident physician) at a hospital in Windsor. The Coroner’s Jury report recommends changes to the Ontario Occupational Health and Safety Act. It also includes recommendations that stress the importance of information sharing, medical/behavioral monitoring, clear chains of command and decisive, risk-based decision making. Here is a copy of the report along with the Ontario Hospital Association’s media release.

    Case Report – NB court turfs broad challenge to PIPEDA interference with litigation

    On January 30th, the New Brunswick Court of Queen’s Bench held that the Federal Court was the appropriate forum for a very broad challenge to the Commissioner’s jurisdiction to investigate a PIPEDA complaint.

    The underlying PIPEDA complaint apparently alleged that the applicant, an insurance company, had conducted unlawful surveillance of a plaintiff in a motor vehicle claim. The insurance company asked the New Brunswick court for an order declaring that PIPEDA does not apply to “document disclosure, privilege or other privacy interests” of the plaintiff in relation to his lawsuit or the its defence of the lawsuit. Alternatively, the insurance company asked for an order declaring that PIPEDA is ultra vires the legislative authority of Parliament.

    This will be rather interesting if it proceeds in the Federal Court.

    State Farm v. Privacy Commissioner and AG of Can., 2008 NBQB 033.

    Case Report – Competition regulator’s production order set aside

    The Globe and Mail’s Law Page from this morning covers a January 31 decision of the Federal Court in which Madam Justice McTavish set aside a production order obtained by the Commissioner of Competition. She held the Commissioner, who obtained the order under section 11 of the Competition Act by way of an ex parte application, did not make a full and frank disclosure of material facts and made statements that bordered on misrepresentations.

    There were three specific bases for McTavish J.’s decision. First, she held that the Commissioner ought to have disclosed a statement it had made in a previous section 11 application that the order obtained on that application would likely be sufficient for its inquiry-related purposes. Second, she held that the Commissioner provided “misleading, inaccurate and incomplete” information on the extent of the overlap between the information it sought and information it already had. Third, she held that the Commissioner ought to have drawn the concerns brought to her attention by the respondent earlier in the year in response to a previous and similarly-broad production order in the same inquiry. Most notably, the respondent had complained that the previous order was so burdensome that its process of retrieving documents had caused its file server to crash and likely involved data restoration costs exceeding $500,000.

    The decision stresses the strict burden of disclosure on parties seeking ex parte orders for production, whether in the regulatory or civil context. The part about disclosing expressed concerns about the burden of retrieving electronic documents may apply in a limited number of situations because an ex parte process often starts the course of inquiry or investigation, but it is nonetheless significant given the broader challenges associated with managing the retrieval and production of electronic documents.

    The Globe also has commentary by Davies Ward lawyers John Bodrug and Anita Banicevic, linked here. This is part of a recent run of cases on transgressions by regulators related to the seizure of documents. See, for example, my coverage of the Nova Scotia Appeal’s recent decision on a Canada Revenue Agency search here and the Ontario Superior Court of Justice’s December 2007 decision on a Ministry of Labour search here. (Full reasons are still pending in the latter case.)

    The Commissioner of Competition v. Labatt Brewing Company Limited, 2008 FC 59.

    Case Report – No prejudice where information simply made to “lie about in the great wide world” (ABCA)

    On January 31, the Alberta Court of Appeal quashed a procedural appeal brought by a non-party to a longstanding commercial litigation dispute and, in doing so, made some comments on the use of information gathered in the discovery process.

    The non-party appealed from an order which granted the plaintiffs partial relief from the implied undertaking and a confidentiality order. The non-party claimed the order caused it prejudice in a second related action, presumably in which it was a defendant. The Court rejected the prejudice argument (emphasis in original):

    Since counsel for the appellant argued that he would be prejudiced if his client could not appeal, we went beyond mere status and inquired into the nature of the prejudice or injustice suggested. He seemed to think that the order under appeal put into evidence in the second suit against him, information gathered largely without his participation, even his knowledge, in the first suit.

    That suggestion of ex parte injustice is not correct. Both the implied undertaking restricting the use of information got through discovery, and confidentiality orders, merely add an extra impediment to attempts to use evidence for purposes outside the original lawsuit. If those impediments are removed, then the information in question simply has the same status as all other information lying about in the great wide world.

    The first rule of the law of evidence is that courts will not receive all information as evidence. Much of it is inadmissible: most hearsay, for example, and all irrelevant information. Therefore, waiving the implied undertaking rule, or lifting a confidentiality order, has no effect on such inadmissibility. What is inadmissible as evidence for other reasons other than confidentiality or implied undertakings remains inadmissible. To lift a confidentiality order or the implied undertaking merely allows the parties to another action to tender the information as evidence. It has no influence whatever on the judge or master’s decision about whether to accept it as evidence. The usual common-law rules of evidence (as modified by statute or Rules of Court) still apply.

    The Court also noted that the order appealed from gave the non-party an express right to raise the matter of fairness in the second action.

    Dreco Energy Services v. Wenzel Downhole Tools, 2008 ABCA 36 (CanLII).

    Case Report – Surdykowski speaks on medical forms for STD admin

    On October 5th of last year, Ontario Arbitrator Surdykowsky made some broad statements in upholding a grievance which challenged a standard medical information form administered for the purpose of adjudicating short term disability benefits.

    The form was administered by the employer’s third-party adjudicator in all applications for STD benefits. It included a consent to collect information from any “party” involved in treatment and requested, among other information, primary and secondary diagnoses, medical history, information on tests and investigations performed and specific information on program of treatment.

    Mr. Surdykowsky held that the standard for eligibility in the employer’s STD plans (there were two different ones at issue) did not justify collection of this information for the purpose of adjudication. One plan, for example, simply specified that employees must submit a satisfactory medical certificate showing an inability to perform regular job duties. Mr. Surdykowsky held that the employer was limited to asking for a certificate focused directly on the eligibility requirement unless there was an objectively reasonable basis for doubting the accuracy or truth of the health care provider’s certification.

    Mr. Sudykowsky also engaged in a very principled analysis of an employer’s right to medical information. He held that employee privacy rights cannot be outweighed by expediency or efficiency, so even though the collection of further and more detailed medical information may be justified as an absence becomes prolonged and attendance management and accommodation processes become engaged, such information should not be routinely collected at the beginning of an absence on a form that is administered strictly for the purpose of determining benefit eligibility. And while recognizing that broader requests for medical information up front may actually reduce conflict given that health professionals are not “always entirely objective,” Mr. Surdykowski held that employee privacy rights weigh against a departure from a strict necessity requirement.

    As part of his broad analysis, Mr. Surdykowski also endorsed the following general principles (in my words):

    • A union can bargain the scope of a medical information request form on behalf of its members. An individual may chose not to consent but may be denied benefits. An employer does not act coercively by informing an employee of the potential negative repercussions of failing to consent to disclosure of all information on the form.
    • When collecting information for the purpose of adjudicating short term disability benefits or approving a short term medical leave, employers are normally restricted to collecting a certification of disability, the general nature of the illness or injury (which is different from diagnostic information), that the employee has and is following a treatment plan (but not the plan itself), the expected return to work date, and what work the employee can or cannot do.
    • Medical consents should generally authorize disclosure from a specific health care provider. They should not authorize contact between the employer or its agent and the health care provider in a manner that cuts the employee out of the “medical information loop” and, more generally, should not authorize the disclosure of information generated course of future care.

    While this is a decision based on specific and relatively restrictive collective agreement language, Mr. Surdykowski’s fully-reasoned decision (which is based on 20 days of hearing) may be authoritative and conflicts with fairly standard employer practices. Unionized employers should consider it and reflect upon their short term disability or sick leave administration practices, their medical consent forms and their collective agreement and benefit plan language.

    Importantly, the Surdykowski award is only about the information an employer may request for the purpose of adjudicating short term disability benefits. Although he comments peripherally on employers’ need for information in the accommodation process, to the extent an employer has a need for more fulsome information to provide accommodation or to develop a plan for safely returning an employee to work, it may be justified in seeking further and more detailed medical information. Based on the reasoning in the Surdykowski award, such requests should be tailored as much as possible to meet the need in any given case.

    Re Hamilton Health Sciences and Ontario Nurses Association, 91 C.L.A.S. 228 (Surdykowski).

    Employee privacy, Web 2.0 and other random musings of a management employment lawyer

    The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

    Iacobucci J. in R. v. Salituro

    * * *

    I’ve stayed away from Web 2.0 issues on this blog until now. But when a colleague who I wouldn’t have guessed called me the other day and was quite obviously flabbergasted about how powerful the Facebook application is, it confirmed my very non-original opinion that this phenomenon of people posting personal stuff on the internet could change the shape of privacy law.

    I was a resister at first, not of the technology, but of the technology as something that was going to change the law as we know it. You see, I’m a former research lawyer and (as you know) like to follow developing case law. Through this affair of the heart I’ve learned that nine out of ten judgements are confined to their facts. The tenth is usually one I can squeeze some meaning out of, formerly in our internal firm newsletters and now in this blog. I know well that incremental change is truly the norm for the common law. So even as a user of Facebook that was fully-aware of the new masses of people taking control of the internet’s content, I was sceptical (or clueless) that Web 2.0 meant much for privacy law.

    My non-belief was aided by my practice as a management-side employment lawyer. We get asked to help employers manage employees who post bad things on the internet all the time. Most of the time we rely on contractual rights, hopefully ones that are helped by a nice “blogging” policy so employer interests can be protected without having to rely on an argument that “employees ought to have known.” Like maybe a policy that tells employees that saying an improper thing to 350 Facebook friends can cause just as much harm as saying it to the world and, hence, will be treated as such. Disputes about off-duty conduct and about how far an employer’s right to regulate an employee’s private life goes have been litigated in Canada for years. Not simple by any means, but nothing new.

    Then came the harder files. Former employees don’t have employment contracts. They can have a duty to keep information confidential, but in Canadian law the duty is based on the circumstances under which information is communicated and received. Disparagement of a former manager doesn’t fit, and as a result I’ve gained a rather quick interest in the law of defamation. But what if a former employee publishes a true but embarrassing or harmful fact about a former manager? Or a patient or client? Think about an accurate and fair account of bad management. Say it includes a manager’s home phone number stolen from a personnel file. Or maybe a nurse posts information about a patient’s medical condition on a Facebook page. If employee and patient privacy is regulated, the organization may be in for a problem with a privacy regulator (though not likely for disclosure of the bad management story). But does it have a legal means of acting against the rogue former employee to contain the breach? Does the manager or patient for that matter? What the heck is the basis for the claim?

    What’s that? “A new common law right of privacy,” you say?

    I am happy that I work with many fair and reasonable organizations, but I’m not really in the running for the “new invasion of privacy tort and implied (contractual) privacy rights advocate-of-the-year” award. We’re only inching our way towards court-based recognition of privacy rights in Canada. Though a newly-recognized privacy right would cause some constraint on management, the example above shows that new bases for protecting privacy would at least fit with some management interests. I think most employers would feel compelled to take action to protect a manager whose privacy is under attack by a former employee simply as a matter of good human resources. A novel confidentiality clause in an employment contract may take employers part of the way provided it hits the right level of post-employment restrictiveness, but such a clause would only invite the truly important question: what types of restrictions on expression ought to be imposed or enforced by a court in the name or privacy?

    So I’m a believer now. I’ve mentioned before that I recently read Daniel Solove‘s book, The Future of Reputation. It’s a great read, and got me thinking about privacy law and its relationship to freedom of expression, an issue of balance that I don’t get exposed to when working with very technical privacy regulation on a day-in and day-out basis. It also helped me unlock a link between privacy, the law of defamation and even intellectual property that I hadn’t fully understood and that is critical to our developing common law of privacy. Web 2.0 will push the common law along, maybe incrementally, but likely at a pace that reflects a true social phenomenon. We might expect bad decisions and confusing jurisprudence given the pace of change, but we’ll soon enough have a rational governing common law.

    But, of course, the significance of Web 2.0 raises other challenging issues.

    There’s the increasing significance of the principle of practical obscurity – the one that says information can still be private (or one’s interest in keeping something private can subsist) even if it is exposed to some unauthorized or limited authorized access if it is so buried that the information remains obscure. This has been a part of privacy law for some time, recognized as early as 1989 by the United States Supreme Court in Reporters Committee, but it is a principle that should now have an increasing importance as privacy law develops.

    Then there’s the merging of professional and personal reputation and its impact on workplace privacy law. My loving and understanding wife accepts that I “work” all the time and in turn brings her own laptop to our dinner table – which, appropriately enough, is four feet high and more of a casual dinner “bar.” I also have a mainly professional blog but a deep craving to blow the barrier between my personal and professional personas apart by revealing more and more of myself online. If I’m going to be on-duty all the time I’d better do it in my own skin or I’ll be bound for misery and burnout eh?

    I assume the way I work is not atypical for a year 2008 knowledge worker in his or her mid-30s, and therfore ask the following: Have we surrendered all privacy to our employers? Or is a new legal framework for employee privacy needed now that the “workplace” is boundless and there is no true “off-duty?” If the boundary between the workplace and the outside world is disintegrating, where should courts now draw the line between what an employer is and is not allowed to know about its employees?

    Can you tell I’m excited? Thanks for listening to my story and my ramblings. I’m looking forward to watching this play out and following the developments. If you have any good readings to further feed my interest please let me know. See ya!