Author: Dan Michaluk

Master McLeod sets out parameters of hard drive review

Last September Master McLeod of the Ontario Superior Court of Justice issued an e-discovery order that was just brought to my attention and that makes some points about the discovery of a hard drive.

The order involves an external hard drive that a departed employee (and defendant) admitted contained his former employer’s (and plaintiff’s) information and turned over to plaintiff counsel for “forensic review.” Plaintiff counsel did not use a forensic IT specialist to review the drive. It reviewed the drive itself and segregated a number of potentially privileged files. It also discovered over 400 zip files that contained backups of information from the defendant’s personal laptop.

Master McLeod held that the defendant should review the files that plaintiff counsel had segregated as potentially privileged. In doing so, he commented that there was an honest misunderstanding about the meaning of “forensic review” and that plaintiff counsel took adequate steps to protect itself from exposure to privileged communications. Nonetheless, according to Master McLeod “conducting the document review in house without specific agreement or disclosure was less than prudent.”

Master McLeod also held that the plaintiff could continue to review the 400 plus zip files through its forensic expert. He said:

In my view this kind of analysis is best conducted by an arm’s length expert for two reasons. The first is that the data ostensibly belongs to the opposing party and will contain irrelevant confidential information (as anticipated) and apparently privileged information (which does not appear to have been anticipated by the defendant at least). The second reason is that the personnel conducting the analysis may have to be witnesses at trial and that militates against the use of in house I.T. or paralegal staff.

Notably, Master McLeod rejected a defendant argument that the zip files should not be reviewed at all based on a statement in the Sedona Canada Principles that indicates recourse to backup files should not ordinarily be within the scope of production. He held that, In the circumstances, the backup files were a potentially critical source of evidence that the plaintiff was prepared to review. The plaintiff would bear the cost of the review subject to cost recovery at the end of the day.

Descartes v Trademerit, 2012 ONSC 5283.

Nova Scotia court orders hard drive review to disclose usage patterns

On February 8th, the Supreme Court of Nova Scotia ordered the forensic review of an injured plaintiff’s hard drive because it would likely contain evidence relevant to a claim that he could only work at a computer for two to three hours a day. Although the computer was used by others (perhaps through separate user profiles, though this is unclear on the record), the Court held that use by others went to the weight of the evidence, a matter to be assessed at trial. Notably, the order contemplates a search to be conducted by a third party under a protocol proposed by the defendant.

Hat tip to Barry Sookman.

Laushway v Messervey, 2013 NSSC 47 (CanLII).

OLRB dismisses vehicle telematics policy grievances

On January 21st, the Ontario Labour Relations Board dismissed three policy grievances that challenged the use of vehicle telematics and a rule against the personal use of company vehicles without permission. Vice-Chair Silverman stressed that use of company vehicles to get to and from work was optional but of benefit to employees and said the following about the union’s “less intrusive means” argument:

The union’s suggestion that the employer use another system for monitoring use such as the PDA or the vehicle’s odometer or gas consumption,either is not germane to what the employer is permitted to do. The issue is whether the employer is precluded from using the Telematics device not whether some other device, is adequate to the purpose.

In assessing the reasonableness of the personal use prohibition, Vice-Chair Silverman recognized that the employer exercised a discretion to relieve against the prohibition and it was reasonable to do so based on a disclosure of off-work plans.

International Union of Elevator Constructors, Local 50 v Otis Canada Inc, 2013 CanLII 3574 (ON LRB).

Complaint challenging timidity of employer response to attack blog dismissed

On January 22nd, the Ontario Grievance Settlement Board dismissed a group complaint alleging that an employer failed to respond appropriately to a union blog that attacked members of management.

Vice-Chair O’Neil heard the complaint. The following is her description of the content of the blog:

The more objectionable posts in evidence allege managerial corruption or negligence, such as never seeing inmates or having “screwed up” the previous attendance management program. Others insult managers in general, using terms such as useless, pathetic, vindictive, morons and misfits. Cartoons and comments referred to attendance management procedures and imposition of discipline as “kangaroo courts”. Suspensions for excessive use of force were referred to as attacks on people just trying to do their best, and it was suggested that the safety of the staff was never a concern. Mocking allusions to acquiescing to being strip searched were used to describe those in the union accused of lacking courage to take action against policies the blogger did not like. Staff who took acting assignments and worked overtime were criticized as siding with management, and managers who work significant amounts of overtime accused of having social problems. Pay for performance was characterized as bonuses for screwing up, and it was suggested that the superintendent and deputies would get a higher percentage of pay for performance the more short-staffed the institution was.

Some, but not all of the blog’s authors were identifiable. Nonetheless, the employer chose to take a measured approach to dealing with the blog and did not discipline any perpetrators. Instead, it authored a joint memo with the local union president that encouraged respectful conduct and issued its own warning letter to those responsible for the blog. The blog then became password-protected, which members of the targeted management group did not feel was an adequate resolution. They complained.

In dismissing the complaint, Vice-Chair O’Neil said the following about an employer’s duty to respond to workplace harassment:

In respect of providing a harassment-flee workplace, it is important to acknowledge that it is not humanly possible to prevent all behaviour that amounts to harassment, defamation or disrespectful behaviour towards employees. There are very real limits to the power of an employer to anticipate and control such behaviour even in the workplace, let alone outside its physical bounds. In recognition of this reality, the law does not make the employer responsible for all actions of its employees that have a negative impact on other employees. In the area of harassment in the workplace, arbitral case law has generally found, in the absence of a contractual provision requiring it to take particular action, that an employer will not be held liable unless it has been negligent or fails to act.

Vice-Chair O’Neil held that the employer did not fail to meet any specific requirement of the applicable policy and otherwise acted within its discretion.

Lee v Ontario (Ministry of CommunitySafety and Correctional Services), [2013] O.P.S.G.B.A. No. 1 (G.S.B.).

Sask CA affirms union right to observe job interviews despite privacy claim

On January 31st, the Court of Appeal for Saskatchewan affirmed a union’s right to observe job interviews with external candidates notwithstanding the employer’s claim that the observation right should be “read down” to protect individual privacy.

The case involves a collective agreement provision that gives a union a right to observe job interviews “for which any [bargaining unit member] has applied.” At arbitration, the employer argued that the union’s observation right extinguishes after all bargaining unit members have been eliminated from a competition. It raised the privacy rights of external applicants in making this argument.

The arbitration was a disaster for the employer. The arbitrator held that the union’s right to observe was unlimited. The arbitrator also suggested that the Saskatchewan Local Authority Freedom of Information and Protection of Privacy Act required the employer to notify external candidates of the union’s observation rights and obtain their consent. The employer managed to have the latter finding overturned on judicial review by successfully arguing that the disclosure to the union was for a “consistent purpose.” It did not upset the arbitrator’s interpretation of the collective agreement provision, however, so appealed.

The Court of Appeal affirmed the arbitrator’s interpretation of the collective agreement based on the reasonableness standard of review. It also suggested that the employer’s privacy argument was disingenuous, questioning how the employer could argue that observation by the union was okay so long as bargaining unit members were in the competition but offensive to external candidate privacy interests if they were not.

Saskatchewan Institute of Applied Science and Technology v Saskatchewan Government, 2013 SKCA 8 (CanLII).

Municipality breaches privacy statute by communicating via Facebook

Last September 27th, the Newfoundland and Labrador OIPC held that a municipality breached the Newfoundland Access to Information and Protection of Privacy Act because an employee, in the course of her duties, identified the Facebook accounts of two members of the public and messaged them through her own Facebook account.

The OIPC held that this use of Facebook led the municipality to engage in an improper use of personal information and breach its safeguarding duty. One problem, according to the OIPC, was the use of a means of communication not governed at all by the municipality:

Facebook is a social media website that is accessible from any computer or device which is capable of accessing the internet. In this sense, the use of Facebook by the Town employee may be akin to the removal of personal information from the Town office. This is further exacerbated by the use of the employee’s own personal account to engage in this communication. From this perspective, the information must be protected in the same manner as used by other public bodies which allow for the removal of personal information from their facilities.

The OIPC made clear, however, that communicating personal information through a Facebook account in a public body’s name is also inappropriate. It said:

For the various security and identification issues outlined above, there is no way to ensure that personal information is properly protected on these websites. If an individual requests that communications with a public body be carried out in this manner, the public body must first satisfy itself that the identity of the Facebook account holder is confirmed, and furthermore that express consent be obtained from the individual acknowledging that the privacy of the communication cannot be guaranteed.

The OIPC gives little reasoning about why communicating through a Facebook account in a public body’s name is less secure than communicating through other kinds of corporate email services, but the concept of channelling communications that include personal information through a consumer service like Facebook (which is neither designed as an email service nor targeted at business) raises obvious concerns.

Report P-2012-001 (27 November 2012, OIPC Newfoundland).

Information Roundup – Volume 2013, Edition #2

I’ve managed a few blog posts lately but haven’t been so active on Twitter. Here, however, is what is worth a re-post:

Thanks to all those who shared these good links.

In two weeks I’ll be flying down to Tampa to paddle 27 miles with a good group of other prone paddlers from the area and across North America. The energy is building around the event, but it’s going to be hard. If you’re a regular reader of this blog please consider donating to the charity for whom we will paddle – the Wounded Warriors Family Support organization, an organization that provides support to the families of American soldiers wounded, injured or killed in battle. Or, if you’d rather, please consider making a donation to an alternative Canadian charity here.

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Social media and the law – three nuggets and one blawger’s tale #ALC2013

I’m posting this from beautiful Edmonton, where I presented at the Alberta Law Conference social media session together with Diane McLeod-McKay (Alberta OIPC, Director, Alberta PIPA) and Doug Jasinski (Skunkworks Creative Group). Thank you to our Chair and warm host, uber-librarian Shaunna Mireau (Field Law). It was a nice balanced session, with a little marketing and communication, a little core privacy and a little “other,” all of which came together nicely to give helpful picture to our lawyer audience.

I was the “other.” My slides are below and deal with (1) the “licensed communicator” concept for governing business use of social media, (2) the social media civil production cases and (3) preservation of social media evidence. I also (as asked) spoke a little about my own blogging experience, an enjoyable first.

Judicial review not the regular means to challenge PIPEDA investigation reports

On January 15th the Federal Court dismissed two judicial review applications brought by a self represented applicant who took issue with two OPC investigation findings made under under PIPEDA. The Court held that an application under section 14 of PIPEDA, which invites a de novo hearing, was an adequate alternative remedy to judicial review:

In conclusion, I find that there is an adequate alternative remedy provided by section 14 of the PIPEDA that would have been the appropriate recourse to deal with all matters raised concerning the complaint, the OPC reports and the investigation that followed. When comparing the recourse provided by section 14 of the PIPEDA with the possibilities offered by judicial review, which is discretionary and extraordinary in nature and limited to the review of the reports and the documentation contained in the certified record, I find that the former is the appropriate recourse as the intent of the legislator to this effect is clear. I will not therefore exercise my discretion to judicially review the reports of the Privacy Commissioner, and I will dismiss both applications for judicial review.

In making this finding the Court suggested that a judicial review application to allege bias or that the OPC committed some other procedural injustice might be amenable to judicial review.

Kniss v Canada (Privacy Commissioner), 2013 FCC 31.

Arbitrator says that an employer owes an employee no duty to investigate reasonably suspected wrondoing

On December 21st, Ontario arbitrator Ian Anderson dismissed a termination grievance brought by an employee who was terminated for bringing personal computing devices into a high-security workplace and downloading significant volumes of unauthorized (and risky) software onto an employer’s network.

The outcome is driven by the facts, but Arbitrator Anderson did deal with an asserted employer duty to investigate suspected wrongdoing. He dismissed the union’s argument that the employer could not charge the grievor with the downloading offence given it did not investigate and discover the grievor’s downloading sooner, at the same time it discovered and disciplined the grievor with excessive internet use. Arbitrator Anderson said:

The Union suggests that an employer has a responsibility to investigate potential misconduct of which it has reasonable suspicion. Put differently, the Union suggests that in order to justify discipline delayed on the basis of earlier lack of knowledge of the alleged misconduct, there must previously have been no reasonable basis to suspect that misconduct.

The Union’s argument, as I understand it, is not restricted to circumstances that might give rise to estoppel. Absent some provision in the collective agreement, I do not agree that there is such a general duty of investigation on an employer. Nor, in my view, is this proposition supported by the cases relied upon by the Union.

General Dynamics Land Systems v National Automobile, Aerospace, Transportation and General Workers Union (Caw-Canada, Local no 27), 2012 CanLII 86240 (ON LA).