Author: Dan Michaluk

Judicial review petitition moot after requester loses interest in obtaining access to record

On January 8th, the Supreme Court of British Columbia dismissed a British Columbia Lottery Corporation petition for judicial review because the requester was no longer interested in receiving a copy of the policies and procedures manual at issue. It rejected the BCLC’s argument that the petition should be heard because of the prejudice it would face in dealing with future requests for the same record, stating “If, in the future, some other party seeks production of the Manual, the Commissioner will have to decide the matter based on the law and evidence as it then exists.”

British Columbia Lottery Corporation v Dyson, 2013 BCSC 11 (CanLII).

BC access decision quashed for improper consideration of expert evidence

On January 8th, the Supreme Court of British Columbia quashed an access decision because the Commissioner admitted opinion evidence, but did not consider it to be expert evidence.

The Court differed with the Commissioner in finding that the opinion was “necessary” to resolve an issue about whether the disclosure of sales data, by postal code, could reasonably be expected to cause economic harm to the British Columbia Lottery Corporation. The Commissioner held that the opinion was unnecessary because it went to the very question before her. The Court held that the opinion was necessary because it went to constituent facts such as whether the data had monetary value and could provide grey market competitors with a competitive advantage. Given the opinion met the criteria for admissibility, the Court held the Commissioner erred in law by failing to consider it as expert evidence. It said, “Opinion evidence is only admissible as expert evidence.”

British Columbia Lottery Corporation v Skelton, 2013 BCSC 12 (CanLII).

ABCA stands up for settlement privilege

On January 21st, the Court of Appeal of Alberta refused to make an exception to settlement privilege to allow a party to answer a limitation period defence. In seeming to answer the deciding master’s comment that settlement privilege is not as “robust” a form of privilege as others, the Court said, “for the rule to operate properly, not only must the ambit of the settlement privilege be broad, but the exceptions to the exclusionary rule must be narrowly construed and only be given effect where another policy objective can be shown to outweigh any impact that may arise to the settlement objective.” It held that settlement privilege should not normally give way to allow a party to answer a limitations defence and held there was nothing about the circumstances to justify making an exception.

Bellatrix Exploration Ltd v Penn West Petroleum Ltd, 2013 ABCA 10 (CanLII).

BYOD policy – Charting a good path to higher ground

This is just a cross-post to a piece of mine that we’ve published  on the Hicks Morley website. Here’s a link and a teaser:

The desire to use personal mobile devices to undertake work has risen like the incoming tide. Employers must make a choice: turn the tide on the use of personal devices by re-enforcing an outright ban or chart a thoughtful path to higher “Bring Your Own Device” or “BYOD” ground. Employers that do neither will sink into the mire of unreasonable IT security risk. This FTR Now discusses the pros and cons of adopting policy that allows employees to use a personal mobile device for work and the aims of proper BYOD policy.

Docs obtained under access legislation producible in litigation despite any government interest

On January 10th, the New Brunswick Court of Appeal held that various RCMP records obtained by a plaintiff under access legislation and listed in her Schedule B were producible notwithstanding her privilege claim.

The Court, in essence, rejected the plaintiff’s suggestion that the RCMP had a continuing interest in the plaintiff’s use of the documents. It held that the Wagg screening process for dealing with production and use of Crown brief materials did not apply because the plaintiff did not obtain the records from the Crown pursuant to the Stinchcombe duty. Similarly, it held the documents could not be subject to public interest privilege given they had been produced by the RCMP pursuant to an access reqeust. The Court commented:

Ms. Bennett’s claim that “[f]rom a public policy perspective a person should be able to access their personal information which is held by any government department including the RCMP without fear that once they access that information it could be subject to production to a stranger by virtue of litigation” is irreconcilable with the disclosure obligations of a party who launches a civil action where the documents are relevant to the subject-matter of the claim.

The Court also held the records were not subject to litigation privilege, though obtained by the plaintiff’s counsel after the start of litigation.

Bennett v State Farm Fire and Casualty Company, 2013 NBCA 4 (CanLII).

Turn in the tide on Facebook photos as evidence?

I believe we’re seeing a slow retreat from the view expressed in Leduc v Roman, a 2009 Ontario case in which Justice Brown suggested photos on Facebook are presumptively relevant (in a non-production scenario) when a Facebooking plaintiff claims loss of enjoyment of life.

Stewart v Kempster is the new Ontario case that awkwardly distinguishes Leduc and is similar to Fric v Gershman from British Columbia. Both suggest that pictures of people who claim to have suffered a loss of enjoyment of life lounging around looking happy are generally not relevant (or have limited probative value), but pictures of skydiving, surfing and other action photos might be different.

Now, from British Columbia again, we have the following statement from Dakin v Roth, a January 8th British Columbia Supreme Court trial decision in which the plaintiff produced Facebook photos that the defendant adduced, perhaps without dispute. Justice Cole says:

The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.

I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v Narayan, 2012 BCSC 734 (CanLII), 2012 BCSC 734 (at para. 30) in respect to Facebook photos: “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.

Hat tip to Erik Magraken of the BC Injury Law and ICBC Claims Blog. Here is a link to an archive of Erik’s posts on Facebook photos in British Columbia personal injury cases.

Information Roundup – Volume 2013, Edition #1

The “Information Roundup” is back!

This is something I’ve run in the past that features a compilation of tweets plus a personal note of some kind. I’m going to bring it back because I’ve started tweeting links to information and privacy decisions that don’t quite deserve a full post and want a good record of them somewhere. It will also be nice to add a little bit of colour back into the blog.

So here’s the first list for 2013, with a more to come as we go:

As for me, I’m quite obsessed by paddling (a prone paddleboard) right now and recorded this video just after Toronto had its big snowstorm this Christmas. It’s quite a beautiful thing to be on the Lake O at this time of year. Dark and moody but beautiful. I hope the video gives you an appreciation of the variety of experiences the Lake can offer and maybe an urge to get wet.

BC commissioner uses fleet management complaint to answer BIG questions about PIPA

On December 19th, the British Columbia Office of the Information and Privacy Commissioner dismissed a complaint about the collection and use of vehicle location and operation data for the purpose of managing employee performance. In doing so, the OIPC opined broadly on the meaning of “personal information” and “work product information” and on the standard of reasonableness for collecting and using employee personal information under BC PIPA.

The case deals with an elevator company and its field mechanics. The mechanics objected to the company’s collection of data about service vehicle location and data about service vehicle operation – e.g., distance travelled, speed and incidents of harsh braking. The company argued this information is not regulated by BC PIPA at all because it is not “personal information” or, alternatively, is “work product information.”

The OIPC rejected the company’s primary argument and held that vehicle location and operation data is personal information. In doing so it rejected a narrow definition of personal information that requires personal information to be “about an identifiable individual” in that it reveals something private or intimate about the individual – a concept accepted in some case law and loosely related to the “biographical core” concept featured in Charter search and seizure jurisprudence. Instead, the OIPC said that information about an identifiable individual is personal information if it “is collected, used or disclosed for a purpose related to the individual.”

The OIPC also rejected the company’s alternative argument and held that vehicle location and operation data is not work product information. It reasoned that vehicle location and operation data is not “prepared or collected” by an individual in the course of work and that, generally, data that is automatically recorded “without directed conscious input by an individual” is not work product information.

While these principles favour privacy protection, the OIPC also demonstrated respect for employer interests in finding the company’s collection and use of employee personal information was reasonable for its purposes. The OIPC expressly rejected a four part reasonableness test (generally disliked by employers) in favour of a more flexible “reasonableness in all the circumstances” test:

The assessment of reasonableness will occur in the context of the established purposes for the employer’s collection, use or disclosure and thus should have some regard to that context. But the assessment may also address a number of other possible considerations.

As part of its reasonableness discussion, the OIPC also noted that an organization need not adopt the least privacy-intrusive alternative regardless of cost or consequences (though should be able to demonstrate that it has given “reasonable consideration” to less intrusive alternatives).

Schindler Elevator Corporation (Re), 2012 BCIPC 25 (CanLII).

Ontario court stresses that law tolerates rough political debate

On December 21st, the Ontario Superior Court of Justice ordered a retrial of a successful defamation action in a case that nicely illustrates the heavy burden on a party seeking to sue another for a defamatory publication that is made on an occasion of qualified privilege.

The defendant was a municipal councillor who responded to an e-mail sent by a community activist to council members about a matter of public interest. The defendant’s response stated that the plaintiff was “a destructive mean spirited liar that does not deserve the time of day.”

The appeal court held that the trial judge erred by applying the wrong legal test for qualified privilege. In essence, it explained, the trial judge relied upon the malice inherent in uttering defamatory words to conclude that qualified privilege did not arise instead of recognizing the occasion of privilege and properly assessing whether the plaintiff had proven “express malice.” To illustrate, the appeal court noted that:

  • the trial judge held that the defendant made his publication negligently, but did not find that he spoke “dishonestly” or “with knowing disregard for the truth” as required by to rebut the presumption of honest belief; and
  • the trial judge held that the defendant made his publication “to re-enforce his own political goals and to discredit his opponents, and in particular, their spokesman [the plaintiff],” which signalled an intent too valid to warrant a finding of malice.

Although the appeal court acknowledged these findings, it held that it could not render a final judgment because the factual findings at trial did not address the proper tests. It ordered a new trial on the question of malice alone.

Whitehead v Sarachman, 2012 ONSC 6641 (CanLII).

IPC issues strong order limiting access to “constitutency records”

On December 21st the IPC/Ontario issued an order that held that communications about “cycling issues” between two councillors were not under a municipality’s custody or control.

The IPC reached its finding even though the requested records (assuming their existence) would relate to municipal business and be found (at least in part) on the municipality’s information technology system. It explained, in general terms, that records arising exclusively out of a councillor’s political activity – commonly called “constituency records” – are not subject to the right of public access:

Although the distinction between “constituency records” and “city records” is one framework for determining custody or control issues, it does not fully address the activities of municipal councillors as elected representatives or, as described in St. Elizabeth Home Society, above, “legislative officers.” Records held by councillors may well include “constituency records” in the sense of having to do with an issue relating to a constituent. But they may also include communications with persons or organizations, including other councillors, about matters that do not relate specifically to issues in a councillor’s ward and that arise more generally out of a councillor’s activities as an elected representative.

The councillors have described such records as “personal” records but it may also be appropriate to call them “political” records. In any event, it is consistent with the scheme and purposes of the Act, and its provincial equivalent, that such records are not generally subject to access requests. In National Defence, the Court stated that the “policy rationale for excluding the Minister’s office altogether from the definition of “government institution” can be found in the need for a private space to allow for the full and frank discussion of issues” and agreed with the submission that “[i]t is the process of being able to deal with the distinct types of information, including information that involves political considerations, rather than the specific contents of the records” that Parliament sought to protect by not extending the right of access to the Minister’s office.

The policy rationale applies with arguably greater force in the case of councillors who, unlike Ministers, do not have responsibility for a government department and are more like MPP’s or MP’s without a portfolio. A conclusion that political records of councillors (subject to a finding of custody or control on the basis of specific facts) are not covered by the Act does not detract from the goals of the Act. A finding that the city, as an institution covered by the Act, is not synonymous with its elected representatives, is consistent with the nature and structure of the political process. In arriving at this result, I acknowledge that there is also a public interest in the activities of elected representatives, and my determinations do not affect other transparency or accountability mechanisms available with respect to those activities.

Toronto (City) (Re), 2012 CanLII 81955 (ON IPC).