Ontario claim attacking a report of concerning behavior and university response may proceed

On December 20th, the Ontario Superior Court of Justice dismissed a motion to strike a defamation and negligence claim that arose out of a student’s report of concerning behavior to her university.

The plaintiff alleges he was wronged by the student’s report of the following facts and the university’s further (and allegedly negligent) “reporting” and “publication” of the following facts (as summarized by the Court):

Two weeks earlier the plaintiff had approached the individual defendant after class and advised her he really liked her, had strong feelings for her, and wanted to pursue his feelings in a relationship knowing she had a boyfriend.
That the plaintiff told the individual defendant he was not able to sleep, paced in his bedroom all night to fall asleep, and also advised her he could not live without her.
That the individual defendant was concerned for the plaintiff’s health as he might hurt himself and did not seem to have any friends or family in the area.
That the individual defendant had reported that the plaintiff had asked her out four times and had said things that made her feel uncomfortable.

The Court held that there was no basis for concluding the claim was about an academic matter within the university’s exclusive jurisdiction. It also held that the claim, as pleaded, appeared to disclose a reasonable cause of action.

This preliminary decision is of no great significance, though the issue raised by the claim itself is important to post secondary educational institutions. Colleges and universities in Ontario and elsewhere have worked hard to encourage community members to report concerning behavior so it can be properly assessed and managed. Notably, in this case the university and the student defendant are jointly represented.

Thode v University of Ottawa, 2012 ONSC 7284 (CanLII).

Alberta arbitrator says employer’s broad direction to report personal legal troubles reasonable

On July 13th of last year, Arbitrator Sims held that an employer could promulgate and rely upon a policy that requires employees to report legal troubles with the potential to affect the their ability to work or, more generally, the company’s interests.

The policy language at issue read as follows:

Involvement in a legal matter

If you are involved in a legal matter or a police case which has the potential to affect your ability to perform your job or harm the interests of TELUS, you must immediately inform your manager.

Arbitrator Sims held that this language, read in the context of the employer’s entire ethics policy, was a reasonable means of enabling the employer to assess whether potential risks to its interests needed to be addressed. He was impressed that the employer offered employees a confidential ethics line to seek guidance on their reporting duty, but the decision does not appear to rest on this fact.

Telus Communications Inc v Telecommunication Workers Union, 2012 CanLII 51085 (AB GAA).

Existence of unfound docs no reason to allow a hard drive inspection (Ontario)

On December 19th, Justice Morgan of the Ontario Superior Court of Justice made the following statement of principle in dismissing a request to inspect a party’s hard drive that followed the party’s service of a supplementary affidavit of documents:

Plaintiff’s counsel submits that computers do not err, and the fact that a document was overlooked the first time implies that the search was unredeemably deficient. However, computer storage and search systems, like traditional filing systems, are subject to human error. The Defendant’s obligation is to make every effort to produce what the Rules require it to produce, but there must be evidence stronger than a corrected error for a court to order that the Plaintiff actually take control of the search through the Defendant’s computer hard drive.

Justice Morgan also dismissed a request for an order requiring the provision of information about how the party’s electronic search was conducted. He commented that the Rules “do not require a party to explain how or where the relevant documents were found or the methodology of its search for those documents.”

Zenex Enterprises v Pioneer Balloon, 2012 ONSC 7243 (CanLII).

No disclosure of information from Facebook in Ontario case

On December 21, the Ontario Superior Court of Justice dismissed a motion for production of all content on the private portion of a plaintiff’s Facebook account.

The plaintiff alleges she sustained permanent impairment as a result of motor vehicle accident that lessened her ability to participate in recreational, social, household and employment activities and caused a loss of enjoyment of life. The evidence on the defendant’s motion for production indicated the plaintiff had 139 Facebook friends and had made postings on her (publicly-available) timeline stating that she was feeling better and that “Life is good!” Notably, in response to the motion the plaintiff filed evidence that described the content of the private portion of her Facebook account, attached pictures (under seal) and reconciled the images in the pictures (of her standing, sitting and leaning) with her claim.

Regional Senior Justice Heeney held that the photographs he reviewed were not relevant:

I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff water skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations that she has testified she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.

Justice Heeney made clear that he was not endorsing the withholding of any otherwise producible information based on a privacy claim, though it is clear that he had particular concerns about the invasive nature of the defendant’s production request. In particular, Justice Heeney suggested that a production request for an individual’s entire Facebook account is highly problematic:

Before the dawn of the internet age, people often communicated by writing personal letters to each other. It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them. They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past. However, it is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff’s claim for non-pecuniary damages. The shocking intrusiveness of such a request is obvious. The defendants’ demand for disclosure of the entire contents of the plaintiff’s Facebook account is the digital equivalent of doing so.

Stewart v Kempster, 2012 ONSC 7236 (CanLII).

Lawyer’s notes of opposing party’s statements to be produced

On October 30th the Ontario Superior Court of Justice issued a decision that illustrates the burden on a party who claims that notes taken of an opposing party’s statements are subject to litigation privilege.

The Court rejected a litigation privilege claim because it was impossible to discern from a review of the notes alone that they contained solicitor’s work product – i.e., confidential comments, remarks and notes personal to the transcriber and made for the dominant purpose of preparing for litigation. Although the notes contained some annotations and underlining, the Court held that it was not self evident these markings were work product. It also held that counsel’s submission that certain text in the notes represented an evaluation of the opposing party’s value as a witness was not sufficiently persuasive to justify a withholding of otherwise producible information.

Hart v (Canada) Attorney General, 2012 ONSC 6067 (CanLII).

Plaintiff left to lie in its e-mail mess

On November 15th, the Supreme Court of Nova Scotia dismissed a motion to amend a production order that caused a pension plan great difficulty given its committee members had used their work e-mail accounts to send and receive relevant communications.

The pension plan sued its investment advisors to recover investment losses. About a year ago the Court ordered it to conduct keyword searches involving 51 terms. This required the pension plan to search for e-mails sent and received by its committee members who held day jobs for the plan sponsor (a separate legal entity) and used their work e-mail accounts to send and receive relevant communications. Matters were made worse because the pension plan’s litigation counsel was actively engaged in matters adverse to the sponsor, which meant the sponsor was unwilling to let the pension plan review e-mails without first vetting them itself. The 51 terms produced too many responsive records for the sponsor, who objected to the pension plan. In response, the pension plan moved for relief. It argued that the 51 terms produced too many “false positives” and asked for an amendment.

The Court dismissed the motion. It held that an amendment to the order could only be justified based on “compelling reasons” given that the order was the product of argument, reasoning and a lengthy decision and because it would invite selective application of a narrower search (to the benefit of one party) than applied to all other data sources under the parties’ control. The Court held that the pension plan failed to meet this burden. It was unimpressed with the evidence adduced through counsel’s paralegal, who gave hearsay evidence about search quality analysis conducted by the pension plan’s litigation support company. The Court explained:

I have no direct evidence from CWL and am not satisfied that the evidence shows CWL to have the capability to reliably identify relevant documents subject to disclosure. I have little evidence upon which to assess the correctness of CWL’s assessment of what constituted a “false positive”. I am particularly concerned because the context in which the revised search was conducted intended to minimize the number of documents to be reviewed. I cannot say whether CWL sacrificed the quality of the search to meet the goal of reducing the quantity of captured documents.

The Court did not clearly rely on the committee members’ use of the sponsor’s e-mail system in dismissing the motion, but did comment that the pension plan’s situation was “of its own making.”

Halifax (Regional Municipality Pension Committee) v State Street Global Advisors Ltd., 2012 NSSC 399 (CanLII).

All About Information’s #Clawbies2012 Nominations

This year I nominate The Trial Warrior Blog by Antonin Pribetic and Morton’s Musings by James Morton. Blogs driven by genuine interest in the law are becoming more and more distinct as those with a more promotional bent are pouring in. I like both these blogs because they are pure in spirit. Bonus points to Pribetic for his honesty and feisty spirit and bonus points to Morton for contributing good, concise educational content.

I also nominate FMC’s Data Governance Blog, driven mostly by the efforts of Tim Banks. It competes most closely with the content from this blog, but is good.

The other side of the balance: employer interests, work systems and R v Cole

Here’s a link to a essay that describes the impact of the Supreme Court of Canada’s in R v Cole – the work system privacy case. I appeared with my colleague Joseph Cohen-Lyons on behalf of the Canadian Association of Counsel to Employers, and the paper represents the intellectual end point of a great experience. Whether you agree with the position or not, I hope it sparks some ideas!

View this document on Scribd

OCA denies access to identity of person paying bankrupt’s legal fees

On November 29th, the Court of Appeal for Ontario held that the identity of a person paying the legal fees of a bankrupt person was protected by solicitor-client privilege.

The Court stated the applicable law as follows:

From these developments in the jurisprudence I take the law to be that administrative information relating to the solicitor-client relationship – including the identity of the person paying the lawyer’s bills – is presumptively privileged. The presumption may be rebutted by evidence showing: (a) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications (Maranda, at para. 34 and Ontario (Assistant Information and Privacy Commissioner), at para. 9); or (b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client (Cunningham, at paras. 30-31).

The Court applied this in dealing with a trustees’s pursuit of assets from a person it alleged to be holding assets for the bankrupt. The bankrupt had lost a motion in the matter and was ordered to pay a large costs award which, unpaid, led the trustee to move to discover the identity of the person paying the bankrupt’s fees.

The Court held that the trustee could not rebut solicitor-client privilege because the identity of the payor was relevant to the trustees’s broader allegation if not the motion that had led to the costs order. Much more broadly, it also held that disclosing the identity of the payor would reveal a confidential communication between the bankrupt and his counsel about how the bankrupt would pay his fees – a communication necessary to the bankrupt’s process of obtaining legal advice.

Kaiser (Re), 2012 ONCA 838 (CanLII).

Court understands that PIPEDA does not limit its power to assist execution creditors

The Ontario Superior Court of Ontario issued an endorsement on November 19th that demonstrates a proper understanding of the Court of Appeal for Ontario’s judgement in Citi Cards v Pleasance. Justice Morgan said (with emphasis added):

Both parties’ counsel concede that the mortgage companies are wary about disclosing information about a mortgage debt to anyone other than the debtor himself due to the operation of Ontario’s [sic] privacy legislation . The Personal Information Protection and Electronic Documents Act (“PIPEDA”) would seem to prohibit banks and other organizations from making precisely the type of voluntary disclosure that the Plaintiff seeks. It is little wonder, therefore, that the Plaintiff cannot obtain the up to date mortgage statements by simply asking the mortgagees for them.

The Court of Appeal has pointed out in Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3 (CanLII), 2011 ONCA 3, at para. 29, that under PIPEDA “[a]n organization may disclose personal information…only if the disclosure is [authorized by one of the exemptions]”. Those exemptions are contained in section 7.3 of PIPEDA. That section provides, inter alia, that disclosure of information is permitted by an organization such as Griffin’s mortgagees where that disclosure is “required to comply with a subpoena or warrant issued or an order made by a court…” The Plaintiff did not join the mortgagees as respondents to the motion before me, but he is of course free to do so at a future date.

The last statement suggests that a Court will entertain a motion for production of a mortgage statement from a mortgagee notwithstanding PIPEDA. Citi Cards says that courts should grant such orders sparingly given PIPEDA protects the privacy of mortgagors but does not mean that a court is prohibited from making such an order. There has been some confusion about this point.

McBean v Griffin, 2012 ONSC 6555 (CanLII).