BCSC says PIPA does not have quasi-constitutional status

The British Columbia Supreme Court issued an oral judgment last January that appears to just recently have been published. The Court found that the clear right to membership information given to members of a co-op under the British Columbia Cooperative Association Act does not conflict with prohibitions in the British Columbia PIPA and is not superseded by prohibitions in British Columbia PIPA. Justice Gaul commented:

While the respondent is correct in noting that the Supreme Court of Canada in Lavigne considered the “quasi‑constitutional” nature of privacy legislation, the court did so with specific reference to the Privacy Act RSC, 1985, c. P-21. This federal legislation focuses on the privacy obligations of governmental organizations as opposed to private organizations. That is an important distinction when it comes to the case before me because the PIPA is a legislative enactment designed to govern the privacy obligations of private organizations. I am unpersuaded that the PIPA has any “quasi-constitutional” roots or purpose that would give it the special status the respondent argues it has.

The Court issued a declaration that any member of the respondent co-op in good standing may obtain a copy of its membership list.

Pearson v Peninsula Consumer Services Cooperative, 2012 BCSC 1725 (CanLII).

Ministry of Labour breaches FIPPA in administering an OLRB production order

On November 9th the Information and Privacy Commissioner/Ontario held that the Ministry of Labour breached FIPPA’s safeguarding duty after it investigated the administration of a production order made by the Ontario Labour Relations Board.

The directors of a bankrupt employer appealed an order to pay wages and vacation pay to 309 former employees to the OLRB. The directors and the prosecutor agreed to a consent order that required production of relevant financial information about the 309 employees, and the prosecutor agreed to one or more participating employees that all 309 employees (as parties to the proceeding) would receive the production. The OLRB mailed an unencrypted CD-ROM containing the 309 employees’ names, social insurance numbers, total annual remuneration, period of earnings and address information. After complaints were lodged by some recipients the OLRB attempted to recall the mailing, but in the end did not recover 137 of the CD-ROMs.

The production order itself was the real source of difficulty here, but the IPC rightly acknowledged it had no jurisdiction to scrutinize the OLRB’s exercise of procedural powers. Instead, the IPC looked at the adequacy of the OLRB’s and Ministry’s security practices, recommending first that the OLRB take the added precaution of making clear to parties that they can request orders to restrict the manner and scope of disclosure. The IPC also held that the Ministry ought to have used a bonded courier service, ought to have considered encryption and ought to have attempted to confirm addresses.

Is this an adequate resolution? What can be done that respects tribunals’ independence but promotes better protection of privacy?

Ontario (Labour) (Re), 2012 CanLII 71576 (ON IPC).

Errant e-mail communication to plaintiff results in waiver of privilege

On November 13th, the Ontario Superior Court of Justice dismissed an application for leave to appeal a privilege waiver finding that was based on the unfairness that sustaining the privilege would work on the plaintiff.

The plaintiff sued for constructive dismissal after being inadvertently copied on an e-mail from her employer to its legal counsel. The e-mail was sent for the purpose of seeking legal advice on the plaintiff’s termination. The employer was unsuccessful in recovering the e-mail despite its attempts.

Waiver ordinarily requires proof of intent to waive. However, Justice Bielby held that sustaining the employer’s privilege in the unique circumstances would be unfair to the plaintiff because its inadvertent communication was the foundation of her claim:

There is no doubt that the email affected the plaintiff’s state of mind. It was the catalyst for the subsequent steps taken by the plaintiff and the position underlying her claim of wrongful dismissal. She copied the email and contacted counsel to whom she disclosed the email. She presumably and with legal advice, considered her continued employment and took the position, rightly or wrongly, that the email effectively terminated her employment.

Of course, this is no endorsement of the plaintiff’s seemingly questionable theory.

Fernandes v Marketforce Communications, 2012 ONSC 6392 (CanLII).

Councillor records not subject to MFIPPA

The exclusion of “constituency records” from the right of public access in Ontario is not new but has garnered recent attention. On October 30th, the IPC held that a request for councillor records “discussing or tracking public opinion on specified issues” was not a request for records under the custody or control of a municipality. Adjudicator Liang held that, although the request was for records relating to matters within the municipality’s mandate, given the municipality had not authorized the named councillors to consider or track public opinion, the request targeted constituency records – records made by the elected officials exclusively in their political capacity.

Toronto (City) (Re), 2012 CanLII 69026 (ON IPC).

Case nicely illustrates how duty of fidelity constrains negative expression in the workplace

On June 13th, Arbitrator Herlich issued an award in which he affirmed discipline meted to an employee who made various negative comments in the workplace but reduced the penalty because the discipline rested in part on an internal e-mail communication that was not culpable.

The employee worked at a convention centre. He was disciplined for expressing negative views on three occasions. Two occasions led to customer complaints. The third was in the workplace where clients were in attendance. The discipline also rested on an e-mail the employee sent to a senior executive that was critical of the employer (though not of any specific individuals). The employer felt the employee did not follow the proper procedure for raising a complaint.

Arbitrator Herlich said the following about the three occasions of negative expression in the workplace:

The grievor obviously has an extensive workplace and labour relations agenda. He is entitled to his views and he is entitled to engage in legitimate trade union activities, including, should he so choose, seeking trade union office and engaging in the politicking that may attend those efforts. That freedom, however, is not absolute and does not provide him with a license to freely express his views at work to, or within the earshot of, the employer’s customers or guests. The grievor clearly did not and, I fear, still does not understand this.

He felt that sending e-mail was different and, in the circumstances, not culpable. Based on this and a consideration of other factors, Arbitrator Herlich reduced the employer’s five day suspension to a three day suspension.

United Steelworkers and The Crown in Right of Ontario (Ottawa Convention Centre) (13 June 2012, Herlich).

Court affirms order to disclose salaries based on public interest override

On October 30th, the Divisional Court affirmed a 2010 order by the IPC/Ontario that required a police board to publicly disclose the specific salary entitlements of a police chief and two deputy chiefs.

The request dealt with base salary entitlements for various years (as granted and recorded in employment contracts). Total salary to be paid to the affected employees exceeded the $100,000 threshold for annual publication under the Public Sector Salary Disclosure Act. The requested disclosure, therefore, would reveal the amount of performance pay received by the affected employees.

The IPC held that disclosure of the affected employees’ salary entitlements would constitute an unjustified invasion of personal privacy based on a provision that shields an employee’s “income” from public disclosure. However, it also issued a broadly-framed finding that disclosure of the “senior level” employees’ personal information was nonetheless warranted based on the “public interest override.” The Divisional Court affirmed the latter finding as reasonable.

York (Police Services Board) v (Ontario) Information and Privacy Commissioner, 2012 ONSC 6175 (CanLII).

SCC articulates rule on testimonial self-incrimination

On Wednesday a 6 – 3 majority of the Supreme Court of Canada held that section 13 of the Charter does not prevent a Crown prosecutor from using prior compelled testimony for impeachment purposes if the testimony does not prove or assist in proving one or more essential elements for which the witness is being tried.

The accused crashed a motorcycle. His passenger sued and the police laid dangerous driving and impaired driving charges. On discovery in the civil matter the accused said he had no memory of the events of the day. At his criminal trial the accused gave a detailed account of the events of the day. The Court granted the Crown leave to cross-examine the accused on his discovery testimony. The Crown successfully discredited the accused based on his conflicting testimony.

The majority, in a judgment written by Justice Moldaver, held that use of the discovery testimony for impeachment purposes did not breach the accused’s rights under section 13 because the discovery evidence was not “incriminating.”

Justice LeBel, for the minority, strongly criticized the majority for causing an unprincipled departure from the Court’s unanimous 2005 judgment in R v Henry. This departure, he argued, will invite uncertainty in criminal matters and discourage full and frank testimony. The latter issue was of interest to the Advocates’ Society, who argued in intervention that a bright-line rule is needed to protect the integrity of the civil discovery process.

R v Nedelcu, 2012 SCC 59 (CanLII).

Nova Scotia judge deals with FOI requests, responsiveness and “mixed” e-mails

On October 22nd, Justice Scanlan of the Nova Scotia Supreme Court said the following about the responsiveness of e-mails in disposing of an FOI appeal:

There are a couple of issues that I wish to address further. It appears the initial review officer may have taken the position that the Respondent could not withhold documents on the basis that they were irrelevant. The Respondent referred to those materials as “not applicable”. According to the Respondent the Review Officer suggested there was no recognized exemption under FOIPOP legislation for “non applicable” materials. Any such ruling would defy commonsense. What possible relevance would it be to the Appellant if someone commented in a document that their grandmother had a wart removed from her nose. (Not that any such comment was made in the redacted materials). With e-mail communications the author on a number of occasions mixed personal or non relevant communications with information which was properly disclosed. The personal, non relevant, information is not something to which the Appellant is entitled to access. There are some things in records, such as e-mail, which are clearly irrelevant and should not be disclosed. The types of documents that fall inthe “not applicable” category include, for example notes from unrelated investigations or proceedings. The Appellant has no right to see those types of documents just because they are in an officer’s notebook. As I have noted, to suggest non relevant documents are to be produced on a FOIPOP application defies common sense and the scope of the legislation.

Under a strict analysis the “responsiveness” of an entire record is assessed against the wording of an FOI request. Justice Scanlan supports a more purposive approach (which reflects common practice) in which parts of records that are unresponsive may be redacted.

Stevens v. Nova Scotia (Labour ), 2012 NSSC 367 (CanLII).

Ont CA rejects Charter challenge to health regulator investigation power

Today, the Court of Appeal for Ontario held that the power to issue a summons without judicial authorization that is granted to investigators appointed under the Health Professions Procedural Code complies with section 8 of the Canadian Charter of Rights and Freedoms.

Section 76(1) of the Code gives investigators appointed by a college of a regulated health profession the power to summon a person to give evidence on oath or produce evidence relevant to the subject matter of an investigation. The appellant – a doctor whose license was revoked for engaging in acts of sexual misconduct with three boys – argued that the power is wide-sweeping, prone to misuse and disproportionate in light of the legislative purpose underlying the Regulated Health Professions Act and its Code.

The Court dismissed this challenge.

In interpreting section 76(1) (subsequently amended), the Court held that it creates a power to inquire into all forms of professional misconduct and not merely inquire into the treatment of patients. Though this scope is associated with a greater intrusion into members’ private lives, the Court noted that the profession itself controls the scope of the conduct it regulates by articulating what “otherwise private” activity constitutes professional misconduct. It further held that section 76(1) is narrow in the sense that it only authorizes a seizure of information that is relevant to an investigation that has been duly authorized under the Code based on reasonable and probable grounds. The Court held that the registrar of a college must specify the misconduct alleged in authorizing an investigation so that an investigator’s powers are properly constrained, but also held that the Code‘s failure to require such specification did not render it unconstitutional.

The Court then endorsed the Divisional Court’s finding that the power in section 76(1) is reasonable based on the following factors:

The investigation it supports is a regulatory investigation and not a criminal or quasi-criminal investigation.
A power of summons is less intrusive than a power to enter and search a premises because it can be challenged prior to being answered.
Appointment by a college based on a belief in misconduct on reasonable and probable grounds is a precondition to exercising the summons power.
There is a strong public interest in regulating health professionals.

The Court also dealt with an abuse of process/delay argument that I have not covered here.

Sazant v College of Physicians and Surgeons of Ontario, 2012 ONCA 727.

HRTO dismisses complaint that school board used Ontario Student Record in its defence

On September 19th, the Human Rights Tribunal of Ontario dismissed an application that alleged a school board breached the Ontario Human Rights Code by using an Ontario Student Record in defence of a prior application.

Section 266 of the Ontario Education Act deems an OSR to be “privileged for the information and use of supervisory officers and the principal, teachers and designated early childhood educators of the school for the improvement of instruction and other education of the pupil.” It also explicitly states that an OSR is not admissible in evidence without parental consent.

In the prior application (which involved the same parties), the board had used the OSR in its response. This led the applicant to seek an order prohibiting the respondent from further relying on the OSR. The Tribunal denied the applicant’s request and, instead, held that it would dismiss the application as an abuse of process unless the applicant provided a consent. The applicant withdrew its application and filed a subsequent application that directly attacked the board’s use of the OSR, which the applicant alleged was discriminatory and a reprisal.

The Tribunal held that the board’s actions were absolutely privileged. It said:

The entire Application in this case is based on statements made in the respondent’s pleadings and the pre-hearing disclosure of documents to the applicant by the respondent in the course of a proceeding before the Tribunal. The respondent’s impugned statements and actions were thus clearly made and/or performed on occasions of absolute privilege. The applicant therefore cannot rely on them to found a claim under the Code. The Application must be dismissed on this basis alone.

The Tribunal also held that there was no reasonable prospect that the applicant would succeed on the merits.

GA v York Region District School Board, 2012 HRTO 1787 (CanLII).