E-mails sent to in house counsel for “simultaneous review” not privileged

Master Short of the Ontario Superior Court of Justice issued a decision on December 21st in which he held that e-mails merely copied to in house counsel were not subject to solicitor-client privilege. Here is the principle Master Short endorsed:

If the document was prepared for purposes of simultaneous review by legal and non-legal personnel, it cannot be said that the primary purpose of the document is to secure legal advice.

The idea that a communication for “simultaneous review” by legal and non-legal personnel is not privileged seems too broad and should be understood based on the facts in this case, which involved a standing order to copy in house counsel on all correspondence related to a business conflict (with significant legal ramifications) so counsel would be “in the loop.” If a communication goes “to” counsel and “to” another business official in the context of an ongoing advisory relationship pertaining to a matter, the inference about the purpose of the communication is significantly different than if counsel is merely copied. Barring other facts, the communication ought to be privileged.

Humberplex v. TransCanada Pipelines, 2011 ONSC 4815 (CanLII).

FCA says successful candidates’ employment history not accessible under ATIA

The Federal Court of Appeal has just published a decision it issued back in September in which it held that information submitted by successful applicants in federal public service job competitions is not accessible under the Access to Information Act.

Records containing the personal information of others are generally not accessible to the public under the ATIA. The issue in this case was whether information about candidates’ experience in other federal public service positions is accessible because such information is excluded from the definition of personal information based on section 3(j) of the Privacy Act. Section 3(j) deems that personal information does not include:

information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including (i) the fact that the individual is or was an officer or employee of the government institution, (ii) the title, business address and telephone number of the individual, (iii) the classification, salary range and responsibilities of the position held by the individual, (iv) the name of the individual on a document prepared by the individual in the course of employment, and (v) the personal opinions or views of the individual given in the course of employment

The Court held that section 3(j) applies to information about a federal public service position and that (in the context) employment history information and educational history information submitted by candidates is more about a person than about a position. The Court described the information as being “an individual’s personal assets” in the context.

Mr. Nault has filed an application for leave to appeal to the Supreme Court of Canada.

Hat tip to AMiNA.

Nault v. Canada (Public Works and Government Services), 2011 FCA 263.

BCCA dismisses appeal of successful claim for privacy breach

On December 12th the Court of Appeal for British Columbia dismissed an appeal of a November 2010 award of damages for defamation and breach of privacy.

The $40,000 award was based partly on a number of publications made by an ex-husband about his ex-wife that the British Columbia Supreme Court held were defamatory and unjustified. The Supreme Court also upheld a privacy claim based on the ex-husband’s use of e-mail communications he obtained from an old home computer and distributed for the purpose of scandalizing his ex-wife.

The Court of Appeal dismissed the appellant’s procedural grounds for appeal without comment on the merits.

Nesbitt v. Neufeld, 2011 BCCA 529 (CanLII).

Federal Court protects CJC’s “fact finder” report

On December 13th, the Federal Court held that a report prepared by Professor Martin Friedland to the chair of a judicial conduct committee was subject to solicitor-client privilege and therefore not to be filed in a judicial review of the chair’s decision to dismiss a complaint.

Although Professor Friedland was retained under Canadian Judicial Council policy to make “further inquires” into a judicial conduct complaint – a fact-finding role in its essence – the Court held that his communication to the chair was best considered to be legal advice given Friedland’s status as a lawyer and the legal context for his communication. It said:

I agree with counsel for the CJC that for an investigator to be able to “attempt to clarify the allegations against the judge and gather evidence which, if established, would support or refute those allegations”, to quote from the Complaint Policy, he or she must know the legal elements of the specific allegations and of the notions of “judicial misconduct” and “incapacity” more broadly. In the case at bar, for example, Mr. Slansky alleged in his 16-page letter, bias, abuse of office, improper motive and knowingly acting contrary to the law. For the investigator to determine whether there is evidence that would support these allegations, he or she must be able to determine the materiality of the evidence. This is fundamentally a legal exercise, as it requires an assessment of whether there is a probative connection between the facts to be proved and the facts in issue as determined by the substantive law. Relevance and materiality are determined by the trier of law in a court proceeding, whereas the weight to be given to that evidence is for the trier of fact (Bryant, Lederman and Fuesrt, The Law of Evidence in Canada, pp 56-58, ss 2.49-2.50). Once again, it was essential for the investigator to be well versed in the principles of substantive law and evidence, to be in a position to assess whether the examples provided by Mr. Slansky in support of his complaint, amount to mere errors of law that are better left to an appeal court or whether they do raise, when considered in isolation or as a whole, the sort of concerns put forward by Mr. Slansky…

In light of the foregoing, therefore, I agree with CJC that counsel could only gather and examine relevant facts and present his or her findings and analysis through a legal framework or analysis. There is no doubt in my mind that Professor Friedland was retained by the CJC in his professional capacity as a lawyer, with the intention of providing assistance through his legal knowledge and analysis.

The Court also held that privilege applied to the entire report, making clear that the common law generally does not contemplate the severance and partial disclosure of a privileged communication. The Court also held that Professor Friedland’s report was subject to public interest privilege given the special need to encourage full and frank participation in the investigation process.

Slansky v. Canada (Attorney General), 2011 FC 1467.

Ontario Commissioner Issues Significant Order on Custody or Control of University Records

On November 7th, the Information and Privacy Commissioner/Ontario issued a very significant order for Ontario universities. It held that the IPC has exclusive jurisdiction to decide whether a record is in the custody or control of a university in the context of an access request and created a principle-based framework to assess whether records possessed by faculty members are in the custody or control of a university.

The matter relates to a very broad access request that was made to the University of Ottawa immediately after universities came under FIPPA in 2006. The University made a broad collection request of faculty members that led to a grievance by the University’s faculty association (AUPO) that Arbitrator Philip Chodos upheld in 2008. Arbitrator Chodos held that the University violated its faculty agreement by sending the collection request. In May 2009, Arbitrator Chodos issued a second order in which he endorsed a proposal by the association that suggested only a limited number of faculty records were under the custody or control of the University. After this decision, the University denied the request with reference to the Chodos award and on the basis that it had no responsive records. The requester appealed to the IPC.

Adjudicator Smith of the IPC made two important findings.

First, Adjudicator Smith held that the IPC has exclusive jurisdiction to decide whether a record is in the custody or control of a university in the context of an access request. She said:

Applying the two-part test in Weber, it is clear that the legislature intended that issues arising from requests and appeals under the Act be determined by the head, and on appeal, by the Commissioner, and not by a labour arbitrator. Considering the governing legislation (that is, the Act) as applied to the dispute in the relevant factual matrix, as outlined in the foregoing analysis, and bearing in mind that the arbitrator’s authority only arises under the collective agreement, an instrument that is not determinative of the issue of custody or control, I find that, in the context of an access- to-information request made under the Act, the Commissioner has the exclusive jurisdiction to determine this issue.

Second, Adjudicator Smith created a principle-based framework to assess whether records possessed by faculty members are in the custody or control of a university. She said:

Accordingly, I conclude that the arbitral awards are not determinative with respect to the custody or control of records that may be responsive in this case. Rather, the determination is to be made based in the principles enunciated in this order. The significant conclusions I have reached in this regard are:

1. records or portions of records in the possession of an APUO member that relate to personal matters or activities that are wholly unrelated to the university’s mandate, are not in the university’s custody or control;

2. records relating to teaching or research are likely to be impacted by academic freedom, and would only be in the university’s custody and/or control if they would be accessible to it by custom or practice, taking academic freedom into account;

3. administrative records are prima facie in the university’s custody and control, but would not be if they are unavailable to the university by custom or practice, taking academic freedom into account.

Based on these findings, Adjudicator Smith ordered the University to request that association members produce responsive records that are in the University’s custody or control, taking into account the three stipulated criteria. She also suggested that the University require faculty members to create “lists or indices of records or portions of records for which the question of custody or control may be in dispute, including a brief explanation of why a record or records would not be in the university’s custody or control.”

This is complicated and requires further thought. One question I have is whether the recognition of academic freedom in the second “custody or control criterion” is likely to satisfy the faculty association and dissuade it from pursuing judicial review. Another is about the potential effect of the exclusive jurisdiction finding. What if a faculty member takes a position on custody or control and refuses to produce a record for processing? Under the IPC’s approach that dispute will seemingly raise an issue about custody or control under FIPPA, but how can it not arise out of the collective agreement? We might look to a labour arbitrator response to this question in time. And why does a university’s right of access – a right arising out of employment – have anything to do with the FIPPA custody or control standard anyway? Finally, this illustrates the high costs of mixed-use information systems. Consider the extreme cost of the indexing exercise proposed by Adjudicator Smith, all borne out of a need to protect academic freedom and faculty confidentiality because information of different kinds is intermingled on a single system. Is it really the case that academic freedom cannot coexist with a university right of access that’s necessary for a legitimate purpose?

University of Ottawa – Order PO-3009-F (November 7, 2011).

Information About Landlords not Personal Information

On September 30th the Ontario Superior Court of Justice held that certain information about residential landlords was not their personal information in the circumstances.

The issue arose in an application that challenged a municipal by-law requiring landlords to obtain licenses for residential rental units. The by-law required landlords to submit information in support of a license (including name, telephone number and address information). The by-law also required a copy of an issued license (which included similar information) to be posted. The applicants argued that the by-law conflicted with the Municipal Freedom of Information and Protection of Privacy Act.

The Court held that MFIPPA’s privacy protection part was not engaged because the information at issue was information that identifies an individual in a business capacity rather than personal information. Justice Leitch explained:

In my view, landlords who lease Rental Units are engaged in business whether or not the landlord is an individual leasing a Rental Unit in his own home or a corporate landlord leasing units in a large apartment building. Both landlords are operating a business. As a result, I am satisfied that the Licensing By-law does not conflict with the provisions of the MFIPPA which protects personal information because the information requested comes within the exclusion set out in s. 2(2.1) of MFIPPA. It is contact information that identifies the individual in a business capacity.

It appears this was the same finding reached by the Information and Privacy Commissioner/Ontario in a previously decided privacy investigation report that dealt with the by-law. The IPC intervened and argued that the Court should not re-decide the issue or, alternatively, adopt the IPC’s finding. The Court rejected the IPC’s argument because of the IPC’s limited jurisdiction to hear and decide privacy complaints.

London Property Management Association v. City of London, 2011 ONSC 4710 (CanLII).

Preserving Evidence of Internet Publication

I presented on preserving evidence of internet publication today at our semi-annual internal professional development session. I used the session to promote immediate, periodic and broad preservation because when content comes down from social media sites it is as good as lost. My worry is that objectionable words will be preserved without also preserving the relevant context thereby impeding prosecution by opening up a spoliation issue.

Slides below, with annotations over at Slideshare. Thank you to articling student Matthew Scott for assistance on this.

Newfoundland CA Says Commissioner Can Review Documents Subject to S-C Privilege Claim

On October 26th, the Supreme Court of Newfoundland and Labrador (Court of Appeal) held that the Newfoundland Information and Privacy Commissioner can require a public body to produce records claimed to be exempt from public access as subject to solicitor-client privilege.

The Newfoundland Access to Information and Protection of Privacy Act gives requesters a right to seek review of an access decision either through the Commissioner or the Trial Division. In the event of a review, the Commissioner may require production of records, and a public body has a corresponding duty under section 52(3) to provide responsive records “notwithstanding another Act or a privilege under the law of evidence.”

The Court held that section 52(3) allows the Commissioner to compel the production of records claimed to be exempt from public access as subject to solicitor-client privilege. It relied on the provision’s ordinary meaning interpreted in light of legislative purpose, which it said was “to provide for an independent review officer, as an alternative to the courts, who can undertake a timely and affordable first level review of all information request denials.”

The Court also made the following notable comment about the exercise of discretion to demand a review of documents subject to a privilege claim:

If the Commissioner were to receive a letter (or possibly an affidavit) from a senior Justice official indicating that all materials were provided as per an access to information request save for documents containing legal advice (identified by subject matter, date and solicitor) could not the Commissioner reasonably rely on that to conclude that the documents in question are in fact privileged? Such an arrangement, it seems to me, should operate to deal with the vast majority of cases. And, in the few where the Commissioner felt compelled to pursue matters further, the discussion would be focused in a way that should assist reasoned consideration.

The key to all this is good faith in the exercise of authority. With that comes mutual trust, by the Commissioner that senior Justice officials are being truthful and by Justice officials that the Commissioner will not unreasonably call for the production of legal opinions and advice. Cooperation should be the rule and litigation very much the exception.

Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA 69 (CanLII), retrieved on 2011-11-1.

Arbitrator Okays Recording of Investigation Interview

On July 18th, British Columbia Arbitrator Colin Taylor dismissed a grievance about recording an interview with an employee who was the subject of investigation. He held that recording an interview (openly) did not violate the employee’s right to representation or any other collective agreement right.

There are mixed views about the wisdom of recording interviews, with some believing that recording has a negative effect on candor that outweighs its benefit.

Teck Coal (Fording River) and USW, Local 7884 (18 July 2011, Taylor).

Do employers have a positive duty to protect employee reputations?

Employers are now often confronted by employees who ask for help in addressing defamation linked in some way to their work responsibilities.

Employers do have a duty to provide a safe and harassment free workplace, but this is a very different concept than a duty to protect an employee’s reputation. I just stumbled across a Federal Court case issued in June in which Justice Zinn says the latter duty does not exist. He says:

I agree with the Attorney General that the Adjudicator expanded the duty of good faith beyond the parameters set out in Wallace. He created a new duty according to which an employer has a positive obligation to protect an employee’s reputation. Such a positive duty does not exist at common law, and no authority was provided by the Adjudicator in support of it. Requiring an employer to take certain positive actions in response to reports in the press which are alleged to damage the reputation of one of its employees does not fall within the Supreme Court’s determination in Wallace that an employer has an obligation “to be candid, reasonable, honest and forthright with their employees.”

More controversially, Justice Zinn suggests rather categorically that an employer can stop an employee from speaking out to clear his or her own name so it can speak to the media (about controversy caused by the employee) in its own single voice.

Canada (Attorney General) v. Tipple, 2011 FC 762 (CanLII).