Author: Dan Michaluk

AMTCO Presentation and Municipal Information Governance

I presented with Alex Cameron of Fasken’s today at the Association of Municipal Clerks and Treasurers of Ontario “Municipal Information Access & Privacy Forum.” Alex and I have done this privacy and litigation presentation together before, but today we were drawn into some good issues about municipal information governance by a very sophisticated audience.

For me, today’s light bulb was about how good information governance relies so heavily on separating electronic communications based on their purpose: ideally, work communications should flow separately from personal communications which should flow separately from “constituency communications” (for councilors).

The well known City of Ottawa decision – in which the Divisional Court held that personal e-mails are not subject to our provincial access legislation – is certainly liberating to public servants who are personal users (who isn’t?), but it invites a mixing of personal and work communications in a way that makes municipalities’ ability to govern communications more challenging. This recent municipal privacy case is an example of a governance breakdown related to a difficult to characterize e-mail, and was raised today in a manner that highlighted the difficulties with mixed flows.

One message today was that municipalities have to work very hard to assert their right to govern the mixed purpose communications on their systems. With employees, this has been done for years through acceptable use policies, such policies slowly evolving to be more express about management rights. As the discussion today highlighted, councilors cannot be so easily controlled, which lead some audience members to share great insight on what communication services to offer councilors and on what terms. I’m afraid I don’t a blueprint to recommend, but as I began, practices that encourage the separation of communications by purpose will result in great benefit.

Slides below.

Ontario CA on computer searches – broad access and targeted searches endorsed

Yesterday the Ontario Court of Appeal issued a judgment in which it held the police violated section 8 of the Charter by proceeding with a lawfully authorized search of a personal computer after finding evidence of a crime that was not within the scope of authorization.

The police were granted a warrant that permitted the search of a computer to find evidence of fraud. In the course of searching the computer for such evidence, they found images believed to be of child pornography. After seeking legal advice, the police continued and found videos believed to be of child pornography.

The accused brought a Charter application. One issue was whether the broad authorization to search the computer (without date or file type limitations) was reasonable. Another was whether, having found the images, the police should have stopped to obtain a second warrant.

On the scope of the warrant, Justice Blair accepted arguments by the Crown about the need for a forgiving rule because of the challenges in conducting a computer search. He said that “the language used to authorize computer searches may need to be relatively broad in order to cope with the practical realities of an ever-changing and developing age of technology” and held the warrant at issue was reasonable on its face because it precisely defined the kind of evidence to be sought (i.e., evidence of fraud).

Significantly, Justice Blair suggested that the need to authorize access in broad terms justifies the imposition of a duty to search with care. The following are the most relevant passages:

Thus, authorizing a search of the contents of a computer is not unlike authorizing a search of another “place” or of a more expansive search of the same “place.” There seems to me to be no reason in principle why the state should be any more entitled to roam around through the contents of a person’s computer in an indiscriminate fashion than it would be to do so in a person’s home without further authorization.

The police have available to them the necessary software, technology and expertise to enable them to tailor their searches in a fashion that will generate the information they seek, if it exists, while at the same time minimizing the intrusion on the computer user’s privacy rights in other information stored on the computer. Sergeant Rumnyak testified that the EnCase software used in this case permits the police to view all data and all files contained on the computer but that the police do not normally look at all files in the course of an investigation; they focus on those they think will generate the evidence they are looking for. That is as it should be.

Consistent with this protective view, Justice Blair held that the police may seize incriminating evidence that is beyond the scope of a warrant if it is found, but must stop and obtain a warrant before continuing search for additional incriminating evidence. He therefore held that the police violated section 8 by failing to stop upon finding the accused’s incriminating pictures. According to Justice Blair, they should have sought a warrant.

On first read, it seems like the suggested duty to conduct a targeted search (my words) creates a good basis for scrutinizing computer searches and is likely to put significant pressure on law enforcement to undertake a logical, minimally intrusive search. I’m also curious whether the search process is as tidy as the summary of evidence above makes it seem.

R. v. Jones, 2011 ONCA 632.

Ontario Arbitrator Treats the Occupational Health File as a Locked Box

On August 31st, Arbitrator Russel Goodfellow issued an order relating to the production of a grievor’s occupational health file before a pending arbitration hearing. In doing so, he opined as follows:

The employee – in taking on the employment relationship with Telus, in seeking benefits under the collective agreement that applies to her, in providing medical documents to Telus Health directly or through her health care providers, in tacitly agreeing to the collection and/or creation of such documents from and by others, and/or in seeking to enforce her statutory rights to accommodation – does not cede ultimate control or dominion over the documents or the information that they contain. The information remains, in a fundamental sense, hers: see eg. McInerney v. MacDonald, [1992] 2 S.C.R. 138. To paraphrase the Court, the fact that the individual may have chosen, or have even been required, to make personal information available to others in order to obtain certain benefits does not mean that she has abandoned her “basic and continuing interest in what happens to this information, and in controlling access to it.” The grievor retains fundamental control over this “highly private and personal” information that goes to her “personal integrity and autonomy”. The requirement of consent is real, it is not a matter of convenience or superstition, and there is no suggestion, for example, that the employee has somehow waived that requirement here…

Before leaving this issue, I would comment that it is unfortunate, but perhaps understandable in the light of the parties’ history, that this matter could not have been resolved on agreement. There is a rapidly developing convention, at least amongst large unionized employers in this province, which I wholeheartedly endorse. That convention is for the entire file to be requested by the union, just as the Union did here, with the consent of the grievor, sometimes from the Occupational Health Department of the employer (where that function is performed “in-house”) directly, and for “Occ.Health” to then hand over the file, in its entirety, to the union. Sometimes, though less often, it is the employer that initially seeks production of the file, and that request is typically made either by way of a request by the employer for the grievor’s consent or for an order from the arbitrator made to Occ. Health. Sometimes the two processes go hand in hand.

Though this framework has been endorsed by at least one other Ontario arbitrator, I question whether there is really such a convention and posit that most Ontario employers would take a similar position to that taken by the employer in this case – that an occupational health file is a company file that contains sensitive employee personal information and may be used (and accessed), pursuant to prior obtained consent, for the purpose its contents were collected.

Administering employee medical information in a special file, separate from other employee information, has an important security-related benefit; it creates a “privacy screen” to ensure that access to sensitive information is limited to the occupational health staff who require access for routine use. It should not preclude employer access for non-routine uses that are consistent with the purpose for establishing the file, including non-routine uses such as preparing for arbitration. If employers are required to obtain express consent to prior to accessing their own occupational health files for such a purpose, they face a greater restriction than health care providers face in accessing personal health information that is regulated by the Personal Health Information Protection Act. (See ss. 37(1)(h) and 41(1)(a).) This can’t be correct.

The stakes may be low in dealing with pre-hearing preparation and production (which is probably why some employers seek express consent), but other legitimate uses of occupational health files (such as workplace risk management) cannot be frustrated by a view that regards an important employer file as a locked box that can only be accessed by persons outside of the occupational health department with express employee consent. Arbitrators have been tempted to treat occupational health files as akin to a health care files, but such a conception can cause internal confusion, conflict between occupational health staff and line management and, in construction and heavy industry, can lead to deadly consequences.

Telus Inc v Telecommunications Workers Union, 2011 CanLII 57030 (ON LA).

[The views expressed are mine alone.]

British Columbia Arbitrator Says Collection of Motor Vehicle Records Unreasonable

On August 12th, British Columbia Arbitrator Heather Laing declared unreasonable a driving safety program that entailed the annual collection of motor vehicle records to identify and address high risk drivers.

Arbitrator Laing held that the program engaged employee privacy rights and that the employer – whose vehicle incident record was actually improving – had not justified its use in light of less intrusive options for maintaining and improving driving safety (such as skills training). She distinguished Ontario Arbitrator David McKee’s recent Union Gas cases as dealing with access to Ontario driver abstracts, which are available to the public without consent.

This case will be upsetting to employers for its suggestion that employers need to prove a safety problem to justify any collection of personal information. Arbitrator Liang finds that the non-public nature of British Columbia motor vehicle records (which include height, weight and 5-year driving record information) is significant, but does not analyze the meaning of the information itself in making a reasoned conclusion about “sensitivity.” There is ample Charter jurisprudence that establishes the driving public sacrifices a great deal of privacy in exchange for the privilege operating a motor vehicle on public roadways that weighs in favour of “non-sensitive” finding. Collection of use of non-sensitive employee personal information for bona fide safety-related purposes should not be unreasonable.

Spectra Energy v. Canadian Pipeline Employees’ Assn. (Motor Vehicle Record Grievance), [2011] C.L.A.D. No. 266 (H. Laing) (QL).

Law Firm Publication Draws Damages Award for Breach of Privacy

On September 13th the Federal Court ordered a law firm to pay $1,500 in damages for publishing an Office of the Privacy Commissioner of Canada decision letter and report of findings that contained an individual’s personal information.

PIPEDA allows some publicly available information to be used and disclosed without consent, including:

personal information that appears in a record or document of a judicial or quasi-judicial body, that is available to the public, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the record or document

The OPC arguably does not act as a judicial or quasi-judicial body in investigating privacy complaints nor are its decision letters and reports public, so the law firm could not rely on this exception.

Though the “related directly to the purpose” requirement is narrowing, law firms are more open to using and disclosing personal information contained in published court and tribunal awards in their publications. The OPC’s recently-published PIPEDA and Your Practice guideline for lawyers nonetheless establishes an anonymization “best practice”:

Ultimately, lawyers should be conscious of limiting the disclosure of any personal information they may have. As a best practice, lawyers preparing newsletters or giving presentations at conferences should give thought to anonymizing or deidentifying personal information in any case law or resources they rely on. Most times, the identity of an individual need not be disclosed in order to explain the legal reasoning underlying a decision.

Does your firm have a protocol in place to address this?

Here’s David Fraser’s post on the case. (David, you’re fast man!)

Girao v. Zarek Taylor Grossman Hanrahan LLP, 2011 FC 1070.

Ontario Biometric Timekeeping System Jurisprudence now Strongly Favours Employers

On August 29th, another Ontario labour arbitrator dismissed a biometric timekeeping system grievance. Arbitrator Susan Tacon dismissed the grievance on some rather strong evidence adduced by the employer, but did make the following general comment about the very conservative IKO Industries case (which the Ontario Superior Court of Justice – Divisional Court upheld as reasonable):

With respect, I also do not find the reasoning in IKO Industries, supra, compelling. The standard for establishing an “invasion” of privacy is set so low and the business rationale must be so critical to the company that no other system is possible. The test really espoused in IKO Industries, supra, is that any infringement of privacy, however minor, will outweigh a legitimate business rationale which is not essential to the continued operation of the company. In my view, that approach undermines the concept of proportionality, unduly weakens the management rights clause in practical terms and is not consistent with the weight of the arbitral jurisprudence. In any event, for reasons which will be given infra, the decision is distinguishable on the facts.

The weight of arbitral authority in Ontario now strongly favours the adoption of biometric timekeeping systems provided the chosen system has a number relatively common security features to protect against misuse and secondary use of biometric data and provided the chosen system does not invite a violation of any uniquely restrictive collective agreement terms. Employers who run through the security-related considerations with a checklist-like tool and seek input from counsel on the effect of their collective agreements will gain a very strong appreciation of the risks associated with adoption. In many cases, employers will be safe to proceed.

Gerdau Ameristeel v. United Steelworkers, Local 8918 (Biometric Scan Grievance), [2011] O.L.A.A. No. 405 (Tacon) (QL).

Well-Litigated Background Check Dispute Sent Back to the B.C. OIPC

On September 6th, the British Columbia Supreme Court allowed a judicial review application of a finding that the British Columbia Ministry of Children and Family Development breached British Columbia FIPPA by failing to make every reasonable effort to ensure the accuracy of personal information before using it to answer an background check inquiry.

This is a very well-litigated dispute about a communication made by the Ministry to a social services employer who contacted the Ministry, with consent, to check into the background of a new employee. The Ministry disclosed the existence of a complaint made against the employee. It also noticed some irregularities in its file, did a full review of the file (without going behind the file to make inquires) and rendered an opinion to the employer that the employee needed to be supervised when in contact with children.

The employee was terminated and has since been on a long campaign to seek redress. In May 2010, the British Columbia Court of Appeal dismissed the employee’s $520 million action against the Ministry and others as disclosing no reasonable cause of action. About a year earlier, the Court of Appeal heard an appeal of the employee’s privacy complaint and sent it back to the B.C. OIPC so the OIPC could consider whether the Ministry breached section 28 of B.C. FIPPA. Section 28 imposes a duty to make every reasonable effort to ensure the accuracy of personal information that is used to make a decision that directly affects an individual.

In reconsideration, the OPIC affirmed the employee’s complaint. It held that the Ministry had made a “decision” that engaged the section 28 duty and held that the Ministry had failed to make every reasonable effort to ensure the accuracy of the employee’s personal information. The OIPC explained:

In this matter, the evidence is clear that the social worker made no effort, let alone every reasonable effort, to ensure the accuracy and completeness of the information she relied upon to come to her interim decision recommending Mr. Harrison not be left alone with youth in his workplace. Her opinion was based in part on her belief that the matter had not been “properly” investigated. Yet she did not make a single inquiry of any one of the several Ministry employees who had had dealings with Mr. Harrison over the previous decade. To compound matters, she admitted that, when she made her recommendation concerning Mr. Harrison, it had been more than twenty-four years since she had worked in the field of child protection. This decision, based on allegations determined at the time to be without substance and warranting no further investigation, has led to consequences that cannot be remedied. …

In addition, it is not clear to me whether the Ministry has a strategy, policy or process dealing with the management of files concerning unsubstantiated or worse, uninvestigated, allegations of sexual (or other) abuse. It is however clear that those who have been subjected to the latter are in an unenviable situation in which there can be no successful outcome. Since no investigation ever takes place, the veracity of the allegation is not conclusively resolved. Yet no further investigation will ever take place, frustrating closure to the matter and leading to the possible loss of reputation or other harm.

The Court held that the OIPC erred by rendering its decision without considering the public interest in disclosure about potential threats to children and the Ministry’s duty to protect children under the CFSCA. It referred the matter back to the OPIC for resolution.

Harrison v. British Columbia (Information and Privacy Commissioner), 2011 BCSC 1204 (CanLII).

Alberta Court Lends Constitutional Protection to the “Cyber-Picket Line”

The Alberta Court of Queen’s Bench issued a remarkable privacy decision on June 30th that didn’t get much attention until David Fraser posted about it last week. (Thank you David.) Madam Justice Goss of the Court held that Alberta PIPA violates section 2(b) of the Charter because it doesn’t give organizations wide enough latitude to record and disseminate images of people at public social or political events.

Picketers often employ video cameras and still cameras, a practice thought by some to be a form of intimidation. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and evidence that the union had used images to attack individuals in a manner described in the Alberta OPIC order under review as follows:

As well, exhibits were entered showing that images of this Complainant’s face were included (which he stated was without his consent) in issues of the Union’s newsletter or strike leaflets, in one case superimposed over the head of a person driving a miniature train, associated with text which began “There goes [the Complainant] with his train full of scabs”, and in another case, superimposed onto a turkey. In a third image, in which Complainant C is seen leaning over a railing gazing down at the floor below, the associated text begins: “What is [the Complainant] thinking? Is it jumping? …” and continues with other comments related to the strike and the Complainant’s possible thoughts.

Madam Justice Goss suggests that this activity – and “ridicule” and “mockery” in general – does not warrant constitutional protection. She nonetheless holds that PIPA is too restrictive of expression in a free and democratic society because it restricts unions from engaging in “union journalism” relating to labour disputes and picket lines. While significant, Madam Justice Goss’s finding does preserve a rather fundamental limit on the “cyber picket line” (a term used by the union’s expert): the dissemination of images to ridicule, mock and intimidate can and should be restrained by applicable privacy legislation.

Of course, the decision has implications that go beyond the picket line. At its broadest, the matter raises a rather gargantuan issue about how much government can restrict the expression of information about things people do in public as a means of promoting and protecting personal privacy.

United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415 (CanLII).

Ont. C.A. Affirms Sealing Order to Protect Settlement Privilege Pending Agreement’s Approval

Today the Ontario Court of Appeal affirmed an order that sealed information about the amount of monies to be paid under a settlement agreement that was subject to court approval.

The order applied only to information about monies to be paid and not to the entire agreement. It also had a provision that allowed non-settling parties to obtain access to sealed information upon signing a confidentiality agreement to allow them to participate in the approval proceeding without encumbrance.

The Court held that the the order was based on the important interest in promoting settlement that is recognized by litigation privilege doctrine and that this interest was not outweighed by the interest in holding an open approval proceeding. It also held that the order was not over-broad.

Court approval of the proposed agreement was required under the Companies’ Creditors Arrangement Act. In making its finding, the Court said, “we leave to another day the issue of whether the privilege always attaches to other settlements requiring court approval, for example, class action settlements or infant settlements, where different values and considerations may apply.”

Hollinger Inc. (Re), 2011 ONCA 579.