HRTO Orders Applicant to Consent to Use and Disclosure of Student Record for Proceeding

On August 5th, the Human Rights Tribunal of Ontario held than an applicant implicitly consented to the use and disclosure of information in his Ontario Student Record by putting the information into issue in his application.

Section 266 of the Ontario Education Act deems the OSR to be privileged subject to student or guardian consent. The applicant (through his next friend) referred to information in his OSR in his application and expressed an intention to use information in his OSR in pursuing his application. The applicant was not, however, forthcoming with consent to allow the responding school board to use the OSR in it’s defence.

The Tribunal did not entertain the board’s argument for a finding that the section 266 privilege is waived in whole upon the filing of an application by a student in respect of educational services. It did articulate a principle that supports implicit consent to use and disclose relevant information in an OSR in support of a defence:

Based on the particulars in the Application, as well as the applicant’s own expressed intention to rely on parts of the OSR, the applicant has implicitly consented to at least some use and disclosure of the OSR by the respondent in order to defend itself. However, in subsequent correspondence and submissions the applicant’s next friend explicitly seeks to place a number of conditions on her consent. I am not satisfied that the restrictions she seeks to place are necessary to protect the privacy of the OSR documents and information. The respondent is not receiving documents, through a disclosure process, in which it otherwise has no interest or responsibilities. It is still subject to its obligations under the Education Act. To the extent that it may use or disclose documents or information from the OSR for the purposes of the proceeding before the Tribunal, it is also subject to the Tribunal’s Rules on the confidentiality of documents. The applicant cannot rely on documents and information from the OSR in the Application, while seeking to prevent the respondent from using the same in order to present its case. I find it necessary, for a fair and just proceeding, for the respondent to be able to use and disclose documents and information from the OSR, subject to the time limitation addressed below.

…

Where an application is filed which claims discrimination in educational services and it is apparent that a respondent school board must use and disclose information from an OSR in order to defend itself, including to file a full response, the Tribunal will consider, on request from such a respondent, whether the application should proceed unless an applicant provides explicit consent to use and disclose information that information.

The Tribunal ordered the applicant to provide explicit consent for the use and disclosure of information falling within a relevant time period, failing which it would consider dismissing the action as an abuse of process.

T.S. v. Toronto District School Board, 2011 HRTO 1471 (CanLII).

Ontario Court Requires Notice to Non-Parties Whose Privacy Interests at Stake in Production Dispute

On August 15th, the Ontario Superior Court of Justice deferred a motion for production of medical records so two non-parties could be given notice of the production motion.

The action was by a patient of a psychiatric facility who was allegedly assaulted by two other patients. The facility resisted production of records in its custody based on a concern for the privacy of the non-parties, but also did not dispute the records’ relevance.

Mr. Justice Ricchetti ordered production of occurrence reports that recorded facts pertaining to the alleged assaults without requiring notice. Ricchetti J. suggested that the records contained information that was as much about the plaintiff as the two non-parties. He also recognized the occurrence reports were not about the provision of care though they were placed in both of the non-parties’ patient records. Though these factors led him to order production without notice to the non-parties, Ricchetti J. did order the non-parties’ attending physicians to be given notice and an opportunity to object based on criteria for doing so set out in the Mental Health Act, ordered redaction of names and identifying information and ordered receiving counsel to safeguard copies of all information received.

Regarding production of other medical records, Ricchetti J. ordered that notice be given to the affected non-parties. He said:

Rule 30.10 of the Rules of Civil Procedure requires that any motion seeking third party disclosure be on notice to the third party. The real third party in this case are the patients. The purpose of this rule is to ensure that the party whose documentation is to be disclosed has an opportunity to object or consent or request some limitation on the disclosure. This purpose, in my view, is defeated if the “real” owner or person with the “real” interest in the disclosure of the documentation or information is not given notice.

I cannot imagine why a request for disclosure of the patient’s medical records containing PHI should not be on notice to the patient. It is the patient’s PHI, protected by the PHIPA, that disclosure is sought.

…

In my view, where an order is sought under s.41(1)(d) of the PHIPA or s.35(5) of the MHA, such an order should be obtained, if at all possible, on notice to the patient whose record is sought and not just the custodian of the patient’s medical records containing the PHI.

This is a sensible application of the power over procedure. Note, however, that health information custodians are authorized under PHIPA to disclose personal health information for the purpose of providing production without any notification requirement. Is notification “if at all possible” in the event of dispute too conservative and too costly? Should courts require health information custodians (who are accountable to privacy regulators under statute) to attempt to negotiate a reasonable scope of production and reasonable protective terms before stepping in? These are important questions that are yet to be answered.

M.L. v. Homewood Health Centre Inc. et al, 2011 ONSC 4790 (CanLII).

Social Media Risks and Rewards at AMO 2011

I presented yesterday at the Association of Municipalities of Ontario conference with Brian Lambie of Redbrick Communications. Brian gave great practical insight on the messaging municipalities should strive for in their social media initiatives and I discussed the kind of control structures that are necessary for reaping the benefits of social media without excessive risk.

This wasn’t new content for me, but the audience – about 70% elected officials – was. This led to a rewarding Q&A.

A Kingston councilor noted that Kingston has adopted a “no handhelds in council rule,” a concept that received endorsement from another councilor in the audience despite his acknowledgement that the pressure to deal with handheld communications in long meetings can be significant. I tied the rule back to a council’s interest in decorum, transparent dealing and perceived transparent dealing.

A mayor of a different Ontario municipality raised a good question on creating separate social media profiles for use in support of election campaigns. Although an incumbent councilor’s legal status does not formally change into and out of campaign periods, strict campaign finance requirements may justify completely separating communications made in the capacity of office holder from communications made in support of a campaign. This is a good issue that I was not aware of prior to His Worship’s input.

Thank you to AMO and to Brian and his staff, who created the slides below. I’ve also linked to the State of Victoria’s wonderful social media awareness video, an example I used to make the point that municipalities might want to lead with an internal communication campaign rather than a “policy heavy” approach.

Ontario Court of Appeal Relieves Media of Elevated Costs Order in Privacy Dispute

The Ontario Court of Appeal reduced a full indemnity costs award made against the Toronto Star on Tuesday. The motion judge made the extraordinary costs award against the Star because it was a “media giant” that had unsuccessfully taken on an individual who was trying to protect his personal privacy. The Court of Appeal held that the Star’s action in seeking to publish potentially embarrassing personal information about the individual was not conduct worthy of sanction even though it affirmed a finding that the the Star was motivated, in part, by its private interests. Though notable to readers of this blog, given how it was handled this case is arguably more about the exceptional character of elevated costs orders than about media rights and privacy.

Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555 (CanLII).

E-Discovery, Production and Non-Party Privacy

I presented at the Canadian Bar Association Legal Conference and Expo on Tuesday on “e-discovery, production and non-party privacy.”

I started by stating that:

the litigator’s role is to help the trier of fact uncover the truth;
the litigator takes information and uses it as evidence to do so; and
it is essential to the administration of justice that this use of information be unfettered.

That stated, I asked the audience to not to lambaste me for preaching that litigators ought to take steps to protect privacy in going about their work. From presenting and from listening to co-panelist Patricia Kosseim launch the OPC’s new “PIPEDA and Your Practice” handbook for lawyers it is clear to me that many of the privacy issues facing litigators have little to do with litigation and civil procedure itself.

My slides are below.

IPC/Ontario says personal information received on an unsolicited basis is not “collected”

The Information and Privacy Commissioner/Ontario issued a notable privacy investigation report on July 8th. It held that a municipality did not “collect” personal information under MFIPPA by receiving unsolicited correspondence. Investigator Ratner said:

I have considered the City’s position. Sections 31 and 32 of the Act both make reference to personal information having been “obtained or compiled” by an institution. In my view, in drafting the Act, the legislature intended the meaning of the term “obtained or compiled” to be different from the term “collect,” which is employed in section 28. Had the legislature intended sections 31 and 32 to only apply to personal information that is collected, it would have used that terminology in those sections.

I note that personal information may come into the custody or control of an institution in a variety of circumstances: it may be actively solicited, it may be passively received, or it may be created by the institution. In my view, the term “obtained or compiled” is intentionally broad, and is intended to accommodate the various ways in which an institution may acquire personal information. This analysis supports the notion that the term “collect” is intended to be interpreted narrowly so as not to apply to situations such as this where correspondence is sent to institutions voluntarily and without solicitation.

Vaughan (City) (Re), 2011 CanLII 47522 (ON IPC).

Court Directs Employer to Give Former Employee Access to E-Mails for Privilege Review

On June 29th, Justice Moir of the Supreme Court of Nova Scotia directed a means by which parties to a wrongful dismissal action could deal with privileged communications sent and received by the plaintiff on his former employers’ work system. He directed a review by the plaintiff and his counsel, either at the defendant counsel’s office or elsewhere with an undertaking by plaintiff’s counsel not to make copies.

Justice Moir’s order also includes a thorough discussion about the discovery of facts obtained by a witness in a communication that is subject to litigation privilege.

Hat tip to Peg Duncan!

Saturley v. CIBC World Markets Inc., 2011 NSSC 310.

Ontario Arbitrator Okays Collection of Driver’s License Numbers for Driving Safety Program

On May 11th Arbitrator David McKee held that an employer could collect driver’s license numbers to check the driving records of employees who drive personal vehicles in the course of their duties.

Arbitrator McKee had previously allowed the employer to conduct driving record checks on employees who drive company owned vehicles. In this decision, he holds that it is reasonable to conduct the same check on employees who drive personal vehicles in the course of their duties (and who are reimbursed by the employer for doing so) regardless of the extent to which they actually drive. Arbitrator McKee bases his conclusion on a contextual balancing of interests that stresses the following factors:

the information at issue (the DL number and information in the driving record) is “not extraordinarily sensitive”
the employer had taken steps to protect employee privacy in administering the program (i.e., by using an external service provider to conduct the check and only receiving driving record information for a class of “high risk” drivers)
the employer established a legitimate, albeit general, interest in promoting safe driving and a safety-conscious public image
the employer did not discipline employees with bad driving records but, rather, used the information to mitigate risk through training and management

Arbitrator McKee’s approach is pragmatic. Citing Justice Whitaker’s recent Jones v. Tsige decision, he says, “There is no legal doctrine that gives a particular weight or priority to everything that can be characterized as a privacy right.”

Union Gas Ltd. v. C.E.P., 2011 CarswellOnt 7295.

Ontario Court Says Open Court Principle Applies to Record Filed Before Charges Withdrawn

On July 18th the Ontario Court of Justice granted several media organizations access to a DVD that a criminal defendant filed before charges against her were withdrawn by the Crown. Justice Wake explained that the open court principle can apply to records that are not considered in a judicial proceeding if public access would support a greater understanding of the administration of justice.

The Crown charged the defendant with assault in relation to her interaction with the police. She received a “cellblock DVD” as part of the Crown disclosure, and filed it in furtherance of a stay application, though apparently it was not properly incorporated by reference into an affidavit. The Crown withdrew all charges after noting in open court that he had reviewed evidence of the defendant’s treatment while in police cells.

Justice Wake’s analysis focused on whether the open court principle applied to the DVD. He first held that the irregularity in the manner of filing the DVD was too technical a basis for denying access. He then held that the open court principle applied to the DVD even though it was not considered in a judicial proceeding. He said:

Clearly Goudge, J.A. [in CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar)] drew a distinction between these two objectives and noted that in cases subsequent to MacIntyre “the court has made equally clear how important public access is to the second objective, the greater public understanding of the administration of justice”.

Relying on this analysis, I have concluded, with respect to the DVD, that public access to the workings of the courts and a greater understanding of the administration of justice does not necessarily require that the DVD have been considered in a judicial proceeding or have been subject to a judicial act. The DVD is directly related to a judicial proceeding. It was clearly the intention of Ms. Carr’s solicitor to have it filed for the use of the court and in support of her application to stay proceedings on the basis of what it disclosed. The fact that the Crown, Mr. Wadden, withdrew the charges after viewing what I can safely presume to have been a copy of the same DVD (otherwise the Ottawa Police Service would have produced one copy for the Crown and a different copy for disclosure purposes for the defence which would have been odd, ultimately discoverable and thus unlikely) makes the DVD a highly relevant item in these protracted proceedings.

Justice Wake stressed that he was not expanding the open court principle but, rather, applying it in novel circumstances. He stressed that the criminal proceeding had concluded, that DVD appeared to be “central” to the Crown’s decision to withdraw and that the proceeding (prior to withdrawal) had involved significant expenditure of court resources.

R. v. Global News, 2011 ONCJ 381.

Another Ontario Video Surveillance Case. So what!?

On June 21st Ontario arbitrator Randi Abramsky held that an employer must meet a (relatively forgiving) reasonableness standard to adduce surreptitious video surveillance evidence.

I’ve been following this issue (see here and here, most recently), but am wondering the point. I find the split in the arbitral jurisprudence very frustrating and somewhat discrediting to our system of arbitral justice. I doubt our courts would take the unorthodox and interventionist “tiebreaker approach” recently taken by the New Brunswick Court of Appeal, but this preliminary issue (which would be reviewed on the correctness standard) needs to find its way to court.

St. Lawrence Cement Inc. and International Brotherhood of Boilermakers, Local D366 (21 June 2011, Abramksky).