IPC/Ontario Continues to Show Pragmatism in Dealing with e-FOI Issues

The Information and Privacy Commissioner/Ontario has thus far demonstrated a good deal of pragmatism in exercising its power to review the quality of FIPPA and MFIPPA institutions’ e-mail searches. On June 30th, for example, it issued an order in which a requester claimed that an institution ought to have retained an independent IT expert to search and retrieve responsive e-mails, including “erased e-mails.” Despite the requester’s perception of conflict, IPC Adjudicator Morrow upheld the institution’s search as “coherent, systematic and responsible” in the circumstances.

This demonstrates that the IPC will defer to a reasonable search process and, absent special circumstances, is not likely to order the use of an external “e-discovery vendor.” Note that the IPC has also endorsed the choice to use vendors, a choice which allows institutions to pass through 100% of the reasonable costs of search and retrieval (which is not the case for internal searches). For an example of a case in which the use of an external IT vendor led to a valid yet very high yet reasonable fee estimate see Order MO-2154 .

IPC Order MO-2634, 2011 CanLII 43653 (ON IPC).

Master McLeod Reminds Parties to Look Way Ahead in Planning for Production

“Even at the pleading stage parties should have an eye on what issues will be raised by the litigation and therefore what will be the scope of production and discovery.”

This statement in a June 24th judgement by Master McLeod seems so trite, but is a worthy reminder given production can be so challenging that it seems like an end in itself and given the new mandate in Ontario that demands parties collaborate to achieve a production process “that meets the needs of the litigation,” no more and no less. Master McLeod imposed a modest costs sanction on a party for failing to work to narrow its production, including by producing the most obviously relevant records first. In doing so, he stressed the need to draw a link from the start between pleading, production and proof:

A party might be forgiven for not anticipating the need for documents made relevant by the other party’s pleading but there is far less excuse for not anticipating the documents required because of the party’s own pleading.

Secondly, related to the above, I am driven to the inference that there is no readily identifiable subset of documents which Allen Vanguard used to reach the conclusion there was misrepresentation and fraud.

Master McLeod ordered the producing party to pay $7,000 for breaching production obligations and failing to meet the times set out in court orders. He also noted, “The question of recovery of costs imposed by ultimately unnecessary production and discovery is specifically reserved to the trial judge.”

Hat tip to Peg Duncan!

L’Abbé v. Allen-Vanguard, 2011 ONSC 4000 (CanLII).

NBCA Says Pre-Existing Alcohol Problem Not a Prerequisite to Random Alcohol Testing

Last Thursday the New Brunswick Court of Appeal issued a rather remarkable decision in which it held that employers who manage “inherently dangerous” workplaces do not require evidence of a pre-existing alcohol problem to justify random alcohol testing.

The decision is most remarkable for its approach. Specifically, Justice Robertson held that a great need for policy guidance, especially in light of conflicting arbitral jurisprudence, justified review on the correctness standard:

Certainly, the Supreme Court has yet to accord deference to an administrative tribunal with respect to questions of law umbilically tied to human rights issues: see Jones and de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) at 553. Similarly, the Supreme Court has held various privacy commissioners do not have greater expertise about the meaning of certain concepts found in their respective statutes which limit or define their authority: see Jones and De Villars at 553, note 223. Accepting that no analogy is perfect, I see no reason why this Court should depart from those precedents. Indeed, if one looks to the arbitral jurisprudence, one is struck by the reliance on judicial opinions touching on the matter. The overlap reflects the general importance of the issues in the law and of the need to promote consistency and, hence, certainty, in the jurisprudence. Finally, I am struck by the fact that there comes a point where administrative decision makers are unable to reach a consensus on a particular point of law, but the parties seek a solution which promotes certainty in the law, freed from the tenets of the deference doctrine. In the present case, it is evident that the arbitral jurisprudence is not consistent when it comes to providing an answer to the central question raised on this appeal. Hence, it falls on this Court to provide a definitive answer so far as New Brunswick is concerned. This is why I am prepared to apply the review standard of correctness. But this is not to suggest that I am about to ignore the arbitral jurisprudence which has evolved over the last two decades. Let me explain.

Justice Robertson’s “let me explain” line leads to a full analysis of the cross-Canada arbitral jurisprudence in an attempt to derive a principle for the justification of random alcohol testing respectful of arbitral efforts. In the end, he says:

As matter of policy, this Court must decide whether an employer is under an obligation to demonstrate sufficient evidence of an alcohol problem in the workplace before adopting a policy requiring mandatory random alcohol testing. In my view, the balancing of interests approach which has developed in the arbitral jurisprudence and which is being applied in the context of mandatory random alcohol testing warrants approbation. Evidence of an existing alcohol problem in the workplace is unnecessary once the employer’s work environment is classified as inherently dangerous. Not only is the object and effect of such a testing policy to protect the safety interests of those workers whose performance may be impaired by alcohol, but also the safety interests of their co-workers and the greater public. Potential damage to the employer’s property and that of the public and the environment adds yet a further dimension to the problem and the justification for random testing. As is evident, the true question is whether the employer’s workplace falls within the category of inherently dangerous. It is to that issue I now turn.

On the facts, Justice Robertson held that Irving’s kraft mill met the “inherently dangerous” criterion, a finding made somewhat easy by the arbitration board’s finding that Irving’s workplace was “dangerous,” but not dangerous enough to justify random alcohol testing without evidence of a workplace substance abuse problem.

Syndicat canadien des communications, de l’énergie et du papier, section locale 30 c. Les Pâtes et Papier Irving, Limitée, 2011 NBCA 58 (CanLII).

Another Procedural Order Issued in Faculty E-Mail Case

On June 21st the Alberta Court of Queen’s Bench issued a procedural order related to two significant judicial review applications. The matter that underlies both applications is about an FOI request for e-mail communications between a University of Alberta faculty member and a selection committee of the Social Sciences and Humanities Research Council.

The university brought an application to quash a decision in which the OIPC found that the e-mails sought by the requester were under its custody or control. The Association of Academic Staff of the University of Alberta brought its own application, and claimed it ought to have been given notice and standing by the OIPC. Over the university and OIPC’s objection, the Court allowed the association’s application to proceed based on the association’s limited but very significant procedural ground. Later, in February of this year, the Court held that the two applications should be heard consecutively, with the association’s application proceeding first.

In this most recent order, the Court allowed allowed the association to intervene in the university’s judicial review application, which unlike the association’s own application, challenges the substantive basis for the OIPC’s custody or control finding. The association argued that it could provide input on “the true nature of emails within the context of the relationship between the UofA and the staff association.” The Court ordered that the association’s submissions would be limited to the interpretation of the faculty agreement and “its expertise and insight as to the University-academic employment relationship, the effect academic freedom has on that relationship and documents created by faculty members, and the unique nature of committee work.”

University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 389 (CanLII).

Arbitrator Williamson Says Relevant Surveillance Evidence is Admissible… Period

On May 30th, Ontario labour arbitrator David Williamson issued a preliminary award in which he held that video surveillance footage taken of employees while on duty and in public places was admissible without proof that the surveillance initiative was reasonable. Although Arbitrator Williamson’s finding rests on some employer-favorable facts, he also makes some principled statements in favor of admitting relevant evidence.

See here for snapshot of the positions taken by Ontario arbitrators, a resource I will update in time.

Windsor-Essex County Health Unit v. Canadian Union of Public Employees, Local 543.3 (Kavanaugh Grievance), [2011] O.L.A.A. No. 255 (Williamson).

Justice Perell Says Deemed Undertaking Normally Adequate, Tweaks it for Proceeding

On June 13th Justice Perell of the Ontario Superior Court of Justice issued an order that clarified the scope of the deemed undertaking and slightly modified it for a particular class proceeding. He also affirmed, however, that the undertaking is the normal source of privacy protection for parties to litigation in Ontario.

The class proceeding defendant argued that the deemed undertaking was inadequate for protecting its confidential business information. In particular, it argued that undertaking would not preclude the filing of production materials (on the public record) in interlocutory motions without notice and would not protect against misuse by experts and “third parties.” It proposed a confidentiality order that would restrict access to production materials to certain “permitted persons,” some of whom would be required to sign a confidentiality order.

Justice Perell rejected the defendant’s proposed confidentiality order as inconsistent with the basis for the deemed undertaking rule and too cumbersome. He said that the deemed undertaking will normally provide adequate protection and issued an order imposing a modified form of the rule. In response to the defendant’s particular concerns, Justice Perell ordered a provision for serving materials on an interlocutory motion 15 days before filing, a specification that the undertaking binds lawyers’ staff, experts and consultants and a specification that the undertaking prohibits the disclosure of information to class members unless in ordinary circumstances. Justice Perell also imposed a term requiring the parties to destroy production materials (without specification as to means) at the conclusion of the action.

Robinson v. Medtronic Inc., 2011 ONSC 3663.

Federal Court Says it has no Jurisdiction to Hear Application About ATIA Request Administration

On June 8th, the Federal Court held that it did not have jurisdiction to hear an application that alleged the Attorney General of Canada gave notice of an unreasonable time limit extension in responding to an Access to Information Act request. The Court held it had no jurisdiction in advance of an actual or deemed refusal and distinguished a case in which the Crown had conceded that an unreasonable extension amounted to a deemed refusal.

Public Service Alliance of Canada v. Canada (Attorney General), 2011 FC 649 (CanLII).

City Councillor Fined for Leaking Harassment Report

I hadn’t heard about the unprecedented conviction of a city counsellor under the British Columbia Freedom of Information and Protection of Privacy Act until stumbling upon the British Columbia Provincial Court’s May 24th judgement. Councillor Brian Skakun was convicted and fined $750 for disclosing information in contravention of FIPPA. The Court found Skakun leaked a harassment report to a CBC reporter. Notably, it rejected an argument that Skakun’s actions were justified based on a common law whistleblower defence.

R. v. Skakun, 2011 BCPC 98. (conviction)

R. v. Skakun, 2011 BCPC 108. (sentence)

Employer Denied Order to Have Telco Produce Text Messages

On May 18th, the Ontario Superior Court of Justice dismissed an employer’s application for an order to compel a telephone company to produce text messages in aide of an internal investigation.

The employer, a social services agency, was investigating an allegation that a caseworker had an inappropriate sexual relationship with a client. The client admitted the relationship and the caseworker did not. The client said he no longer had text messages between he and the caseworker that would prove the allegation but consented to their release from the TBay Tel. The caseworker and her union refused to consent.

Rather than discipline or discharge the caseworker and seek a production order through the grievance arbitration process as necessary to defend a grievance, the employer deferred the completion of its investigation and sought a production order in court. It argued this was in the best interest of “all concerned,” likely a sign that it did not want to rest its discipline case too heavily on its client.

Justice Fregeau denied the order, primarily because it was not necessary. He said:

CLFFD has some evidence that J.T. violated their employment policy. They are in a position to discipline her for her conduct should they choose to do so. Their expressed position during the hearing of this Application is that for the interests of all concerned, they do not want to do so without “full information” or the “best evidence” available. It would certainly be advantageous or beneficial for CLFFD to have the information sought, but I do not find that they require it to proceed with the discipline of J.T.

While a Norwich order is a discretionary, flexible and evolving remedy, it is also an intrusive and extraordinary remedy that must be exercised with caution. I do not feel that it is appropriate to grant Norwich relief on all the facts and circumstances of this case.

Notably, the caseworker’s union opposed the requested order as being beyond the Court’s jurisdiction because the essential nature of the dispute arose out of the collective agreement between the caseworker’s union and the employer (i.e., because of the Weber principle of exclusive arbitral jurisdiction). The Court did not decide this issue.

This case should be considered by employers considering a Norwich order as an aide to an internal investigation. They should also beware that many (if not most) telephone companies do not log text messages.

Community Living v. TBay Tel et al., 2011 ONSC 2734 (CanLII).