PSLRB Says Public Servant Deserved Suspension for Publishing Advertorial

The Public Service Labour Relations Board issued an award on April 4th that illustrates the balancing of interests that defines the scope of a public servant’s duty of loyalty.

Adjudicator Love upheld a five-day suspension for conduct he characterized as making a “deliberate and unwarranted attack” on public officials and government. The grievor, a clerk in the Department of Public Works and Government Services, paid for a full-page advertorial in the National Post to take issue with the manner in which the government handled his application for an internal job competition. In particular, the grievor alleged that the Minister abused his power and that the Ethics Commissioner, the Treasury Board President and the Auditor General dropped the ball with respect to his case.

Adjudicator Love balanced the grievor’s right of expression against the government’s recognized interest in maintaining a public service that demonstrates impartiality, neutrality, fairness and integrity. He considered the following factors in upholding the government’s penalty:

the grievor published the advertorial four days before a federal election
the subject matter of the advertorial was of a personal rather than public interest
the advertorial directly attacked individuals
the advertorial lead readers to believe the greivor held a position of some responsibility
the advertorial was published in a national newspaper, with high visibility
the issues raised by the advertorial were sensitive, relating to abuse of power and lack of integrity, and were published around the same time the department was under scrutiny during the Gomery Inquiry
the advertorial inaccurately suggested that the grievor had exhausted all internal avenues

Adjucator Love ends by stressing the seriousness of defaming public officials without justification: “Cases such as Chopra (see paragraph 44 of that decision) make it clear that, even if an employee exhausts internal recourses before going public, certain communications may still breach the duty of loyalty, if they attribute inappropriate motives to a minister and his or her department.”

MacLean v. Treasury Board (Department of Public Works and Government Services), 2011 PSLRB 40.

Question of Remedy for Privilege Breach Back to Securities Commission in Knowledge House Affair

On Thursday, the Nova Scotia Court of Appeal issued a judgement about the Knowledge House affair, which has become as notable for the handling of an e-mail server containing solicitor-client communications as for the securities law issues at its heart.

In 2005, Justice Scanlan issued a scathing judgement in which he rejected an argument that certain individuals had waived privilege by sending communications over a company-owned server. In the result, he ordered removal of counsel who had seized the server and reviewed e-mails in prosecuting a civil claim on behalf of National Bank Financial Limited.

The Nova Scotia Securities Commission obtained privileged communications from NBFL and allegedly reviewed them in aide of its investigation. The Court of Appeal dealt with the affected persons’ quest for a remedy against the Commission in 2006. Justice Cromwell (as he then was) held that the affected persons’ application for certiorari was premature, but said the Commission should take “serious and immediate steps” to do right. The Commission did not respond to the Court’s suggestion by initiating proceedings to resolve the privilege issue. Instead, it issued formal allegations. The affected persons then moved before the Commission for a remedy. In June 2010, after numerous intervening proceedings, the Commission held that the privilege breach issue should not be bifucated and dealt with in advance of the merits of the Commission’s allegations.

Thursday’s decision is strictly procedural. Though it recognized that the hanging investigation and privilege question has been “stressful and costly” for the affected persons, the Court held that the delay in hearing the request to remedy the privilege breach was understandable and that the request for a remedy could be dealt with by way of a voire dire at the commencement of the hearing of the Commission’s allegations. It upheld the Commission’s decision.

Wadden v. Nova Scotia (Attorney General), 2011 NSCA 55.

Surveillance Evidence and the Reasonableness Requirement Debate – Where do Ontario Arbitrators stand?

Ontario Labour Arbitrator Brian Sheehan is the latest arbitrator to weigh in on whether it is proper for a labour arbitrator to exclude relevant surveillance evidence because the surveillance evidence does not pass an objective “reasonableness” test. In International Hotel v. United Food and Commercial Workers, Arbitrator Sheehan dealt strictly with the legal test. He held that arbitrators can and should exclude evidence obtained through covert off-duty surveillance if the surveillance effort is not reasonable in all the circumstances.

There is quite a split in opinion amongst arbitrators on this question. Here is my understanding of where Ontario arbitrators stand.

This list is based on Ontario because the debate seems most alive here. Also, as some have argued, there is a statutory underpinning for privacy rights in other provinces that makes Ontario unique.

I must make two qualifications given the above display’s simplicity. First, the list doesn’t indicate the strength with which arbitrators have endorsed the two positions or their bases for doing so (which vary). Second, it is also not to suggest that the all the “reasonableness arbitrators” have adopted the same standard. Some, for example, have suggested that reasonableness should be assessed with an understanding that excluding relevant evidence significantly affects an employer’s right to be heard and an arbitration board’s truth-seeking function.

Order to Identify Anonymous Message Board Users Granted (Ontario)

On May 30th, the Ontario Superior Court of Justice granted an order to defamation plaintiff Richard Warman to help him identify two individuals he alleges defamed him by posting comments on the “Freedominion” message board.

Mr. Warman’s process of identifying eight “John Doe” defendants has taken some time. He first obtained an order in March 2009, but it was quashed in May 2010 by the Divisional Court – see “Court says suing message board operator not an easy means to identify anonymous internet users.” Following the Divisional Court order, Mr. Warman discovered six of the John Does’ identities without the aide of a court order. He then came back to the Court to identify the unidentified two.

Justice Blishen issued an order requiring the operators of the Freedominion site to provide identifying information over their objection and based on the four-part test articulated last May by the Divisional Court. She rejected an argument that the use of pseudonyms gave the unidentified John Does a reasonable expecation of privacy. She also rejected an argument that the common use of “hyperbole” and “exaggeration” on the Freedominion site rendered the impugned publications incapable of having a defamatory meaning.

Hat tip to Peg Duncan!

Warman v. Wilkins-Fournier, 2011 ONSC 3023 (CanLII).

BC Arbitrator Endorses Unified Test for Assessing Legitimacy of Access to Internet Log File

On May 12th, Arbitrator Nicholas Glass held that a British Columbia public body did not breach the Freedom of Information and Protection of Privacy Act by accessing an internet log file in the course of a time theft investigation.

The outcome is not surprising. The employer had grounds (an anonymous complaint), the grievor had previously been disciplined for misconduct that raised questions about his dishonesty, the employer had a good acceptable use policy that the grievor had recently acknowledged and log files contain relatively non-sensitive information. Theses facts left arbitrator Glass with a very different concern that dealt with by the British Columbia OIPC in 2007 when it held that the University of British Columbia breached FIPPA in installing spyware in course of a time theft investigation.

The decision is more notable for Arbitrator Glass’s suggestion that the statutory “necessity” requirement (common to most public sector privacy statutes) should be unified in principle with the reasonableness requirement applied by labour arbitrators. In doing so, he endorses the following statement by former British Columbia Commissioner Loukidelis in the Mission School District Case:

At the same time, I am not prepared to accept, as the Complainants contend, that in all cases personal information should be found to be “necessary” only where it would be impossible to operate a program or carry on an activity without the personal information. There may be cases where personal information is “necessary” even where it is not indispensable in this sense. The assessment of whether personal information is “necessary” will be conducted in a searching and rigorous way. In assessing whether personal information is “necessary”, one considers the sensitivity of the personal information, the particular purpose for the collection and the amount of personal information collected, assessed in light of the purpose for collection. In addition to FIPPA’s privacy protection objective is also relevant in assessing necessity noting that this statutory objective is consistent with the internationally recognized principle of limited collection.

In applying this pragmatic approach, Arbitrator Glass rejects the notion that the employer should have simply confronted the grievor. He states, “The point is that in order to manage the employment relationship the employer in these circumstances was entitled to thorough, accurate and objective information about the frequency and extent of [the grievor’s] non-work-related internet use.”

Fraser Health Authority v. H.S.A.B.C., 2011 CarswellBC 1174 (Glass).

Divisional Court Says Homeowner Privacy Concern Required Notice to Homeowners

On May 12th, the Divisional Court issued a brief judgment by which it sent an FOI matter back to the Information and Privacy Commissioner/Ontario for a re-hearing after notice is given to affected parties.

The records at issue contain toxicity test results that are associated with “homeowner’s addresses or location information.” The Court held that this information is arguably the personal information of homeowners, who should have been given notice of hearing by the IPC as a matter of procedural fairness, in particular given the information was collected by the Ministry of the Environment based on an assurance of confidentiality.

Northstar Aerospace v. Ontario (Information and Privacy Commissioner), 2011 ONSC 2956 (CanLII).

Unauthorized Secondary Use Claim To Proceed, Unauthorized Retention Claim Dismissed

On May 12th, the British Columbia Supreme Court allowed a novel privacy class action to proceed.

While most civil privacy claims relate to claims of improper disclosure, the plaintiffs here objected to the unauthorized retention and use of personal information – specifically, the retention of newborn blood samples for medical purposes and (secondary) research purposes that were not disclosed at the time of collection. The Court held that liability for the secondary use was a genuine issue for trial.

The Court rejected the plaintiffs’ claim that rested on the alleged unauthorized long term retention of samples for medical purposes, a practice the plaintiffs claimed created a “fully functional DNA database.” The Court held that authorization to retain for medical purposes was not in doubt given the plaintiffs consented to collection for medical purposes and, at the time, did not raise any concerns about retention for the same purposes.

D. (L.) (Guardian ad litem of) v. Provincial Health Services Authority, 2011 BCSC 628 (CanLII).

SCC Establishes Scope of Access to Information Act

Yesterday, the Supreme Court of Canada issued a decision that deals with the scope of Access to Information Act application, in particular to “ministerial” records.

The Court considered a series of ATIA requests filed in 1999 by a Reform Party staffer, including a requests for former Prime Minister Chretien’s agenda books from the Privy Council Office and the Royal Canadian Mounted Police and requests for records from the former transport and defence ministers.

The bulk of the records in dispute were only in the custody of the PMO, the Office of the Minister of Transport and the Office of the Minister of National Defence, raising a question about whether these offices are subject to the act as “institutions.” None of these political offices are listed in the Act’s schedule of institutions, but their bureaucratic counterparts are – namely, the Privy Council Office, the Department of Transport and the Department of National Defence.

In June 2008, Justice Kelen of the Federal Court, conducted a lengthy analysis of the text and structure of the ATIA and extrinsic factors showing Parliament’s intent. He concluded that, for the purposes of the ATIA, the PMO is not part of the PCO nor are other ministerial offices part of their departments. According to this finding, records within the PMO and ministerial offices can only be subject to the ATIA if they are in the “control” of the bureaucracy. Parts of former Prime Minister Chretien’s agenda book, for example, were admitted to be in the control of the Privy Council Office and the Royal Canadian Mounted Police and subject to the Act. Justice Kelen ordered this information to be disclosed based on a finding that the Prime Minister is an “officer” of the Privy Council Office and, cannot shield information which “relates to the position or functions of the individual” from public access based on the personal information exemption. This last finding was overturned by the Federal Court of Appeal in June 2009.

The Supreme Court unanimously dismissed the Information Commissioner of Canada’s appeal, with Justice Charron writing for eight judges and Justice LeBel writing a concurring judgement on his own. It is therefore clear that the PMO and ministerial offices are not institutions under the ATIA and that the Prime Minister is not an officer of the PCO. The Court also unanimously endorsed the two-part control test articulated by Justice Kelen: records are under the control of a government institution if (1) they relate to a departmental matter and (2) the government institution could reasonably expect to obtain a copy of the document upon request. Regarding the second part of this test, Justice Charron stressed that the required analysis is contextual and normative:

Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly. (emphasis in original)

The split between Justice LeBel and the majority is puzzling. Justice LeBel joins the majority on all findings but takes great issue with its reasoning, which suggests that Parliament intended ministerial records to have special excluded status. Justice LeBel accuses the majority of creating a presumption that such records are not subject to public access, which the majority flatly denies. Given the majority’s denial, Justice LeBel’s split should not have great practical significance.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.