Author: Dan Michaluk

Redaction preferred to sealing says court

The Federal Court of Appeal issued an illustrative order on January 6th in which it rejected a consent motion to seal documents that included the appellant’s SIN number. Instead, it ordered the respondent to redact and re-file. For some reason the Attorney-General filed the documents with SIN numbers for a second time on appeal after the appellant sought protection of the same information in the lower court hearing.

Grace Singer v. Canada (Attorney General), 2011 FCA 3 (CanLII).

Arbitrator gives employers a “nugget” for justifying in-plant surveillance

Saskatchewan Labour Arbitrator William Hood made the following comment in dismissing a grievance that challenged the installation of video cameras in a distribution centre that supplies product to hospitals and pharmacies:

The Employer’s implementation of a video surveillance system passes the reasonableness tests both in terms of need and manner of use. To suggest there first must be a breach of the security of the premises before one can justify the use of video cameras for security purposes makes no sense to me in the circumstances. Why would management wait until someone stole the gold to install video surveillance at the Royal Canadian Mint?

This is a nice statement for employers, though the award was carried on a number of good facts.

Re Saskatchewan Joint Board, Retail, Wholesale and Department Store Union and McKesson Canada Corp. (Privacy Grievance), [2010] S.L.A.A. No. 26 (Hood) (QL).

What happens when institutions withhold records in which they claim solicitor-client privilege from an FOI adjudicator?

The Information and Privacy Commissioner/Ontario issued a university-sector FOI order late last year that dealt with a solicitor-client privilege claim. The outcome turns on the facts, but the order is nonetheless notable because it contains a narrative of how the IPC dealt with the University’s decision to only provide an index of records and supporting affidavit based on its solicitor-client privilege claim. Though not very clear in the order, it appears the IPC asked for a supplemental affidavit (to deal with exclusion claims also made to the withheld records), which led to an agreement to allow the IPC adjudicator to attend at the University to examine the records.

For another window into the process by which the IPC deals with institutions who elect not provide records to review, see this Divisional Court decision from last March.

York University (Re), 2010 CanLII 77658 (ON I.P.C.).

Judge distinguishes between true whistleblowers and partisan pretenders in ordering disclosure of confidential source

We’ve published here before about former Minister of Parliament Blair Wilson’s defamation lawsuit, part of which rests on an allegation that former British Columbia politician Judi Tyabji distributed an anonymous and defamatory letter.

On December 31st, Mr. Justice Williamson of the British Columbia Supreme Court ordered Elaine O’Connor, a reporter to whom the letter was provided under a condition of confidence, to disclose her source. His decision turns heavily on the characterization of the relationship between the confidential source alleged to be Tyabji and O’Connor. His Honour says:

I am satisfied that if the source is an arm’s length person disclosing information to a member of the media out a sense of civic responsibility grounded in a desire to foster accountability and responsibility in Members of Parliament, the public interest in protecting the identity of such a source outweighs the public interest in ensuring the proper administration of justice. But I also am satisfied that if the source is a participant in a scheme to favour the interests of one side in an acrimonious family dispute, or is a participant in a politically motivated scheme to defame and discredit an elected politician, then the public interest in fostering the proper administration of justice outweighs the public interest in protecting a journalist’s anonymous source.

Mr. Justice Williamson said that he was unable to find which of the two categories into which the anonymous source alleged to be Tyabji fell, and therefore held that O’Connor had failed to meet her burden of establishing the privilege she claimed.

This puts journalists in a particular dilemma given the evidence available to prove a source’s motive will always be limited if anonymity is to be maintained. The Globe and others report that the decision will be appealed. It seems like one that may have some legs.

Lougheed v. Wilson, 2010 BCSC 1871.

All About Information Now a Group Blog

Happy new year!

The new year always invites change, and I’m happy to announce a positive change for this blog. After three and a half years of posting about the law of information on my own, I’ve invited four very good colleagues to join All About Information as co-authors.

Paul Broad, Frank Cesario, Natasha Monkman and George Vuicic are all Hicks Morley lawyers. I sought them out to participate because I know them as dedicated to a process of c0ntiual learning and knowledge sharing and because each will bring a different perspective to the topic. We’re all lawyers who act exclusively for management, but Paul is a knowledge management lawyer with a strong privacy practice, Frank is a litigator, Natasha is pension and benefits lawyer and George, while having a very broad and successful Canadian labour and employment practice, is also called in New York.

The subject matter of the blog will remain the same as always: All About Information is, as the title suggests, all about the legal rules that govern information. I suspect the style to change and hope that the content develops to be more rich as a result of our combined effort. Please bear with us as we as we find a rhythm and our new group voice. We look forward to the blogging year ahead!

Dan

Information Roundup – 30 December 2010

Here are some links to recent news and commentary:

I’ve made two information-related resolutions for 2011. One is to send fewer e-mails in favour of picking up the phone. The other is to make every e-mail a high quality e-mail. Regarding my personal habits, Seanna has convinced me to join her in going through Dr. Alejandro Junger’s detoxification program. I don’t really know what’s involved and am putting myself in her (and the doctor’s) hands, but feel I’m good and ready to clean out eight years of food court lunches along with all my other poisons. Better e-mailing and better eating might make for a pretty good year!

Until next year, I wish you all the best!

Dan

Case Report – Court says duty to preserve doesn’t spring from mere happening of adverse event

On December 7th, the Ontario Superior Court of Justice dismissed a motion for an adverse inference based on the destruction of hospital records.

The hospital destroyed, during a routine purge, a medical chart related to a minor’s labour and delivery more than ten years after the procedure but less than ten years from the minor’s 18th birthday. The Court held that the destruction of the chart was inadvertent rather than intentional. Its reasoning is very fact-specific but for the following comment on one of the bases the plaintiff raised in support of an inference:

He also submitted that the fact of an adverse outcome [in the medical procedure at issue] is sufficient to suggest motivation to destroy records. I reject these submissions. Many medical procedures and hospitalizations may not have the desired outcome, but that does not automatically lead to the conclusion there will be litigation.

This is a (thankfully) forgiving take on the duty to preserve.

Gutbir v. University Health Network, 2010 ONSC 6752 (CanLII).

Case Report – Federal Court considers accuracy principle, orders damages under PIPEDA

The Federal Court issued a PIPEDA judgment today in which it considered an organization’s duty to maintain accurate records of personal information and ordered damages under PIPEDA, both for the first time.

The judgment is about an inaccurate credit report given by a credit reporting agency to a bank. The agency wrongly associated negative credit information with the applicant based on the similarity between his identifiers and the identifiers of the individual to whom the negative information related. The applicant made some inquiries and diagnosed the error in early January 2008. It took the agency about 20 days to confirm the error, amend the applicant’s credit record and send a notice of correction to the bank. The applicant took issue with how forthright the agency was in dealing with the matter, both in its willingness to accept responsibility for the error (as opposed to blaming the collection agency that had supplied it with the negative information) and in notifying the bank.

The Court held that the credit reporting agency:

  • failed to keep the applicant’s personal information “as accurate, complete and up-to-date as is necessary for the purposes for which it is to be used” as required by PIPEDA principle 4.6;
  • failed to keep the applicant’s personal information “sufficiently accurate, complete, and up-to-date to minimize the possibility that inappropriate information may be used to make a decision about the individual” as required by PIPEDA principle 4.6.1; and
  • failed to provide amended information as required by PIPEDA principle 4.9.5 because it simply advised the bank that the applicant’s credit record had been amended without providing a copy of the amended credit record or otherwise indicating that the amendment was in the applicant’s favor.

In upholding the accuracy complaint, the Court rejected the agency’s argument that its use of industry standard matching practices (which contemplate some margin of identification error) and its correction effort rendered it in compliance. The Court was very clear that neither compliance with industry standards nor complying with the duty to correct are valid defences to an accuracy complaint, but did suggest that liability for keeping inaccurate personal information is not absolute. It stated:

PIPEDA does not require that personal information be completely accurate, complete, and up- to-date; rather, it requires that personal information be as accurate, complete, and up-to-date “as is necessary for the purposes for which it is to be used.” Thus, it is the use that the information is put to that dictates the degree of accuracy, completeness, and currency the information must have.

It then suggested that the agency failed to take the reasonable precaution of conducting a manual check prior to issuing its credit report.

The Court awarded the applicant $5,000 in damages for humiliation suffered. While it recognized its recent statement in Randall v. Nubodys Fitness Centres that damages ought to be awarded in “egregious situations” only, it held that damages should be ordered to “uphold the general objects of PIPEDA and uphold the values it embodies,” including by deterring future breaches. In awarding damages in the circumstances, the Court noted the evidence of humiliation, the credit reporting agency’s profit motive and the credit reporting agency’s “failure to take prompt, reasonable steps to correct the record and reverse the situation it had caused.”

There are other aspects of the Court’s judgment of significance, including aspects related to the scope of the Federal Court’s jurisdiction under section 14 and its jurisdiction to make compliance orders under section 16(a).

Mirza Nammo v. Transunion of Canada Inc., 2010 FC 1284.

Case Report – Personal e-mails not subject to FOI legislation

On December 13th, the Ontario Superior Court of Justice – Divisional Court held that employee personal e-mails stored on government e-mail servers are not subject to provincial FOI legislation.

The Court read “custody or control” purposely and narrowly. It held that providing access to personal e-mails does not advance the purpose of FOI legislation – advancing public participation in the democratic process.

The Court’s reasoning is very broad. The only atypical fact that it relied upon was that the e-mails in question were stored in a separate folder rather than intermingled with e-mails related to governmental affairs. The Court minimized the significant of this fact as follows:

That said, it does not follow that personal emails not filed in a separate folder (as was the case here) are necessarily subject to the operation of the Act. Much will depend on the individual circumstances of each case, but generally speaking, I would expect very few employee emails that are personal in nature and unrelated to government affairs to be subject to legislation merely because they were sent or received on the email server of an institution subject to the Act.

Importantly, the decision does not recognize a privacy right in personal e-mails or preclude institutions from auditing or inspecting personal e-mails. The Court makes relatively clear that its decision does not rest on employees’ privacy interest in the content of their e-mails.

Copy below circulated by Heenan Blaikie. Congratulations to Priscilla Platt and Brad Elberg, who acted for the City. As the Court (remarkably) says, its decision has implications for public sector employees that are “staggering.” Look for an appeal.

City of Ottawa v. Ontario (Information and Privacy Commissioner) (13 December 2010, Ont Div. Ct.).