Author: Dan Michaluk

Case Report – Warrantless search for internet subscriber’s data okayed by BCSC

On November 1st, the British Columbia Supreme Court dismissed a Charter application that challenged a letter request made by the police to an internet service provider for the name and address of an account holder associated with a specific IP address at a specific point in time.

There have been a number of recent Canadian cases about whether the police can investigate internet crime by asking an ISP to reveal the identity of the individual linked to an IP address that is associated with unlawful and anonymous activity. The cases turn on whether this investigatory tactic violates a reasonable expectation of privacy. Two factors have featured strongly in the analysis (1) the nature of the information obtained by the police and (2) the contractual terms between the individual and ISP.

In this case, Justice Meiklem of the BCSC endorsed the approach taken by the Ontario Superior Court of Justice in R. v. Wilson. He held that so-called “subscriber information” was not part of the applicant’s biographical core of personal information and held that the terms of service of his internet service plan weighed against a reasonable expectation of privacy. His Honour also commented, “It seems clear to me that, absent a finding of state agency, s. 487.014(1) [of the Criminal Code] provides the police with lawful authority to make a PIPEDA request for subscriber information, which an ISP is not prohibited by law from disclosing if it falls within the provisions of s. 7(3)(c. 1)(ii) of PIPEDA…”

R. v. McNeice, [2010] B.C.J. NO. 2131 (S.C.) (QL).

Case Report – Alberta arbitrator doesn’t like Patriot Act argument

On September 7th, an arbitration board chaired by Arbitrator Jones of Alberta partly upheld a grievance that challenged the implementation of psychometric testing for principals and others. The grievance award is largely fact-specific, but is notable for its treatment of an association argument that suggested the testing program was unreasonable because it required a transfer of personal information to the United States.

Arbitrator Jones said:

A great deal of the ATA’s objections to the LPA relate to the fact that it was created by High Performing Systems Inc, which is an American organization, is based in United States, has links to the U.S. military, and uses U.S. data (at least in part). Xenophobia does not establish the unreasonableness of the use of the LPA as part of the selection process.

Arbitrator Jones did, however, find that the rollout of the program was “maladroit,” suggesting that there were questions about the privacy impact of the program that the employer ought to have been prepared to answer.

Calgary Board of Education v. Alberta Teachers’ Assn. (Leadership Potential Assessment Grievance), [2010] A.G.A.A. NO. 52 (Jones) (QL).

Case Report – Federal Court says Information Commissioner can order production of excluded records

On September 24th, the Federal Court held that the Information Commissioner of Canada can order the CBC to produce records it claims to be excluded as records relating to journalistic, creative or programming activities.

The CBC denied access based on a special exclusion that it was granted when it was brought under the Access to Information Act in 2007. It reads:

68.1 This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

The Court held that the Commissioner can order production of records claimed to be excluded under this provision in the course of investigating an access complaint because reading “this Act does not apply” to preclude such a power would frustrate the purpose of the ATIA. It also noted that there was no evidence of harm to the CBC’s journalistic interests that would flow from handing records over to the Commissioner.

Canadian Broadcasting Corporation v. Information Commissioner of Canada, 2010 FC 954 (CanLII).

Case Report – Ontario Court of Appeal grants media broad access to video evidence

On November 1st, the Ontario Court of Appeal amended an order to give the media greater access to video evidence filed as exhibits in a preliminary inquiry.

The Crown charged four correctional officers with criminal negligence causing death after a prisoner died in custody. The Crown dropped the charges mid-way through the preliminary inquiry and the CBC then sought access to video and audio recordings filed as exhibits. The Court ultimately gave the CBC access, but held that it was only entitled to view and copy portions of video played in court and held that it could view but not copy the portion of the video that was played showing the prisoner’s death.

The Court first held that the Dagenais/Mentuck framework applies to a request for access to exhibits. Regarding the “played in court” limitation, the Court held there was no principled reason to deny access to the whole of an exhibit:

When an exhibit is introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit becomes a part of the record in the case. While a party may choose to read or play only portions of the exhibit in open court, the trier of fact, whether judge or jury, is not limited to considering only those portions when deciding the case. A party who introduces an exhibit without restriction cannot limit the attention of the trier of fact to only portions of the exhibit that favour that party and that the party chooses to read out or play in open court.

Regarding the restriction on copying portions of video showing the inmate’s death, the Court held there was no evidence adduced to support the restriction.

R. v. Canadian Broadcasting Corporation, 2010 ONCA 726.

Discovery agreement endorsed by Campbell J. a good sample

You may be interested in Enbridge Pipelines Inc. v. BP Canada Energy Company, 2010 ONSC 3796 (CanLII) for a sample discovery agreement endorsed by Cambell J. of the Ontario Superior Court of Justice. His Honour characterizes the action as complex and with “voluminous documentation.” The agreement was negotiated over six meet and confers and looks like it was modeled from the Ontario E-Discovery Implementation Committee model. Campbell J. says, “Not every action will in my view require the detailed type of plan as set out in this Agreement. Many different types of action need only an informal agreement between counsel.”

Information Roundup – 24 October 2010

Here are some tweets recent tweets which may be of interest.

And on a much different note, check out this nice NPR interview with Gary Golio and Javaka Steptoe, author and illustrator of a new children’s book about young Jimi Hendrix called “Jimi Sounds Like a Rainbow: A Story of the Young Jimi Hendrix.” Cool Christmas gift idea. Did I just mention Christmas in October?!

See ya!

Dan

Case Report – SCC says no class privilege to protect journalists’ confidential sources in Quebec

On October 22nd, the Supreme Court of Canada unanimously rejected arguments that unique features of Quebec law justify the recognition of a class privilege to protect against the identification of journalists’ confidential sources. Rather, it held that journalists who claim confidential source privilege in a Quebec civil proceeding must meet the requirements of the Wigmore case-by-case test.

The Court summarized the proper approach as follows:

In summary, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate that the questions are relevant. If the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case. At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) the public interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context-specific manner, having regard to the particular demand for disclosure at issue. It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.

The relevant considerations at this stage of the analysis, when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means.  As discussed earlier, this list is not comprehensive. I will now consider whether a claim of privilege could be established in this case.

The Court also made a notable finding in support of journalists’ right to receive and publish information obtained from whistleblowers.

The Respondent argued in support of a publication ban issued after it complained about leaks from confidential settlement negotiations. The Court stressed the strong public interest maintaining the confidentiality of settlement negotiations, but also held that confidentiality obligations held by the parties to settlement discussions do not bind others, including journalists:

Moreover, there are sound policy reasons for not automatically subjecting journalists to the legal constraints and obligations imposed on their sources.  The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples. In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not providing the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources of information.

This reasoning led the Court to reject a rule that would “automatically prevent” journalists from publishing information obtained from a source who is in breach of his or her confidentiality obligations. Rather, the Court held that the Dagenais/Mentuck test for limiting freedom of expression and freedom of the press in relation to legal proceedings applies.

Globe and Mail v. Canada (Attorney General), 2010 SCC 41.

Case Report – Ontario Court of Appeal affirms order to produce voice cockpit recordings

This September 17th litigation and privacy judgement by the Ontario Court of Appeal slipped me by. The Court affirmed an order that requires the Transportation Safety Board to produce cockpit voice recordings from the 2005 Air France crash in Toronto despite the statutory privilege covering such recordings. The grounds for appeal were narrow, though the Court summarizes Strathy J.’s balancing of interests and calls it “thoughtful and comprehensive.” For my summary of the Strathy J. order, see here.

Société Air France v. NAV Canada, 2010 ONCA 598

Case Report – Records protected by settlement privilege exempt from the right of public access in Ontario

Today, the Ontario Court of Appeal issued a significant decision in which it held that documents protected by settlement privilege are exempt from public access under the Ontario Freedom of Information and Protection of Privacy Act.

The LCBO denied access to various records related to a mediated settlement of a number of civil proceedings between itself and a winery. It relied on the “solicitor-client privilege” exemption in section 19 of FIPPA. This exemption has two branches. Branch 1 exempts records that are subject to solicitor-client privilege and litigation privilege as these privileges are recognized at common law. Branch 2 exempts records that are “prepared by or for Crown counsel for use in giving legal advice or in contemplation or for use in litigation.”

The Court of Appeal affirmed the Divisional Court’s Decision that the records were exempt because they fit within the Branch 2 exemption. In doing so, it made the following significant findings:

  • the term “litigation” in the Branch 2 exemption encompasses mandatory and consensual mediation of an Ontario civil dispute;
  • the phrase “prepared for Crown counsel” should not be narrowly read to mean “prepared at the behest of Crown counsel”; and
  • the “for use in litigation” requirement imports a requirement that the records be communicated to Crown counsel within a reasonably expected “zone of privacy.”

Though this is a very significant decision on the FIPPA Branch 2 exemption, the Court declined to opine an even more significant issue – an issue it framed as “Whether the common law settlement privilege is a free-standing exemption under FIPPA or whether FIPPA is a complete code.” The Divisional Court judgment strongly suggests that privileges recognized at common law and rooted in the public interest (such as settlement privilege) can trump the FIPPA right of access.

Liquor Control Board of Ontario v. Magnotta Winery Corporation, 2010 ONCA 681.

Case Report – Court comments on legality of surreptitious video surveillance

On October 6th, Ramsey J. of the Ontario Superior Court of Justice made the following comment on the legality of surreptitious video surveillance in striking a claim that alleged an “unlawful investigation scheme”:

As I have noted, the only conduct about which facts are alleged with any particularity consists of the insurance company hiring an investigator to investigate the plaintiff, and the investigator’s approach to a neighbour, during which he made himself known to the neighbour, who immediately told the plaintiff that the plaintiff was being investigated. That cannot possibly sustain a claim of wrongdoing or improper motivation.

Insurance companies are entitled to conduct surveillance of plaintiffs if they do so within the confines of the law. They cannot trespass on private property and they cannot intercept communications electronically. They cannot threaten witnesses or litigants. They cannot commit the tort of defamation. The plaintiff does not claim that they did. The fact that a private investigator is conducting an investigation is not defamatory. Anyone who is involved in a car accident or a divorce might be investigated by a private investigator.

Insurance companies do not need grounds to believe that the plaintiff is making a fraudulent claim before they conduct an investigation. They can conduct surveillance to refute a claim, to confirm a claim, or to see whether a claim is valid or not. They can photograph a plaintiff in places open to public view. They can identify themselves to the neighbours, and ask them for information about the case. Stripped of bald assertions and fanciful conclusions, the statement of claim alleges no wrongful acts and nothing from which improper motivation could be inferred.

This certainly highlights the significance of the Federal Court’s recent State Farm decision, which suggests that the collection of evidence in defence of a civil action is not PIPEDA-regulated notwithstanding the involvement of “commercial” actors such as insurers, lawyers and private investigators.

Pontillo v. Zinger et al., 2010 ONSC 5537 (CanLII).