I’d like to thank LexisNexis Litigation Services for the opportunity to speak at its Breakfast Bytes seminar on e-discovery and the new Ontario rules. I did my best to provide an inspirational message on the new Rules and Pamela Fontaine Peters of Micrapol did a great practical presentation on the ins and outs of the e-discovery process. My slides are below, with an annotated version available at SlideShare. Enjoy!
Author: Dan Michaluk
Case Report – Production favoured over privacy interests in two orders relating to Air France crash litigation
The Ontario Superior Court of Justice has issued two production-related decisions in litigation flowing from the 2005 Air France crash in Toronto. On December 12th of last year, it held that the Transportation Safety Board should produce Air France’s cockpit voice recorder. On January 14th, it ordered Air France to produce relevant medical records and an internal investigation report.
Strathy J. issued the cockpit voice recorder decision. He held that production was warranted despite the statutory privilege for “on-board recordings” in section 28 of the Transportation Safety Board Act. This privilege is based on a need to protect pilot privacy and a need to encourage free communication between pilots, both necessary given that continuous voice recording is invasive. Strathy J. held that, in the circumstances, these interests did not outweigh the public interest in the “integrity of the judicial fact-finding process and the reliability of the evidence before the court.” He stressed that the cockpit voice recorder evidence was highly relevant, probative and reliable and that the pilots’ remaining privacy interest was minimal given their pre-crash communications were fully probed by the TSB and discussed publicly in its accident report.
Master Brott issued the second production-related decision. She rejected Air France’s argument that that production of a captain’s medical records should not be ordered given strict French privacy laws and because Air France had produced a certificate of medical fitness. She held that the captain was a party to the action, that “Medical records in France and Ontario belong to the patient” and that the records were relevant in light of the pleadings. Master Brott also rejected an argument that an internal investigation report prepared by Air France as a matter of due diligence was immune from production on account of case-by-case privilege.
Société Air France v. Greater Toronto Airports Authority, 2009 CanLII 69321 (ON S.C.).
Société Air France v. Greater Toronto Airports Authority et al, 2010 ONSC 432 (CanLII).
Third Circuit student speech cases illustrate struggle to characterize communication through social media
This is a lengthy post about the two recent student speech decisions of the United States Third Circuit Court of Appeals – Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. The Court reached the opposite conclusion in each case, though both dealt with sanctions imposed by school boards for similar “misuse” of social media. These conflicting judgements illustrate a dialogue about whether to recognize the unique impact of harmful social media use by students.
Layshock – Physical remoteness prevails over intangible connections to the school
In Layshock, on February 4th, the Court affirmed a student’s successful First Amendment claim and rejected a school board’s argument for an exception to the “material and substantial disruption” test for enjoining student speech.
Layshock argued that he was protected by the First Amendment in creating a MySpace “parody profile” of his principal. He created the website outside of school hours using a home computer, but used a picture of the principal that he copied from a board website. The profile included various assertions about the principal regarding drinking, use of drugs and use of prostitutes. It is debatable whether Layshock’s communications were defamatory given their context, but they were vulgar and the principal testified to feeling demoralized and degraded. The judgement says word of the profile “spread like wildfire” and led to the posting of two other similar sites. The board issued a penalty that included a ten day suspension.
On appeal, the board argued that the speech itself (apart from its effect) deserved sanction because it was vulgar, harassing and directed at the school community. It faced two challenges. First, the link to the board’s interests was very intangible; aside from the copying of the picture, Layshock’s activity was clearly situated outside of the school and only linked to the school by virtue Layshock’s intent. Second, the board effectively argued for an exception to the fundamental American rule on student speech from Tinker v. Des Moines Indep. Cmty. Sch. Dist. The rule in Tinker establishes that a school board cannot enjoin student expression that does not “materially and substantially disrupt the work and discipline of the school.” The United States Supreme Court has found exceptions to Tinker, including one that permits schools to sanction vulgar expression in the name of encouraging the “fundamental values of ‘habits and manners of civility’.” The question in Layshock, however, was whether this exception could be rightly applied to conduct so physically remote from the school.
The Court was clearly uncomfortable in departing from the rule in Tinker. It said:
As noted earlier, the District’s January letter to the Layshocks advising them of Justin’s suspension reads, in relevant part, that it was punishing Justin because: “Justin admitted prior to the informal hearing that he created a profile about Mr. Trosch.” Although the letter also mentions disruption, the District does not now challenge the district court’s finding that Justin’s conduct did not result in any substantial disruption. Moreover, when pressed at oral argument, counsel for the School District conceded that the District was relying solely on the fact that Justin created the profile of Trosch. We have found no authority that would support punishment for creating such a profile unless it results in foreseeable and substantial disruption of school.
Had the board successfully attacked the lower court’s finding on disruption based on evidence about the impact of Layshock’s expression on the principal himself, the outcome would have differed. As for the exception to Tinker for vulgar and uncivil expression, the Court held that school boards have no business in sanctioning vulgar and uncivil expression outside of the school. Though it acknowledged that a school is not bounded by “bricks and mortar surrounding the school yard” it said:
It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in using his grandmother’s computer while at his grandmother’s house would create just such a precedent and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of free expression.
By this statement, the Court suggests that student expression published through social media should be treated as private and should not be deemed to be associated with any particular school-related harms.
Blue Mountain – Majority keeps with Tinker but recognizes unique harms that flow from misuse of social media
In Blue Mountain, also issued on February 4th, a 2-1 majority of the Court reached the opposite conclusion to the Layshock panel after affirming a finding that a school board had met the material and substantial disruption test from Tinker. Though the majority paid heed to Tinker, it made some very broad statements about the unique harms that flow from misuse of social media.
The facts in Blue Mountain were remarkably similar to those in Layshock. The board suspended J.S. and K.L., two eighth grade girls, for posting a MySpace profile that parodied their principal. The site did not name the principal, but included his picture (taken by the girls from the school’s website) and asserted that he was a sex addict and pedophile. The principal, who testified that he felt upset, angry and hurt, investigated himself and then suspended J.S. and K.L. for ten days.
The majority made clear that it was deciding a different question than decided the same day in Layshock: “We decline today to decide whether a school official may discipline a student for her lewd, vulgar or offensive off-campus speech that has an effect on-campus because we conclude that the profile at issue, though created off-campus, falls within the realm of student speech subject to regulation under Tinker.” It held that the Tinker rule does not prohibit school boards from enjoining conduct that causes reasonably foreseeable harms and, in the circumstances, held that the board could act to prevent a foreseeable deterioration in school discipline.
Unlike the panel in Layshock, the majority in Blue Mountain recognized that J.S. and K.L.’s off-campus expression was harmful by its very nature:
The girls embarrassed, belittled, and possibly defamed McGonigle. They created the profile not as a personal, private, or anonymous expression of frustration or anger, but as a public means of humiliating McGonigle before those who knew him in the context of his role as Middle School principal…
Undoubtedly, students have made fun of or made distasteful jokes about school officials, free from the consequences of school punishment, either out-of-earshot or outside the school context since the advent of our modern educational system. However, due to the technological advances of the Internet, J.S. and K.L. created a profile that could be, and in fact was, viewed by at least twenty-two members of the Middle School community within a matter of days…
We thus cannot overlook the context of the lewd and vulgar language contained in the profile, especially in light of the inherent potential of the Internet to allow rapid dissemination of information. Accordingly, J.S.’s argument for a strict application of Tinker, limited to the physical boundaries of school campuses, is unavailing.Instead, we hold that off campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.
These statements are very broad. Though the majority respects the Tinker framework, it establishes a strong basis for a presumed disruption of school activity. In doing so, the majority accepts the very argument rejected by the panel in Layshock.
Conclusion
Commentators have questioned whether the conflicting rulings are justified based on the facts. In my view they are not, and the two awards illustrate a very live and significant debate about how to characterize online student expression.
Tinker aside, boards in Canada and the United States have been given a relatively broad license to control student activity within the school. Civil libertarians would like to sustain a relatively hard in-school versus out-of-school distinction because the distinction allows for free expression on a range of matters outside of the school and in private. The question, though, is whether it is proper to apply a hard distinction in assessing online student expression of the kind demonstrated in Layshock and Blue Mountain. This question is obviously yet to be resolved.
[Qualification. I practice law in Ontario, Canada and act for educational institutions. This is a comment and not a legal opinion and I am not holding myself out as qualified to practice in matters related to American law.]
Case Report – Order to attend assessment following employee’s aggressive outburst not discriminatory
Yesterday, the Court of Appeal for the Yukon Territory affirmed a decision of a Yukon Human Rights Board of Adjudication. The Board had held that an employer did not discriminate against an employee with a bipolar condition by suspending him pending a medical assessment. It held that the employer ordered the assessment based on an observation of objectively concerning behavior rather than on any stereotypical assumptions about the employee’s disability:
Whether Mr. March’s conduct was disruptive and inappropriate or not was a question of fact. The evidentiary facts were largely undisputed and the primary task of the Board was to resolve the conflicting interpretations and decide whether Mr. March’s conduct was disruptive and inappropriate. The issue involved an individualized assessment of particular facts. The Board heard the evidence and concluded that Mr. March’s conduct was disruptive and inappropriate and the respondents acted reasonably in the circumstances in removing him from the workplace pending a medical assessment. The action taken was temporary and responsive to the disruptive conduct and not an arbitrary reaction attributable to a discriminatory stereotyping of his disability. Instead, it was directed to ascertaining the cause of his conduct, and deciding how it should be addressed.
Though employers do have a general right to request medical information in circumstances similar to those demonstrated in this case, the employer here had accommodated the employee for years and further helped its case by making a genuine expression of continued support for the employee at the same time as making its direction.
March v. Yukon (Human Rights Board of Adjudication), 2010 YKCA 3.
Case Report – Court addresses rule on redacting information from relevant documents
On March 8th, the Ontario Superior Court of Justice issued an endorsement that outlined the rule on when relevant information may be redacted from producible records. It said, “The whole of a relevant document must be produced except to the extent it contains information that would cause significant harm to the producing party or would infringe public interests deserving of protection.” And also, “Irrelevance alone is not a sufficient ground on which to redact portions of a document. The party seeking to do so bears the onus of establishing that redaction is necessary to protect an important interest.”
McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII).
Case Report – BCCA says aerial surveillance by telphoto zoom lens not a search
Today, the British Columbia Court of Appeal held that the police did not violate section 8 of the Charter by conducting aerial surveillance of a rural property from in excess of 1000 feet by using a digital camera equipped with a telephoto lens.
The police obtained a search warrant based partly on the surveillance evidence. The pictures showed plants of a “distinctive green” colour through the opaque walls of a number of greenhouses. The grounds for the search warrant were also based on the location of the greenhouses on the rural property, which suggested they were meant to be obscured from public view, and a variety of observations taken from an adjacent property.
The Court held there was no search that engaged section 8 of the Charter. In doing so, it said:
The greenhouses were visible from the air and anyone in an airplane, helicopter, or other aerial device would have been able to see what the police observed and photographed. Anyone using binoculars would have seen what the police saw and the zoom lens employed by the police is readily available at retail stores. It is not advanced or unique technology and did not permit the police to determine what activities were taking place inside the greenhouses that were not otherwise observable given the translucent walls of the structures. Additionally, the police were able to see a marihuana plant through a greenhouse door left open. Obviously, the plant was thus in public view.
The Court also held that the police did not need to announce their presence on the property given it was a large rural property. It said, “To require the police to first alert persons working in or around the greenhouses was, as the trial judge accepted, impractical and an invitation to those present to flee, destroy evidence, or set up an ambush.”
Case Report – Contact with defendant’s former employee not grounds to disqualify plaintiff counsel
On February 24th, the Ontario Superior Court of Justice declined to disqualify plaintiff counsel for its contact with a former employee of the defendant who the defendant alleged had received related confidential information in the context of a solicitor-client relationship while employed.
Plaintiff counsel represented various adult entertainment establishments in an action against the Toronto Police Services Board for matters arising out of a large scale investigation that was led by O’Mara. It claimed the TPSB was vicariously liable for O’Mara’s conduct.
In 2001, right around his retirement, O’Mara met with lawyers for the TPSB to discuss his evidence. Sometime later O’Mara contacted plaintiff counsel about providing them with private investigation services. In 2003 plaintiff counsel retained O’Mara on two files unrelated to the action against TPSB in which he prepared affidavits. It’s not clear why, but the plaintiffs produced the affidavits in the TPSB action, at which point the defendants objected to plaintiff counsel’s contact with O’Mara.
The Court held that disqualification was not justified because O’Mara did not receive confidential information attributable to a solicitor-client relationship. In doing so, it declined to apply a rebuttable presumption that such information was communicated because O’Mara did not meet with the TPSB as a client and, unlike in the Court of Appeal’s recent Humber v. Stewart decision, was a neither a potential expert witness nor responsible for giving instructions to counsel as a member of management. It said:
In light of the above, there is no reason to consider that the communications between counsel and O’Mara were other than an ordinary interview with a potential witness to obtain information from the potential witness. The fact that the potential witness was still, at the time, employed with the TPS does not change the nature of the communications. They were part of an interview with a potential witness, and not shown to be of a kind to make it reasonably likely that confidential information would be imparted to Mr. O’Mara.
In obiter, the Court also held that the relationship between O’Mara and plaintiff counsel did not support a presumption that any information within O’Mara’s knowledge would likely have be misused.
728654 Ontario Inc. (Locomotion Tavern) v. Ontario (Attorney General), 2010 ONSC 1184 (CanLII).
Ontario workplace violence bill and threat assessment take two – the domestic violence provision
I posted yesterday about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers and my theory that it is most significant because it requires good threat assessment processes. The other provision that is getting talk is the so-called “domestic violence provision.” This, in my view, is an even more direct invitation to embrace good threat assessment processes.
Come June 15th, section 32.0.4 of the OHSA will read:
If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.
This has people asking, “What is domestic violence?”
The term “domestic violence” has caused a distraction in my view. It is dangerous because it could lead people to get tied up in a mental knot about the variety of violence associated with a threat rather than the threat itself. While I don’t mean to discount the problem of domestic violence in the workplace and the special challenges it raises, the answer to the question above does not likely affect employer duties.
This is because it is not plausible that a threat of physical injury from violence simpliciter deserves any less management than a threat of physical injury from domestic violence. The provision therefore could have read:
If an employer becomes aware, or ought reasonably to be aware, that violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.
This would have been very nice language – subject to interpretation but at least clear in its intent. And if the legislature did want to signal to employers that the risk of domestic violence in the workplace is no less their responsibility to address than the risk of violence simplicter in the workplace, it could have included a deeming provision specifying that “violence” includes “domestic violence.” In my view, the duties arising from such language would have been the same as those to be confirmed by the Bill 168 provisions come June.
This brings us back to threat assessment. Distracting language aside, section 32.0.4 speaks about acting based on facts that ought reasonably be known. It signals that employers should (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time. These basic prescriptions go for all kinds of violence, domestic and otherwise.
Ontario workplace violence bill demands good behavioral threat assessment processes
Many questions have been raised about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers. My take on the provision is that the actual disclosure duty is fairly narrow, and that the provision is most significant because it requires good behavioral threat assessment processes. I’ve laid out my reasoning below.
The section everyone’s talking about is section 32.05(3). It reads as follows:
(3) An employer’s duty to provide information to a worker under clause 25 (2) (a) and a supervisor’s duty to advise a worker under clause 27 (2) (a) include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if,
(a) the worker can be expected to encounter that person in the course of his or her work; and
(b) the risk of workplace violence is likely to expose the worker to physical injury.
The first question asked about this provision is, “How do we know if a person has a history of violence?” The language of the provision is strict: it does not say “known history of violence.” Does this mean that employers must be omniscient? No.
Health and safety legislation is typically drafted in onerous language to encourage behavior that maximizes protection for workers. Though claims by employers of over-breadth and vagueness about such language are typically unsuccessful, even by promulgating meaningless language that seems to set an absurdly high standard of conduct (such as omniscience), the government cannot preclude a due diligence defence. So the government can encourage employers to act upon knowledge of an individual’s history of violence (as it has done), but can’t sustain a charge based on a failure to be omniscient if it is reasonable to protect a worker by knowing less about another individual’s history.
What is reasonable then? This is certainly a point that will be litigated, but there is a wealth of available literature on threat assessment to give employers guidance today. If I can simplify, this literature requires organizations to (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time.
What about human rights and privacy concerns? Regarding human rights concerns, threat assessment is not about “profiling” an individual based on a stereotype but, rather, is about gathering facts about behavior to understand a potential threat. Performed properly, it should be defensible. Regarding privacy, threat assessment requires access to information about threats. Employers may have a duty to gather information in the course of conducting an assessment, but the more fundamental duty is to “know what you know” by having a system in place for reporting and recording concerning behavior in the workplace, including all violent acts. This conception – know what you know and conduct threat inquires as necessary – seems to strike a fair balance between workplace health and safety and personal privacy.
For those of you interested in reading more about threat assessment, there are some leading resources at the United States Secret Service National Threat Assessment Center. The complete text of Bill 168 is here.
Case Report – Ontario C.A. comments on faculty e-mail privacy
On February 17th, the Ontario Court of Appeal affirmed an order that required images of two work computers of a university professor to be sent to France for use in a terrorism investigation. In its earlier leave decision, the Court commented generally on a faculty member’s privacy interest in her work e-mails.
Simmons J.A., sitting in chambers, made a decision to grant leave last December 22nd. In doing so, he commented on the applicant’s privacy interest in her work computer based on evidence of faculty collective agreement provisions that granted a right of privacy in personal communications. He did not have the university’s acceptable use policy before it, and refused to take judicial notice that there was a privacy-limiting policy in place. Simmons J.A. said:
I am not prepared to take judicial notice that a similar acceptable-use policy exists in this case. As I see it, the work and research generally done by university professors is qualitatively different than done by high school teachers [as in the Cole case] and could require a heightened level of personal privacy and security. In the absence of evidence on the subject, I am not prepared to assume that an acceptable use policy exists or that university network administrators were entitled to access the applicant’s private e-mail or electronic files or to monitor her Internet usage.
On the contrary, in my view, the collective agreement referred to above suggests that Carleton University professors are entitled to use their work computers for personal communications and research and that they have an objectively reasonable expectation of privacy in relation to personal electronic data. Moreover, because computers can be used to store large quantities of personal information (e.g. banking records, personal contacts, personal communications, etc.), in my opinion it is at least arguable that the applicant’s claim to a reasonable expectation of privacy in her electronic data is a matter of significant importance to her.
Though very qualified and therefore limited in its authority, this statement reveals a different attitude than is commonly expressed about stored communications on employer systems whether inside or outside of the university sector.
On February 17th, a three-judge panel of the Court dismissed the appeal without commenting on the reasonable expectation of privacy issue. The Court held that the order was lawful because there were reasonable grounds to suspect that the terrorism suspect was using the applicant’s work computers to e-mail others.
France (Republic of) v. Tfaily (2009), 98 O.R. (3d) 161 (C.A.) [not online] and 2010 ONCA 127 (CanLII).
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