Case Report – BCCA rejects privacy claim by criminal defendants

On March 3rd, the British Columbia Court of Appeal directed that factums filed on a criminal appeal be provided to a non-party.

While the outcome is not surprising, this is a decision in which an appellant court comments on a criminal defendant’s right to privacy. Chief Justice Finch rejected an argument made by the defendants whose order of acquittal was under appeal. They argued that access should not be granted because the factums contained references to unproven allegations of fact. The Chief Justice responded as follows:

It is common ground among all counsel with knowledge of same, that there is nothing contained in any of the factums that was not said or disclosed in Provincial Court in proceedings that were open to the public. There was no order banning publication of any of the information or material at issue on the voir dire.

It necessarily follows in my view that there is no principled basis upon which disclosure of this information to a non-party could now be refused. Everything that is to be learned from reading the factums filed in Court is already in the public domain by reason of the proceedings in Provincial Court. It has not been suggested that publication of this information would in any way prejudice the fair trial interests of the respondents should the Crown’s appeal succeed. Whatever privacy interests or protection of innocence interests may be at risk have already been overtaken by the open proceedings in Provincial Court.

The matter was before the Court because a British Columbia Court of Appeal criminal practice directive limits routine access to factums and, instead, requires that a request be made to the Chief Justice.

R. v. Bacon, 2010 BCCA 102.

Case Report – Alberta OIPC says no to credit checks as part of retail security program

On February 16th, the Alberta OIPC held that a retailer’s practice of conducting credit checks in the process of hiring sales associates violated the Alberta PIPA.

The retailer used the checks as part of a comprehensive retail security program. It argued they were justified based on two purposes:

To assess how applicants will handle financial responsibilities and tasks associated with their employment duties
To assess whether applicants have a probable risk of in-store theft or fraud

The OPIC held that these purposes did not justify the collection of credit related information. The OPIC’s reasoning is as broad or broader than its reasoning in a 2005 credit check case in which it reached the same conclusion. This suggests that Alberta’s private sector employers will need special circumstances to conduct credit checks on prospective employees.

Hat tip to David Fraser.

Investigation Report P2010-IR-001

Case Report – Newfoundland FOI judgement on “advice and recomendations” exemption

On February 12th, the Newfoundland and Labrador Supreme Court – Trial Division issued an FOI judgement. It is largely fact-specific, but the Court made this comment on the advice and recommendations exemption in the Newfoundland Access to Information and Protection of Privacy Act:

The words “advice” and “recommendations” have similar but distinct meanings. The term “recommendations” relates to a suggested course of action. “Advice” relates to an expression of opinion on policy-related matters such as when a public official identifies a matter for decision and sets out the options, without reaching a conclusion as to how the matter should be decided or which of the options should be selected.

The Court also held that the statutory privilege in section 55 of the Act protects records from production.

McBreairty v. College of the North Atlantic, 2010 NLTD 28 (CanLII).

Case Report – Arbitrator affirms background check program based on soft C-TPAT requirement

On January 20th, Arbitrator Watters held that a criminal background check program initiated in response to the United States Customs-Trade Partnership Against Terrorism program was reasonable.

The key features of the company’s background check program: (1) it applied to new employees and current employees transferring into positions deemed to be sensitive based on C-TPAT requirements; (2) it excluded employees who were checked by the company pre-hire and employees employed by the company for more than five years; (3) the company assessed the results of checks on a case-by-case basis; and (4) the company undertook not to rely on information received about provincial offences convictions and pardoned criminal offences in excluding an employee from an opportunity to work in a sensitive position.

The company wanted to ensure that its “Tier 3” C-TPAT status would not be jeopardized because this status is associated with fast track movement of goods into the United States. Yet the grievance posed a challenge for the company because the C-TPAT criminal background check requirement is flexible, in that it is subject to restrictions in local laws. Moreover, U.S. Customs and Border Services provided a very qualified opinion to the company that only suggested that failing to conduct conduct background checks “might affect” its top tier status. The company was also not certain how being degraded to Tier 2 status would affect its ability to move goods in to the United States. It could only argue that it did not want to find out.

Despite these challenges, Arbitrator Watters held that the company’s background check program was reasonable. He said:

Once the Employer elected to enter the program, I think it reasonable for the company to want to achieve, and then maintain. Tier 3 status through the adoption of the best practices identified by C-TPAT. While it is difficult to precisely gauge own CBP would respond to a change to Tier 2 status. I am inclined to accept the Employer’s view that a reduction in Tier status, as a consequence of a decision not to require criminal background checks for employees in sensitives roles, would likely result in increased screening of the company’s product and resulting delay in the shipment process. I was given no reason to reject Mr. Dunn’s evidence that delay at the ports of entry into the United States could result in the loss of market share as consumers move to the available product of some other competitor. I further not his testimony that delay could compromise product quality in respect of certain brands with a finite shelf-life.

Arbitrator Watters appears to have been influenced by the company’s willingness to take steps to ameliorate the impact of its program. At the hearing, the company expressed willingness to take additional ameliorative steps that were not embodied in its existing policy. Arbitrator Watters ordered the company to implement these steps.

Unfortunately, the parties appear to have argued the case as if Ontario provincial public sector privacy legislation applied to the company. Though a common misunderstanding, provincially regulated employees in Ontario (whether public or private sector) are not protected by privacy legislation.

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 2098 v. Diageo Canada Inc. (Amherstburg Plant), [2010] O.L.A.A. No. 21 (Wattters) (QL).

Information Roundup – 21 February 2010

Here are some recent tweets of note!

RT @eMichaelPower Electricity records and #privacy in #Canada: http://tinyurl.com/yeh4jux
A case about windurfing and the law of privilege via @erikmagraken http://bit.ly/9Lfszi
RT @legalpost Labour boutiques, overtime lawsuits, big banks and appeals: No doubt Ont. Sup. Ct. Justice George Strathy http://bit.ly/bZeet1
Notable ABCA judgment on admin tribunal’s discretion to hear evidence and threshold for 7 and 11(b) Charter protection http://bit.ly/9AH5ah
Court concludes Info and Privacy Comm. may not review privilege claims http://bit.ly/aPV7Qq [Nice find @privacylawyer Thx!]
RT @slaw_dot_ca Ontario courts ease into the era of proportionality http://bit.ly/9bRJT0
RT @slaw_dot_ca Google Buzz Already Raising Privacy Concerns http://bit.ly/azIouv
NYT reports that U of Alabama shooter was faculty member recently denied tenure http://nyti.ms/cqSAM7
RT @slaw_dot_ca Law Buzz Slowed to a Dim Hum http://bit.ly/aXmmuI
Enjoyed this post by Prof. Brenner on expextation of privacy in WiFi transmissions – http://bit.ly/aV8Pgw
Should the Sex Offender Be Invited? http://nyti.ms/dqEvia [Don’t agree with process. Risk assessment based on stats a bad idea.]
RT @slaw_dot_ca Adele McAlear on Death and Digital Legacy http://bit.ly/cNA57g
Personal Emails Retained by School’s Email System Not Subject to Michigan’s FOIA http://bit.ly/cDeLuE [Reminiscent of our Johnson v. Bell]
U.S. Supreme Court to Consider Access to Identities of Ballot Initiative Supporters http://bit.ly/at9mCY
Emails, Interception and Private Actors http://bit.ly/6ABxZ1 [Loving Prof. Brenner’s blog!]
The hat you are wearing may have FOI implications http://bit.ly/8I22qb [Good issue!]
RT @slaw_dot_ca Musings of Frank Work, Alberta privacy commissioner http://is.gd/6GeFm
Supreme Court Affirms Right to Attend Jury Selection [Newsroom Law Blog] http://bit.ly/73hSzA
Australian teachers object to publication of school performance data http://bit.ly/4ocaei

This is a tough time of year eh? All work and no play makes Dan a dull boy… and I really like my work! I wrote this over at Slaw to make myself feel better. If you read it I hope it does the same for you!

Dan

P.S. Go Canada!

Case Report – Newfoundland court says Privacy Commissioner can’t access documents subject to solicitor-client privilege

On February 16th, the Newfoundland Supreme Court – Trial Division, held that the Newfoundland Information and Privacy Commissioner cannot require a public body to produce records claimed to be exempt from public access as subject to solicitor-client privilege.

The Newfoundland Access to Information and Protection of Privacy Act gives requester a right to seek review of an access decision either through the Commissioner or the Trial Division. In the event of a review, the Commissioner may require production of records, and a public body has a corresponding duty under section 52(3) to provide responsive records “notwithstanding another Act or a privilege under the law of evidence.” The Commissioner argued that section 52(3) allows it to compel the production of records claimed to be exempt from public access as subject to solicitor-client privilege. It made a purposive argument and also adduced text from a legislative committee report that suggested the Commissioner be granted a power of review that would operate “notwithstanding any law or privilege.”

The Court relied on the long line of jurisprudence that establishes solicitor-client privilege can only be abrogated by clear and unequivocal language, including the Supreme Court of Canada’s recent Blood Tribe decision. It held that reference to “a privilege under the law of evidence” is not clear indication that the legislature intended solicitor-client privilege to be infringed because solicitor-client privilege is an rule of evidence and a substantive legal right. It explained:

By the time the ATIPPA came into force, solicitor-client privilege had been broadened beyond a mere rule of evidence for more than twenty years. Section 52(3) refers only to “privilege under the law of evidence”. Again, this language is simply not expansive enough to capture the breadth of solicitor-client privilege as a substantive rule which the Supreme Court of Canada describes as a “fundamental civil and legal right”. The interpretation proposed by the Commissioner cannot be achieved by the words in section 52(3). To suggest otherwise would necessitate ignoring the evolution of the privilege as described by the Supreme Court of Canada.

The Court also held that the Commissioner’s power to review access decisions does not include a power to adjudicate solicitor-client privilege claims because such claims involve substantive rights that exist independently of the Act.

Hat tip to David Fraser.

Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2010 NLTD 31 (CanLII).

Case Report – FCA quashes order for failure to consider privacy interest of non-party

On February 8th, the Federal Court of Appeal quashed an order by the Public Service Staff Relations Board because it accepted a consent order between a union and several employers that required the employers to disclose employee home addresses and telephone numbers to the union.

The Board held that the employers breached the Public Service Labour Relations Act by failing to provide the union with “some” contact information to facilitate its representational role. It reserved judgment on remedy, raised the issue of employee privacy to the parties and encouraged them to seek agreement on a remedy. The parties later came back before the Board and it endorsed their agreement in a consent order without reasons. The applicant, a one-time advocate against the kind of disclosure agreed to, was not given notice of the hearing. When she learned of the order, she commenced an application for judicial review.

The Court held that the Board erred in law by simply endorsing the consent order and failing to exercise its jurisdiction. The Court explained that this rarely-challenged practice can be fatal when there are non-parties whose privacy interests are affected by an agreement:

The Board was seized of the questions which it had raised because those questions went beyond the interests of the employers and the union and engaged the interests of persons who were not before it. Those persons had statutorily protected privacy rights of which the Board was well aware. The Board had an obligation to consider those rights and to justify interfering with those rights to the extent that it did. It could not abdicate that responsibility by simply incorporating the parties’ agreement into an order.

The Court ordered the matter to be remitted to the Board, ordered it to give notice to the Office of the Privacy Commissioner and suggested that the applicant also be given notice and standing.

For a very different take on non-party privacy and standing, see this decision of the British Columbia Court of Appeal.

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII).

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII)

“Privacy Issues in Civil Litgation” and “Email as Evidence” presentations

Just noting two presentations from yesterday, one on Privacy Issues in Civil Litigation with Alex Cameron and another on Email as Evidence with John Gregory. Though I’m getting a little worn down by the speaker’s circuit, it was a very special treat to present with two lawyers for whom I have significant affinity and respect. Slides are below.

Best regards!

Dan

Case Report – Court won’t order disclosure of health professional’s identity

On January 27th, the British Columbia Supreme Court denied a request for an order requiring an online contact lens and eyeglass business to disclose the identity of an eye care professional it employs.

The College sought the identity of the registrant who worked for the respondents (affiliated companies) in the course of an investigation. The College applied to the Court for an order based on the Court’s equitable jurisdiction (a Norwich Pharmacal order), or alternatively, its inherent jurisdiction (in aide of an inferior tribunal).

The Court held that an order should not be made on either basis. This was partly based on a finding that the evidence did not show the unidentified registrant was involved in the matter under investigation. The Court also held that an order would not be appropriate in light of the statutory powers granted to the College. The Court suggested that the College had ample means to identify the registrant without relying on the Court, noting its power to inspect the premises and records of a registrant, the possibility of asking for warrant to search a non-registrant’s premises and the possibility of requiring registrants to file their business address and telephone number.

College of Opticians of British Columbia v. Coastal Contacts Inc., 2010 BCSC 104 (CanLII).

Case Report – Judge says, “You’ve got the hard drives, you review them.”

On January 27th Marrocco J. of the Ontario Superior Court of Justice dismissed a motion for a further and better affidavit because the moving party had previously taken custody of the records that it wanted the respondent to produce.

The moving party had executed an Anton Piller order that apparently gave it unrestricted access to a number of hard drives, and it used the drives to demonstrate deficiencies in the respondent’s production. In dismissing the motion, Marrocco J. said:

Rule 30.03(2) of the Rules of Civil Procedure provides that the affidavit of documents shall list and describe all documents relevant to any matter in issue in the action that are in a party’s “possession control or power…”. In this case, the respondent’s hard drives were seized under an Anton Piller order. They were imaged and the imaged hard drives were made available to the plaintiff. The plaintiff can have access to the imaged hard drives at any time. Therefore, it seems to me that the imaged hard drives are within the power, if not also the possession and control of the plaintiff. Therefore, pursuant to Rule 30.03(2), the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents.

Marrocco J. did note that the respondent had not made any claim of privilege in records contained on the hard drives.

Bell ExpressVu Limited Partnership v. Heeren, 2010 ONSC 665 (CanLII).