Author: Dan Michaluk

Case Report – Order for production of hard drive to probe at late night Facebook use will stand

In April, the British Columbia Supreme Court ordered a hard drive to be produced to a neutral expert to identify and extract information about the amount of time the plaintiff spends on Facebook between eleven at night and five in the morning. It held that this information met the standard of relevance for production given the plaintiff had claimed that fatigue is preventing him from maintaining employment. It also characterized the scope of the defendant’s request as narrow and suggested the privacy interest of the plaintiff and other users of the (home) computer were resolved by engaging a neutral.

Yesterday, the British Columbia Court of Appeal dismissed a motion for leave to appeal. In doing so, Garson J. held that the appeal was not prima facie meritorious, but did note specific facts that indicated the order was not based on speculation.

Bishop v. Minichello, 2009 BCCA 555.

My Clawbie Nominations

Steve Matthews of Stem Legal and the Law Firm Web Strategy Blog has announced that nominations for the 2009 Clawbies are now open.

Since Steve said that his invite was coming, I’ve been thinking about where I was going to spend my votes and what I like about a blog. I concluded that it’s more about the blogger than the blog for me. With that in mind, here are my nominations.

  1. David Fraser’s Canadian Privacy Law Blog. I like David’s blog because he’s really, really into privacy and it shows in his blog and his other public activities. And David seems to get the scoop on good cases, either from a contact or from being involved (like on the strange and fascinating Lisa Raitt lost tape case). Finally, David’s also probably the only one of Lexpert’s Top 40 Under 40 with a blog. Congrats and thanks David!
  2. Michael Fitzgibbon’s Thoughts From a Management Lawyer. Mike doesn’t post as much as he used to, but when he does it’s good. His analysis is always tight but his style is casual, which makes for a presentation I admire greatly. Finally, Mike has been generous to me even though I’m at a competitor management-side employment firm. In other words, he understands what online social networking is really about. Thanks Mike.
  3. ABLawg.ca. This is the University of Calgary Faculty of Law blog. It’s a regional blog, which is distinguishes it from Osgoode’s competitive offering – ultra-heavyweight two-time Clawbie winner The Court. I like The Court, but actually find ABLawg a more useful practice support, with content of day-to-day relevance. The current headlining post, for example, is on an FOI case. Unreal!

I wish I had more votes. Slaw is awesome, and I’m having a great time writing for it. I’ve also enjoyed getting to know Omar Ha-Redeye. Omar’s so high profile, but should not be underestimated because of it. He’s a pretty fascinating guy, with a lot of things to say that are well worth a listen. Finally, Antonin Pribetic – “The Trial Warrior” – is amazing. His content is right down my alley. I only wish I could keep up!

Thanks all! Good year.

Dan

Case Report – Federal Court comments on confidentiality of drafts

On November 30th, the Federal Court dismissed a federal Access to Information Act application about the application of the solicitor-client privilege exemption. Notably, Montigny J. made the following comment about the confidentiality of draft documents:

The Supreme Court also held in Blank, supra, that there is often a potential for overlap of legal advice privilege and litigation privilege in the litigation context. Legal advice privilege may continue to apply to material to which litigation privilege no longer attaches (Blank, at para. 49). I have found that there are several examples of this kind of overlap in the case at bar. This is true, in particular, of draft court documents or submissions. These draft documents remain protected by legal advice privilege under s. 23 of the Act even though the final version of these documents may have been released once the litigation privilege that applied to them had come to an end. Draft court documents, while being drafted, represent an interchange between solicitor and client, wherein the solicitor provides the client with direction or options as to the legal position to be taken in pending litigation. The client, in turn, comments on that legal advice, provides further instructions, and so forth. Draft court documents and submissions are, by their very nature, intended to be confidential. It is only the final version that is filed with, or submitted to, the court that is not so intended. The draft court documents or submissions clearly satisfy the three criteria set out in Solosky, supra, for legal advice privilege.

This reasoning has general significance to the law of solicitor-client privilege. It is also relevant to exemptions such as the government advice exemption in Ontario freedom of information legislation. The IPC/Ontario, I believe, has taken the position that draft records do not reveal “advice” and are therefore not exempt from public access.

Blank v. Canada, 2009 FC 1221.

Two presentations on privacy, campus and workplace violence and student affairs

Our firm has the pleasure of doing extensive work in the Ontario post secondary education sector. As part of this business, we ran a conference entitled Students and the Law – Proactive Strategies for Changing Times for a group of university administrators in early November and a similar session again today for college administrators.

I spoke on students at risk and managing on-campus violence together with my colleague Catherine Peters. Catherine covered the impact of Ontario’s pending workplace health and safety legislation (Bill 168) on campus safety programs as well as the (tricky!) interplay between disciplinary and non-disciplinary management. I also dealt with Bill 168 in discussing mandatory and discretionary disclosures of personal information for the purpose of managing risk. The slides are below, and for a copy of my speaking notes click here.

I then did a short “hot issues” in student information and privacy presentation, with a brief note on the tort of invasion of privacy, a fun segment about students who take other students’ pictures and a note about processing the “I want all my e-mails” access to personal information request. The slides are below, and for my speaking notes click here.

Here are some recent and relevant resources that we noted in our discussion:

I’d like to thank Gene Deisinger, who has recently begun duties as Deputy Chief of Police & Director of Threat Management Services at Virginia Tech, for identifying some of these resources. Gene and colleague Marisa Randazzo do an excellent podcast on threat assessment that’s linked from the fourth bullet above.

I hope this material is of use!

Dan

Information Roundup – 29 November 2009

Here are tweets from the last few weeks you may be interested in (in chronological order):

I need to take this opportunity to give a big shout out to “Buffalo Littlebones,” our cat. Poor little guy seems a little out of sorts because of all the attention we’re giving to our human children. Yes, you whine incessantly until we let you out, then immediately whine incessantly to be let back in. Yes, it is annoying when you prick at our necks at 3 o’clock in the morning. Yes, that was pretty uncomfortable when you refused to get off my lap for 17 hours straight of driving. Despite all this, dear Buffalo, you will always be our first!

See ya!

Dan

Case Report – Court says party ought to have taken counsel’s word about missing computer

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for production of a personal computer and criticized the moving party for proceeding in the face of a sworn statement by the opposing party’s solicitor that indicated the computer was gone.

The computer once contained information relevant to a loss of income claim. The plaintiff discarded it because it had broke down sometime after she printed and produced invoices from her personal business and sometime before a mediation attempt, which occurred slightly less than a year later. In the interim, the defendant made and sustained a request for electronic copies of the invoices.

When the defendant moved for production, plaintiff’s counsel wrote and later swore that the computer had been discarded and consented to allow the defendant to plead spoliation. Defence counsel persisted and generated some damning evidence in cross-examining the plaintiff’s witnesses, including a statement by the IT professional who the plaintiff relied upon, who said that he never actually examined the plaintiff’s computer.

Though the defendant was clearly onto something, Master Brott was not impressed that the defendant persisted despite the plaintiff’s agreement to deal with a spoliation claim and, in particular, plaintiff counsel’s statement that the computer was gone:

The circumstances leading up to this motion are in my view, a clear example of a proceeding going astray – of not being able to see the forest through the trees. Lawyers take oaths which require them to act in a professional manner. Defence counsel urged me to ignore the evidence of solicitor Sacks because of the contradictions obtained from the plaintiff’s boyfriend and the IT specialist. I am not prepared to ignore the solicitor’s Affidavit, nor the correspondence and telephone information from plaintiff’s counsel to defence counsel advising that the computer is no longer available. Whether the computer was in fact given to the IT specialist or is corrupted or is still available cannot be established at this stage. But what is critical is that counsel has sworn that the computer is no longer available. That should be the end of it! The rest is for trial.

…

… once [the Defendants] received plaintiff’s counsel’s correspondence outlining the corruption of the computer and the further information that the whereabouts of the computer were unknown and unrecoverable, the over-zealous actions of the defendants all the while knowing that even if successful, any Order could not be effective, was inappropriate. The rules encourage parties to proceed in a fair and inexpensive fashion and to attempt to resolve their disputes.

Cerkownyk v. Ontario Place, 2009 CanLII 62065 (ON S.C.).

Case Report – B.C. Court strikes privacy breach claim brought against raiding union

On November 23rd, the British Columbia Supreme Court issued a judgment striking out a privacy breach claim brought by an incumbent union against another union engaged in a so-called membership raid.

The incumbent (the HEU) argued that the raiding union (the BCNU) breached the British Columbia Privacy Act and the British Columbia Personal Information Protection Act by misusing personal information collected from its members in executing a “high pressure campaign.” The BCNU moved to strike the claim. It argued (1) the HEU had no standing to sue on behalf of its members (whether named or not); and (2) PIPA does not support a civil cause of action.

The Court agreed with both arguments. It concluded that both the Privacy Act and PIPA grant an individual right of privacy that cannot be asserted by a union on behalf of its members: “This is a radical defect; the plaintiffs have no entitlement to bring an action based on a violation of another person’s privacy.” On whether PIPA supports a civil cause of action, it said:

PIPA provides an adequate administrative scheme. I find support for this in the provisions of PIPA generally and specifically in s. 57. Section 57 clearly shows that the Legislature considered the issue of civil claims; it only included a right for an individual to advance a claim against an organization for damages after the commissioner has made an order. This has not occurred here.

The Court also struck claims based on fraudulent misrepresentation and deceit, leaving the HEU action to proceed on the basis of interference with contractual and economic relations.

Facilities Subsector Bargaining Association v. British Columbia Nurses’ Union, 2009 BCSC 1562 (CanLII).

Case Report – IPC blesses manual processing of FOI request despite push for “e-access”

On October 29th the IPC/Ontario issued an order in what appears to be a well-litigated dispute about the access request process. It rejected a challenge to the reasonableness of a search and the reasonableness of a fee estimate that was based on the respondent municipality’s manual process of providing access.

The responding municipality’s FOI officer directed officials to conduct searches for responsive records and to print and forward responsive records. The officer then manually de-duplicated and reviewed records prior to providing access. The appellant argued that this process was unreliable and inefficient and that the municipality either should have used its IT department or third-party to process the request using automated means. The IPC deemed the municipality’s chosen process to be reasonable, though it disallowed fees related to 2.5 hours of de-duplication and organization because the municipality did not provide sufficient supporting particulars.

The IPC has, in at least one order, endorsed an “e-access” process in upholding a fee estimate for about $12,500. Though such a process is more in tune with prevailing best practices for records search and retrieval, it will also tend to result in higher costs, all of which can be transferred to an Ontario requester if a third-party service provider is used. Given the requester in this more recent case was asked to pay less than $500 to receive the benefit of the municipality’s (certainly laborious) manual efforts, one may wonder if she really wanted what she asked for.

MO-2472, 2009 CanLII 63119 (ON I.P.C.).

Case Report – Alberta Court of Appeal case discusses qualified privilege and threat reports

Chohan v. Cadsky was decided by the Alberta Court of Appeal on October 16th. The court found that three individuals acted within the scope of a qualified privilege in reporting expressions of concern about a colleague’s mental health and were therefore not liable for defaming the colleague. The Court summarized its finding in the following paragraph:

We dismiss the appeals against Dr. Ohlhauser, Dr. Baker, Dr. Gardener and Capital Health, as we are not persuaded that the trial judge made any reversible error in dismissing those actions. We will address the arguments separately, but commence with the following summary. Dr. Ohlhauser, Dr. Baker, and Dr. Gardener each testified that as a result of expressions of concern from others and/or their personal observations, each had an honest concern about the health of a colleague, and believed that, as a medical professional, he had a duty to either investigate this concern, or inform someone who was in a position to investigate. Each contacted the person he believed appropriate to provide assistance or investigate to ensure that there was no cause for concern. There is no evidence that any one of them contacted individuals who had no interest in knowing and no responsibility to receive the communication because of the position he held in Capital Health. Dr. Block, Dr. Hibbert and Dr. Gardener, the three persons to whom communications were made, each had a responsibility for ensuring that colleagues within their service did not have health issues that might affect patient care or their own well being. These three defendants were not engaged in idle gossip or general discussion in making these communications. In our view, the defence of qualified privilege was designed for exactly such a situation.

The principled aspect of this statement is not surprising, and the application of the qualified privilege defence will always turn on the specific facts. However, given that bona fide reports of potential threats should be encouraged as part of managing workplace (and campus) violence, the case is worth a note.

Chohan v. Cadsky, 2009 ABCA 334.

Workplace Privacy Presentation at the HRPA 20X Annual Conference and Trade Show

On January 27, 2010 I’ll be giving a presentation entitled “Everything You need to Know About Workplace Privacy” at the HRPA’s 20X Annual Conference and Trade Show.

I designed the presentation today around the following topics:

  • Employee privacy rights – the patchwork quilt
  • How to run an internet background check
  • Why and how your acceptable use policy needs to change
  • Yes, you can transfer that data to the U.S., but…
  • How to manage the risk of communicable diseases in the workplace

I’m looking forward to the opportunity to touch on these hot issues and have also left lots of time for questions. If you’re an HR professional who’s attending the conference please consider joining my session.