Author: Dan Michaluk

Case Report – On Wild Coyotes and collecting personal information

The British Columbia Information and Privacy Commissioner’s drivers license swiping case (from July 21st) nicely illustrates some points about justifying personal information collection under a necessity standard – a standard for collection common to both public and private sector Canadian data protection legislation.

The IPC’s most significant finding was that Vancouver’s “Wild Coyote Club” could not require patrons to consent to a drivers license swipe (or surrender a piece of ID) as a condition of service because the related collection of personal information went beyond what is “necessary to provide the product or service.” It affirmed that British Columbia PIPA requires that a mandatory collection be reasonably necessary rather than strictly necessary. It also articulated the following two-part test (emphasis added):

For personal information to be “necessary” for the purpose of s. 7(2) of PIPA, the purposes for the collection, use or disclosure must be integral to the provision of the product or service. In addition, the personal information must fulfill a significant role in enabling the organization to achieve that purpose.

The IPC said that these questions will be assessed in light of the sensitivity of the personal information being collected and whether there are less intrusive means of meeting a legitimate objective for collecting the information.

In one sense, the decision demonstrates that broad grounds of justification based on theories of human behavior are hard to argue. In this case, every patron whose license was swiped also had his or her picture taken. The picture was matched with the information from the license, so the club (and law enforcement) had access to picture-based index of all individuals in the establishment on any given night. The club and the other parties who participated in support of swiping argued that such a system would significantly reduce incidents of violence. Though their theory – that individuals would modify their behavior if they know they are identifiable – is logical, the respondent and intervenors did not present any evidence (either statistical or from social science) to show that their theory was true, or to at least show that swiping provided a significantly better violence  deterrent than video surveillance alone. (The IPC addressed the club’s need to keep banned individuals from entering the club separately, and approved of the matching of identifying information other than drivers license numbers against like identifying information in a banned individuals database.)

In another sense, the decision illustrates that having a better record of an event will not ordinarily be sufficient to justify collecting personal information. One cannot dispute that a drivers license swipe creates a highly accurate record of (1) the fact that a patron presented a drivers license and (2) that the drivers license presented contained certain data in electronic form. So the scanning system in place at the club gave it a very accurate record of due diligence, but this wasn’t sufficient justification for the collection of identifying information itself. On this point, the IPC noted correctly that a drivers license swiping system only records the identification someone presents and does not ordinarily aid in authenticating the individual, which still must be done by a door person’s visual inspection of picture identification. The IPC acknowledged a swiping system protects against “passbacks” – a scheme which involves the use of the same identification piece by two different people – but said the club had presented no evidence to demonstrate that passbacks were a significant problem that it encountered in enforcing the terms of its liquor license.

David Fraser has covered the ID swiping issue very well. Click here for an index of his posts.

Order P09-1, 2009 CanLII 38705 (BC I.P.C.).

Case Report – BCCA considers implied waiver of solicitor-client privilege and non-party production

The British Columbia Court of Appeal has recently published a June 11th oral judgement on an implied waiver of privilege claim and a motion for production of non-party documents.

On the implied waiver claim, the Court held that a pleading by a plaintiff that alleged it would not have entered a settlement agreement had it known about certain fraudulent conduct did not give rise to an implied waiver of solicitor-client privilege in communications related to the settlement. It stressed that a mere allegation as to a state of affairs on which a party may have received legal advice does not warrant setting aside solicitor-client privilege.

On the affirming the chambers judge’s refusal to order production from a non-party, the Court stated, “A chambers judge has a discretion to refuse production of documents that are of marginal relevance where other documents relevant to the same issue have already been produced: see Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770.”

Procon Mining & Tunnelling Ltd. v. McNeil, 2009 BCCA 281.

Case Report – Manitoba sunglasses at night case illustrates key requirement for spoliation inference

A June 30th Manitoba Court of Queen’s bench decision nicely illustrates that an adverse inference for spoliation requires proof of intentional misconduct.

The Court held that the plaintiff contributed to her slip and fall injury because she was wearing her sunglasses at dusk. The defendant’s evidence supporting this conclusion went in through a witness who viewed the incident as it occurred via feed from a surveillance camera and testified that the plaintiff was wearing her sunglasses. The defendant also adduced a photo frame taken from the surveillance tape that showed the plaintiff holding her sunglasses in her hand after the accident. The defendant destroyed the tape itself, however, even though it had made a preservation request to its security department.

The Court rejected the plaintiff’s argument for an adverse inference because it had not proved the tapes were destroyed intentionally (citations omitted):

…there is no evidence that the tape was intentionally or deliberately destroyed so as to justify any spoliation inference, i.e., the presumption that intentionally destroyed evidence would tell against the spoliator. I cannot infer that the evidence was destroyed to affect the litigation. There is no indication that Ms. Park had anything to do with the tape being unavailable (the only evidence the court heard in this regard was hearsay – Ms. Park was told it was taped over). Nor can I conclude that the unavailability of her notes was due to any deliberate act. In any event, Ms. Park saw the incident as it occurred through the camera and she was subject to cross-examination. She maintained that Ms. Kulynych was wearing sun-glasses. I found her to be convincing in her evidence and forthright and reliable.

The Court did not consider whether a remedy should be granted under the abuse of process doctrine in consideration of the apparent prejudice to the plaintiff, though the Alberta Court of Appeal’s leading Black & Decker case suggests that an abuse of process remedy will also only be available if there is proof of intentional spoliation.

Kulynych v. Manitoba Lotteries Corp., 2009 MBQB 187 (CanLII).

Employer access to employee e-mails in Canada

I presented at an OBA privacy conference back in early June but held off posting a short paper I wrote for it entitled, “Employer access to employee e-mails in Canada.” The paper argues that there are signs that the traditional “no expectation of privacy” approach to addressing employer access to employees’ stored communications is waning, leaving employers with a choice between giving clearer notice to employees or, alternatively, implementing purpose-based controls to protect employee privacy.

This is a hot topic north and south of the border, and was so even before the Superior Court of New Jersey Appellate Division issued its much discussed decision in Stengart v. Loving Care Agency on June 26th.

Stengart is about whether privilege is waived in solicitor-client communications that are stored on an employer’s system. Our own leading case on this issue is Daniel Potter, which suggests that privileged communications made by employees on employer systems deserve greater protection than other “private” employee communications. Despite this distinction, the reasoning in Stengart is very broad, very pro-privacy and is further reason for employers to pay heed to the issues I raise in my paper.

For a copy of the full paper, please click here. And please feel free to contact me or comment below with your feedback and ideas.

Case Report – Arbitrator says relevant surveillance evidence is admissible… period

There is a division in Canadian arbitral jurisprudence on whether an arbitrator can (or should) refuse to admit surveillance evidence where the surveillance does not meet a standard of reasonableness. On June 15th, Ontario Arbitrator Stephen Raymond held that relevant surveillance evidence is admissible notwithstanding an alleged breach of privacy. He said:

I do not see that the method by which evidence is obtained has any impact on its admissibility before me. It is either relevant evidence in which case I must admit it or it is not. How it was obtained is of no concern to me. For example, let us assume a situation where a person breaks into a manager’s office and while in the office finds a document that is relevant to a question before an arbitrator. Clearly the action of the person breaking into the office could be pursued criminally and if that person was an employee (bargaining unit member or not) it might be pursued civilly. The illegality of the method by which the document was obtained, however, would not be a consideration in respect of its admissibility before an arbitrator. If evidence that is obtained in a clearly illegal way can be admitted, how is it that evidence that is obtained in a way that offends the sensibilities of many arbitrators but is not illegal is not admissible? The simple answer is that it is admissible.

I also note that many arbitrators who have excluded surreptitious videotape surveillance evidence seem to base their decision, in part, on the nature of the evidence. I do not see how the nature of the evidence impacts its relevance. No arbitral authority has been provided which supports the proposition that the observations of a private investigator hired to observe the actions of an employee is inadmissible or that there be an exclusion of that investigator’s notes of the observations made. Furthermore, if the investigator takes pictures of the employee, such evidence is admissible. It is only the videotape (moving pictures) that seems to be the type of evidence in which arbitrators say the employer has gone too far.

I also am of the view that the right to privacy, however it may arise, is not germane to this issue. If the right exists, and I take no view at this time as to whether it does or does not, it can be pursued for its infringement. If an employee has such a right and this right has been infringed then, in the context of a collective agreement, it can be pursued as a grievance and a remedy for the infringement of the right can be fashioned by an arbitrator.

The employer was represented by Mike Fitzgibbon of Thoughts from a Management Lawyer.

Re Ready Bake Foods Inc. and United Food and Commercial Workers International Union, Local 175, [2009] O.L.A.A. No. 308 (Raymond).

Case Report – Court orders plaintiff to list relevant documents contained in Facebook site

Those following the litigation of production disputes related to Facebook pages will be interested in the Ontario Superior Court of Justice’s July 6th order in Wice v. Dominion of Canada General Insurance Co.

After hearing a motion in this motor vehicle accident claim, Boswell J. ordered the plaintiff to include relevant documents from his Facebook account in a further and better affidavit of documents, granted the defendant leave to cross-examine the plaintiff on the affidavit and ordered the plaintiff to preserve all information in his Facebook account for the duration of litigation. He followed the Court’s now well-known decision in Leduc v. Roman.

Wice v. Dominion of Canada General Insurance Co., 2009 CanLII 36310 (ON S.C.).

Case Report – SCC alters section 24(2) test… applies it in search and seizure case

On July 17th, the Supreme Court of Canada issued two search and seizure decisions. In R. v. Harrison, the majority applied a newly-developed test for excluding evidence obtained in breach of the Charter and excluded evidence obtained in a “brazen” and “flagrant” unlawful search of a rental car. In R. v. Shepherd, the Court unanimously held that a brethalyzer demand was made based on reasonable and probable grounds and was therefore lawful.

Real and non-conscriptive evidence excluded in Harrison

The Ontario Court of Appeal’s majority decision in Harrison has been criticized for allowing in evidence that would bring the administration of justice into disrepute. It is about a drug charge that followed a police demand to pull over a rental car on a Northern Ontario highway. The officer had no real reason to stop the car other than he had been told it was rented at the Vancouver airport and it was driving at only the speed limit. After the stop, the officer learned that the driver was driving with a suspended license, arrested the driver and searched the vehicle purportedly incident to that arrest. He turned up a large stash of cocaine.

Though the trial judge found the officer’s in-court testimony to be misleading, he admitted the evidence of the found drugs because he felt the criminality of the officence to be serious. A majority of the Ontario Court of Appeal agreed.

A majority of the Supreme Court of Canada, with Dechamps J. dissenting on his own, held that the evidence ought to be excluded based on the police officer’s blatant disregard for Charter rights and his misleading testimony. The majority applied the new three-part test articulated in the Court’s concurrently-issued decision in R. v. Grant, in which it said a court must assess and balance the affect of admitting evidence on society’s confidence in the justice system having regard to:

  1. the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct)
  2. the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little)
  3. society’s interest in the adjudication of the case on its merits

This framework was endorsed by the majority Grant to encourage a more contextualized approach to admissibility and to back away from a rule that conscriptive evidence is generally inadmissible. In Harrison, the found cocaine was neither concriptive evidence nor unreliable in any way. Regardless, the Court held that it should have been excluded, finding that the exclusion of reliable evidence of a serious offence did not outweigh the importance of maintaining Charter standards.

For an early critique of the Grant framework, see here.

R. v. Harrison, 2009 SCC 34.

Trial judge wrong in finding officer had no reasonable grounds for breathalyzer demand

The sole issue in Shepherd was whether a trial judge erred in finding that a police officer had insufficient grounds to demand a breathalyzer. The judge that the officer had a sufficient subjective belief but that his belief was not objectively reasonable, in part because he had relied on the accused person’s initial failure to pull over. The accused person said that he didn’t pull over because he thought the police car was an ambulance. The trial judge felt this excuse was valid, and held that the officer did not have reasonable grounds even though he testified that the accused person looked lethargic, had red eyes and smelled of alcohol.

The Court held that the existence of reasonable grounds is a question of law subject to review on a standard of correctness. It then held:

With respect, it is our view that the trial judge erred in finding that the officer’s subjective belief of impairment was not objectively supported on the facts. The officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd. The trial judge placed substantial weight on Mr. Shepherd’s explanation that he thought the police vehicle was an ambulance. Leaving aside the fact that this confusion itself can be a sign of impairment, it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. In our view, there was ample evidence to support the officer’s subjective belief that Mr. Shepherd had committed an offence under s. 253 of the Criminal Code. We therefore conclude that the officer had reasonable and probable grounds to make the breath demand, and that Mr. Shepherd’s Charter claim must fail.

R. v. Shepherd, 2009 SCC 35.

Case Report – Whistle-blower leaks privileged report to Crown… charges stayed

Today, the Ontario Court of Appeal allowed an appeal of a noteworthy case about breach of privilege by the Crown.

The case involves an investigation report prepared at the request of external legal counsel after a critical injury for which Occupational Health and Safety Act charges were ultimately laid. An employee who was given a draft of the report on the undertaking he destroy it gave a copy to the Crown. This was after the company had asserted privilege to the Ministry inspector, who had agreed not to order the report’s production.

When the Crown disclosed the report to the company in its Stinchcombe production the company immediately objected, and at trial moved before a justice of the peace for a declaration (that the report was privileged) and a stay. It initially succeeded in obtaining a declaration, a stay and an order for $38,000 in legal costs. On appeal to a judge, the Court overturned the stay and the costs order. It held that the proper remedy for breach of the defendants’ section 8 rights was an order excluding the report and that the motion for a stay based on prejudice to trial fairness was premature.

In allowing the appeal, the Court of Appeal started by minimizing a statement made by the justice of the peace about the reporting being “primarily informational.” It held the lower court had found the report was subject to solicitor-client privilege and that this point was not challenged in the appeal.

The Court of Appeal then held that the presumption of prejudice endorsed by a majority of the Supreme Court of Canada in Celanese applies when the Crown comes into possession of a defendant’s solicitor-client communications:

Counsel for the Crown in this court sought to distinguish Celanese on the basis that it was a civil case in which the appellants were “attempting to utilize a civil onus to achieve a criminal result”. I reject this submission. In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.

On the facts, the Court of Appeal held that a stay was the appropriate remedy. The basis for the finding is narrow. It stressed that the justice of the peace had made a specific finding that the report set out items that could be used to the disadvantage and prejudice of the defendants and held that the Crown had not led any evidence about its distribution and use of the report to rebut the inference.

R v. Bruce Power, 2009 ONCA 573.

Information Roundup – 13 July 2009

Other than the case law I’ve posted on, here’s what I’ve been reading since the last Roundup on July 5th: 

Every so often I re-jig my approach to digesting information from the web. Since I started on Twitter in January I’ve found it great for picking up on current affairs. I’ve liked the “living index” quality of Twitter so much that I’ve really been far too neglectful of RSS feeds – pretty much mass deleting everything rather than keeping up and digesting.

About a week ago I went back and did some serious weeding of my NewsGator feeds and eliminated any feeds that only broadcast the type of information I’m likely to get through Twitter. At the top of my new “desert island” list is the University of Calgary’s “ABlawg,” which struck a chord with the two posts linked above. I also like Foley Hoag’s Security, Privacy and the Law, Littler’s Workplace Privacy Counsel, Proskauer Rose’s Privacy Law Blog and K&L Gates’ Electronic Discovery Law blog via RSS.

Take care!

Dan

Case Report – Court says administrative tribunal can publish personal information

The Saskatchewan Court of Queen’s Bench issued a decision on March 9th that is significant to administrative tribunals and others with an interest in access to records of judicial and quasi-judicial decisions. The Court held that the Saskatchewan Automobile Injury Appeal Commission violates neither the Saskatchewan Health Information Protection Act, the Saskatchewan Freedom of Information and Protection of Privacy Act nor the Charter by publishing decisions that include the personal information of claimants.

The Commission hears appeals of adjuster decisions under the Saskatchewan Automobile Insurance Act. It is required to hold open hearings (subject to its own discretion to order otherwise), required to provide written reasons and required to keep records it considers necessary for the proper conduct of its business. Given the nature of its appeals, Commission reasons often include a description of evidence related to claimants’ diagnoses, prognoses and treatment programs.

The applicant moved for relief in Court after the Commission denied her request to forgo publication of its reasons for deciding her claim or, alternatively, redact her name, age, occupation and other identifying details from its reasons. She argued that disclosure was prohibited by Saskatchewan HIPA, Saskatchewan FIPPA and the Charter.

The Court found that the Commission’s adjudicative mandate necessarily implies the power to publish its reasons in the internet and then rejected all three of the applicant’s arguments.

Its most significant finding was on Saskatchewan FIPPA, where it held that the disclosure of personal information in reasons was permissible because the Commission’s written reasons are excluded from the Act as “material that is a matter of public record.” It explained:

I accept all of these three definitions of “public record”. The Commission is a public adjudicative body required to make and keep its decisions. Section 92 of the Regulations states that Commission hearings are open to the public unless the Commission orders otherwise. Its decisions are open to the public even without publishing them on the web. Further, s. 95(1) and 95(2)(d) places an obligation on the Commission to compile a record of a hearing that was held, which consists in part of the written decision of the appeal commission. It is common ground that the decision is on file at the Commission and accessible to the public. The decision of the Commission contains information prepared by a government institution which has a duty to inquire into the issues associated with the hearing and record its findings permanently.

Further, it seems illogical that members of the public could sit at the hearing and listen to all of the evidence but not have access to the decision of the Commission. The written decision is the last piece of the hearing process. Public access to decisions made by the Commission is important to assist individuals in presenting their claims and understanding the decision-making process of the Commission and to further the principle of public access to adjudicative bodies.

The Court also held that publication would otherwise be permitted under the provision in Saskatchewan FIPPA that authorizes non-consensual disclosures of personal information, in part because the personal information in reasons for decisions is collected for a purpose consistent to the purpose of publishing such information.

The Court’s treatment of the applicant’s Charter argument is also worth note. The Court dismissed a section 7 “security of the person” claim, stating “Section 7 does not protect an individual who is suffering from the ordinary anxieties that a person of reasonable sensibility would suffer as a result of being involved in an open adjudicative process.” In the alternative, the Court held that the publication of reasons did not violate the principles of fundamental justice in light of the open courts principle, which it stressed applies equally to administrative tribunals.

This decision must be understood in the context of the longstanding dialogue between the Saskatchewan IPC and the Commission about the publication of its decisions, and is remarkable in that it conflicts so strongly with the position taken by the IPC in a 2005 investigation report (here) and a paper it published in early 2009 (here). The IPC (who did not participate in this court case) made a number of recommendations in 2005 that the Commission initially refused to follow, though it eventually came into line by issuing an internet posting policy effective June 1, 2008. The Commission’s new policy contemplates publication of reasons with personal identifiers and identifying information removed, while also granting the public access to physical copies of unredacted reasons.

Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106 (CanLII).