On November 18th, the British Columbia Court of Appeal dismissed an appeal in which allegations of spoliation were made. The outcome is not remarkable, as the claim was based on the routine destruction of records pursuant to policy before litigation was reasonably contemplated. In a testament to how interesting this issue has become, however, Madam Justice Rowles went on gratuitously about spoliation in great detail, describing the debate about the doctrine in both Canadian and American law. If you too are interested in the issue, this case is worth a read.
Author: Dan Michaluk
Case Report – BCCA rejects request to postpone production to aid a test of credibility
On November 19th, the British Columbia Court of Appeal dismissed a defendant’s motion to postpone the production of a non-privileged video surveillance tape so it could better test the plaintiff’s credibility in oral discovery.
The dispute was about the discretion to order relief from production that is granted expressly by Rule 26(1.2) of the British Columbia Supreme Court Rules. The essence of the Court of Appeal’s decision is captured in the following excerpt:
In my view, it is the extensive scope of this common law disclosure rule that created the need for reasonable limitations. Stated in another way, it is the “slavish” application of R. 26(1) which informs the scope of R. 26 (1.2).
The appellants seek to distinguish these decisions under R. 26(1.2) on the basis that they do not involve a key issue of credibility. They submit that, in this case, an order postponing the production of the surveillance videotapes would give them the opportunity to test the willingness of the respondent to lie about her claim. They argue that, in the absence of such an order, the respondent might tailor her evidence to fit the scenario depicted in the videotape.
With respect, I do not accept this argument as representing a valid purpose for an application of R. 26(1.2). In this case, there has been no factual determination regarding the respondent’s truthfulness, or lack thereof. This is the appellants’ theory of liability, and it is for them to establish in the course of the trial. Nor am I persuaded that the Rules of Court were intended to be used in a manner that would displace a right of a party granted under them, in favour of creating an opportunity for an adverse party to advance their theory of a fact in issue.
This excerpt followed a detailed lead-in on how Rule 26(1.2) has been applied to protect privacy (by allowing for the redaction of non-relevant and sensitive information) and to encourage proportionality in production. The only other jurisdiction with a comparable provision is the Federal Court (see section 230 of the Federal Court Rules).
One to watch – Criminal background check appeal heard by the OCA
The Ontario Court of Appeal issued reasons today for orally dismissing an application brought by Canadian Civil Liberties Association to intervene in the appeal of Tadros v. Peel Regional Police Services. This is a case from last October in which the Ontario Superior Court of Justice held that a police service unlawfully disclosed information about an individual’s withdrawn criminal charges in the course of conducting background checks (see “Breadth of disclosure in criminal background checks unlawful” here). The Court of Appeal’s procedural decision indicates that the merits of the appeal were to be heard yesterday and the day before.
Case Report – ABCA finds appeal of PIPA time limits issue moot
On November 14th, the Alberta Court of Appeal held that an appeal by the Alberta Information and Privacy Commissioner was moot because the complainant had passed away. This leaves intact the Alberta Queen’s Bench’s decision that the 90-day time limit for completing an inquiry in section 50(5) of PIPA is mandatory. It also may do away with the first drug testing complaint brought under PIPA.
Case Report – Fed Ct. considers “identifiability” question
The OPC blog recently noted a case from February where the Federal Court held that the disclosure of the data about the province from which adverse drug reactions were reported to Health Canada was personal information.
The proceeding followed an access request made by the CBC. Health Canada had given the CBC some information from its adverse drug reactions database but denied access to the “province” field. The CBC brought a court application, and the OPC intervened in support of Health Canada’s decision.
In disposing of the matter, the Federal Court accepted a “serious possibility” test proposed by the OPC:
Information will be about an identifiable individual where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information.
It accepted that disclosure of the province field would meet this test based on the other information disclosed by Health Canada (which included a subject’s height, weight, age and reaction description among other data) and other publicly available information.
This is a big issue. Questions: Was the outcome implicitly driven by the sensitivity of hte information? Should that be part of the test?
Case Report – Privacy tort damages are distinct from assault damages
The Ontario Superior Court of Justice’s October 20 decision in Warman v. Grosvenor has been well-covered in blogs and by the national media. The Court ordered the defendant to pay $50,000 in damages for assault and defamation for what the plaintiff claimed was an internet and e-mail based “campaign of terror.”
The Court did dismiss the plaintiff’s breach of privacy claim, which he based on the defendant’s act of publishing his home address (identified with the aide of an aerial map). Significantly, the Court held that the damages for breach of privacy only flow from harm that is not subsumed by the torts of defamation (which addresses harm to reputation) and assault (which the Court said addresses the interest in freedom from fear of being physically interfered with). In this case, the Court held that the damages claimed by the plaintiff were subsumed by the damages claimed for assault.
Warman v. Grosvenor, [2008] O.J. NO. 4462 (S.C.J.) (QL).
Case Report – Div. Ct. considers pre-hearing production of psychiatric records
On November 4th, the Divisional Court considered conflicting jurisprudence and held that section 35(9) of the Ontario Mental Health Act does not require a court application to be heard before psychiatric facility medical records can be produced to another party pursuant to a pre-hearing production order. It held that section 35(9) only establishes a precondition to the admission of psychiatric records as evidence and to the hearing of oral testimony about information obtained in the course of assessing or treating a patient in a psychiatric facility.
Toronto Police Association v. Toronto Police Services Board, 2008 CanLII 56714 (ON S.C.D.S.C.).
Case Report – Appeal in eBay PowerSellers case dismissed
On November 11th, the Federal Court dismissed an appeal in the eBay “PowerSellers case.”
This was an appeal of eBay’s unsuccessful application to vacate a production order made under section 231.2 of the Income Tax Act. The order required two Canadian eBay subsidiaries to produce data about specific Canadian eBay users that resided on servers operated by eBay’s American subsidiary in the United States.
The Court of Appeal held:
- that the data sought was not “located” in the United States (and therefore subject to different production power) given eBay Canada’s right of access to the information and ready means of gaining access to the information;
- that it should not depart from its recent decision in Greater Montreal Real Estate Board, where it held that an production order seeking access to information unnamed persons under section 231.2 may be granted if the information is “required to verify compliance with the Act by one or more unnamed persons in the group” or that “the information is required for a tax audit conducted in good faith”; and
- that the motions judge did not err by failing to give notice to eBay US and eBay International, who were said by eBay Canada to “own” the records and information in question.
Hat tip to Michael Geist, who provides his views on the case here.
eBay Canada Limited v. Minister of National Revenue, 2008 FCA 348.
Case Report – Party pays for executing Anton Piller at the wrong address
On October 27th, the Ontario Superior Court of Justice ordered a party to pay $15,000 in damages for trespass plus costs on a full indemnity basis for misidentifying its intended target and seizing documents from the wrong target’s residence based on what the Court held to be an inadequate investigation. The order was made on a motion brought by the subject of the Anton Piller, who waived any claim to mental distress damages so he could have an immediate remedy.
Multimedia Global Management v. Soroudi, [2008] O.J. No. 4383 (S.C.J.) (QL).
Case Report – BCCA lets negligent investigation claim proceed against individual employee
On November 5th, the British Columbia Court of Appeal held that it was not plain and obvious that an individual who directed an investigation into an allegation of employment-related misconduct did not owe a duty of care to the subject of the investigation.
The facts of the case are not unique. A school board received a complaint that a principal had been physically abusive to a teaching assistant. The superintendent retained an external investigator, who investigated and prepared a report that the superintendent relied upon in issuing a letter of discipline. Although the principal’s legal counsel objected that the principal had not been given an opportunity to review and respond to the final report before discipline was imposed and requested that the board refrain sending a copy of the letter to the British Columbia of College of Teachers before such an opportunity was granted, the superintendent nonetheless sent the letter to the College. The principal sued the school board and the superintendent for various deficiencies in the investigation and for publishing the letter of discipline.
The Court of Appeal held the action should not be struck because it was not plain and obvious that the superintendent owed no duty of care. It distinguished the Ontario Court of Appeal’s recent finding in Correia v. Canac Kitchens as being a case about whether an employer itself owed a civil duty of care to its employees in conducting internal investigations. Though the Ontario Court of Appeal rejected such a duty in Correia, according to the British Columbia Court of Appeal it did not address whether an individual employee could owe an independent duty of care to another employee under investigation. The British Columbia Court of Appeal also held that the policy reasons that weigh against recognizing an employer duty of care did not apply to claims made against an individual employee.
The Court also rejected the superintendent’s attempt to strike the action because he was acting strictly in the course of his employment. It held that the well-known principle in Said v. Butt (that shields employees from liability for causing a breach of contractual duties owed by their employers) does not extend to the tort of negligence even when the acts alleged to be negligent occurred in the performance by the employee of a contract between the employee’s corporate employer and a plaintiff.
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