Author: Dan Michaluk

Case Report – FC orders party to generate and produce an accounting report

In this August 13th decision, the Federal Court rejected a party’s argument that it should not be compelled to create a record that does not exist and ordered it to generate and produce monthly financial statements from its accounting software program. Though the party did not retain copies of the specific reports requested, the Court held it was possible to generate them with minimal burden. For a look at the Ireland Supreme Court case on the issue of creating records, click here.

Thanks to Peg Duncan, keeper of the Canadian E-discovery Case Law Digest, for passing this on.

Shields Fuels Inc. v. More Marine Ltd., 2008 FC 947.

Information Roundup – 14 September 2008

Here are some new readings that may be of interest. This week they come with a theme – legal issues relating to new computing models.

This blog post comes to you from Halifax. I’m on a surf/construction management trip and have a lot of time to blog and work because I couldn’t imagine smaller waves than what we’ve had this weekend. So I’ve been camping out at our half-built house, reading and blogging off of an air card powered by a portable generator. This sets a new wireless standard for me. Ocean views with a horse in the paddock out front. Not bad.

See ya!

Dan

Case Report – NBCA says counsel can continue to act given nature of privileged records

On July 24th, the New Brunswick Court of Appeal affirmed an order that allowed counsel who received and read privileged communications to continue to act and affirmed the part of the order that stated that counsel was not precluded from establishing the facts underlying the privileged communications.

The defendants claimed that various written statements from a witness for an adjusting firm retained by legal counsel were subject to solicitor-client privilege after they were inadvertently disclosed to the plaintiff along with a draft affidavit of documents several days before examinations for discovery. The plaintiff had thoroughly reviewed and made notes of the written communications in question by the time its counsel showed up at the discovery and was told what he had read was privileged. The plaintiff eventually destroyed the written communications, though it kept its notes and made the point that its actions were taken without prejudice to its right use information contained in the communications now destroyed.

The defendants filed a motion to disqualify the plaintiff’s counsel, but only succeeded in obtaining a protective order that required the destruction of documents and notes and prohibited use of documents. The order also specifically stated that the plaintiff was not precluded from establishing the facts underlying the privileged communications. The defendants appealed, and the third-party defendants who had not participated in the motion for fear of gaining knowledge of privileged communications filed a cross-appeal, arguing that they were now at a relative disadvantage and deserved access to the facts underpinning the privileged communications.

In dismissing the appeal and cross-appeal, the Court of Appeal stressed that solicitor-client privilege only protects communications and not underlying facts. It said:

At the end of the day, one is driven to conclude that the inadvertent production of the Documents probably operated to do no more than this: it acquainted Canada Post and Cox & Palmer with information they would have acquired, sooner or later, as the litigation unfolded. The law would be in a sad state if accelerated acquaintance with non-privileged information, in circumstances such as those that avail here, sufficed to bring about the principled removal of a solicitor of record.

Though this statement may be valid on its own, the judgement was heavily swayed by the Court’s scepticism about the privilege claim. It did not review the impugned communications (nor did the motions judge), said the motions judge’s assumption that the communications were privileged was “questionable” and that, in any event, the documents were likely “fact-focussed.”

Euclide Cormier Plumbing and Heating Inc. v. Canada Post Corporation, 2008 NBCA 54 (CanLII).

Case Report – Arbitration board upholds challenge to post-incident testing provision

On September 3rd, an arbitration board chaired by David Elliot held that a post-incident drug and alcohol testing provision was unreasonable because it required for an automatic test of any employee “involved” unless there were reasonable grounds to find that alcohol or drugs did not cause the incident.

The board felt that this reverse onus was improper. It did not, however, find that an employer must have reasonable grounds in order to test, and endorsed an approach whereby a test could also be ordered where there is, “no credible explanation for the accident, near miss or other potentially dangerous incident.” This finding, which seems sensible, may have been influenced by evidence that supervisors were applying the reverse onus improperly by asking, “Can the use of drugs or alcohol be ruled out?”

Re Communications, Energy and Paperworkers Union, Local 707 and Suncor Energy Inc. (3 September 2008, Elliot).

Case Report – BCCA dismisses leave to appeal forensic inspection order

On September 9th, the British Columbia Court of Appeal dismissed an application for leave to appeal of an order for forensic inspection of a home computer. The applicants argued that the propriety of such orders is of broad significance to the practice, but Bauman J. responded, “In my respectful view, the plaintiff overstates the significance of the case and the scope of the order at bar.”

For a summary of the reasoning given in support of the order, click here.

Honour v. Canada, 2008 BCCA 346.

Case Report – Alberta OIPC releases two biometrics decisions

The Alberta OIPC has recently released two reports on the use of biometrics for timekeeping purposes.  In both, the OIPC upheld the use of biometrics after conducting a contextual analysis that de-emphasized the invasiveness of standard biometric timekeeping systems.

Encrypted form in which information stored weighs in favour of use

The first report, dated August 7th, was made in response to a complaint brought under Alberta’s public sector privacy legislation. The complainant objected to a biometric timekeeping system which relied on a numeric template produced from hand measurements. The rationale for the system – time fraud protection and administrative efficiency – was not particularly unique, though the institution did provide evidence that it had dismissed one employee for buddy punching in the past.  The adjudicator nonetheless held that the institution met the FIPPA necessity requirement, in part because the information was stored in a form in which it was not likely to be misused.

The complainant was under the impression that the hand scanner would “take [her] hand print.”  If the hand recognition system gathered biometric information that was useful in another context, this would represent a potential privacy risk.  For example, if the hand scanner captured an image of the employees’ palms or fingerprints, this information could be used in a law enforcement context.  Having employees participate in a mandatory system that increases risk to their privacy would certainly be intrusive.  However, the system does not gather a palm print or finger print; it collects hand measurements, which it translates into a unique number (the template).  The template is useful only when combined with the employee’s identification number and the payroll system at Intercare.  It seems unlikely that the template could be put to any other use, mitigating the privacy risk and making it less intrusive.

While this is a helpful finding for employers, the adjudicator did state, “This finding does not represent ‘privacy carte blanche’ for public bodies to implement biometric systems.”

Investigation Report F2008-IR-001 (Alberta OIPC).

Use of biometrics okay, but notice especially important for employers

The OIPC reached the same conclusion on the question of use in the second decision, dated August 27th and made in response to a complaint filed under the Alberta PIPA.  This case involved the use of a numeric template produced from employee thumbprints.  The employer’s rationale for use was fairly general, but in finding the employer met the reasonable collection standard in PIPA the OIPC drew an express link between the employer’s rationale for use and the form in which the biometric information was stored.  It said:

While Empire Ballroom previously used another method (the time card/punch clock) it was ineffective due to abuse. Having the manager sign each employee in and sign out was inefficient, and the biometric sign-in system is a paperless system that yields more accurate arrival and departure information that is far more difficult to dispute. The system is also more secure in that employees are unable to access each other’s personal information. In terms of this finding, it is significant that Empire Ballroom does not collect actual thumbprints. Were that the case, my findings might be different.

… an important distinction must be made between collection of actual biometric information used for “one-to-one identification” of a person, and collection of numeric representations of biometric attributes for “one-to-one authentication” of an individual. In the latter case, a finger, hand, voice, or facial imprint is not actually captured; instead numbers representing unique features of a biometric, from which the biometric cannot be reconstructed or reproduced, are collected.  

Although endorsing the employer’s use biometrics for timekeeping purposes, the OIPC held that the employer did not meet the reasonable notification requirement embedded in the Alberta PIPA employee personal information provisions because it did not explain to employees that it would only collect a numerical representation of thumbprints and not thumbprints themselves.  It stressed that identifying personal information to be collected with specificity is important, particularly when information is to be collected through new and misunderstood technologies and particularly for employers, who are relieved from the ordinary consent requirement under PIPA.

Investigation Report P2008-IR005 (Alberta OIPC).

Information Roundup – 5 September 2008

Here are some links which may be of interest.

Just heading up north for the weekend for my sister-in-law’s wedding.  Should be a good time.  Hope you have a good one too!

Dan

Information-sharing a part of recent Dawson College discussion

The media has reported on the release of the Coroner’s report on the 2006 Dawson College shooting and Quebec’s new gun control law, which came into force on Tuesday. I believe the report is only available in French (though if someone knows otherwise, please let me know).

The focus of the recent discussion is on gun control, but there are a number of information-related points of significance. First, the media again has suggested that privacy laws prohibited information-sharing and contributed to the incident. Second, the Quebec coroner’s report apparently recommends that health and education officials should have access to the federal gun registry so they would know if a student or patient has a gun, which begs the tough question, “And then what?” And finally, the new Quebec law includes a requirement on teachers and educational administrators to report suspicious behaviours to the police and a statutory authorization for these individuals and certain health care professionals to make such reports. The standard for reporting is a “reasonable grounds” standard and there must be a link between the behaviour and harm “by the use of a firearm.”

Notably, under the new Quebec legislation, health care professionals who are not educational administrators – “professionals occupying a management position” in the language of the Bill – do not appear to be subject to a mandatory reporting duty. Rather, they are given a discretion to report based on observation of behaviour that does not necessarily meet the traditional risk of “serious and imminent harm” standard but is linked to the use of a firearm.

As readers of this blog know, I’m very interested in the topic of information sharing and managing the threat of on-campus violence. For more on this topic, see this post.

Case Report – Court considers nature of spoliation claim in allowing leave to amend SOC

On August 18th, Master McLeod granted a plaintiff leave to amend its statement of claim to add an allegation of spoliation brought first on the eve of trial.

The action was brought by a doctor whose hospital privileges were revoked in 1991. He sought to add a claim that original notes of the board meeting at which his privileges were revoked were suppressed in a purposeful attempt to obscure relevant details of how the meeting unfolded. The spoliation allegation was made, in part, based on actions taken by the hospital’s former executive director and a member of the medical staff who the plaintiff alleged instigated the case against him because of a personal vendetta. The executive director was alive and denied the spoliation allegation, but the allegedly vindictive doctor had died sometime after 1991.

Master MacLeod held that the executive director had ultimate responsibility for preparation of the corporate minutes and could answer the spoliation claim. He also dismissed an argument that amendment should be denied because of the expiration of a limitation period, suggesting that spoliation should at least be available to the plaintiff as an evidentiary principle:

For the purpose of this motion it is therefore important to understand that while spoliation could be an independent cause of action in circumstances that are yet to be defined, it is not necessarily a separate cause of action. One might imagine that a court convinced that evidence has been destroyed or suppressed would first have to determine the case based on the available evidence and if the missing evidence is critical would have to decide whether to apply a spoliation negative inference. If the plaintiff is successful in proving its case on that basis, there would be no need to rely on a tort of spoliation. Moreover a court could sanction for destruction of evidence by other means including costs without resort to a novel tort. One might also suppose that spoliation could constitute an independent wrong for punitive damages purposes without being recognized as full fledged independent tort captured by the Limitations Act…

It follows that spoliation may give rise to either an evidentiary presumption or to sanctions or to both without being characterized as tortuous conduct. If an independent tort of spoliation does develop, then it is not possible to define with precision what it will ultimately look like nor when all elements of the cause of action will accrue. For these reasons, the Ontario Limitations Act, 2002 may or may not apply. The Limitations Act is not a bar to these amendments.

Consistent with his view that the litigation of the spoliation tort claim should be fully left to the trial judge, Master MacLeod also noted that the defendant could plead the Limitations Act in its defence.

Zahab v. Salvation Army, [2008] O.J. 3250 (S.C.J.) (QL).

Case Report – PEI Court of Appeal says civil rules trump litigation privilege

On August 26th, the Prince Edward Island Court of Appeal issued a principled judgement on the scope of litigation privilege as it stands against the production and discovery requirements in the Nova Scotia civil rules.  

Rule 31.06 in the Prince Edward Island Rules of Court governs oral discovery and requires a person who is examined to answer “any proper question relating to any matter in issue in the action.” The identical provision exists in the Ontario Rules, where it has been interpreted to override litigation privilege subject to provision’s own express limitations.  The PEI Court of Appeal explained:

The Ontario courts give a plain meaning to Rule 31.06 and a meaning that can be reconciled with Rule 30 which permits a claim for privilege over a document itself. Rule 31.06 means that information relevant to matters in issue must be disclosed in oral discovery, and to this extent the right of litigation privilege has been abrogated.  Documents remain protected from disclosure but the evidence in a particular document which is relevant to the proof of the facts in the matter must be disclosed in accordance with Rule 31.06.  The opinions obtained by a party from an expert and which the party may find unfavourable to its position continue to be protected by litigation privilege upon the undertaking from the party that the opinion will not be relied upon at trial.

It endorsed this approach and rejected the contrary position taken by the Manitoba Court of Appeal, which has held that the Ontario (and now Prince Edward Island) view may “fatally main the litigation privilege rule.”

Llewellyn v. Carter, 2008 PESCAD 12.