Author: Dan Michaluk

Information Roundup – 26 August 2008

Here are some readings you may find interesting.

  • “What Price Privacy?”  This is a great self-critical video by the Australian Broadcasting Corporation on the Australian Law Reform Commission proposal for a new statutory privacy tort. Hat tip to Peter Timmins.
  • “Universities Try to Control Students off Campus.” About a trend towards more expansive non-academic codes of student conduct.  It includes an odd statement from a student services administrator who suggests the expansion is about educating students on teaching responsible citizenship. I think it’s more driven by a new recognition that off-campus behavior is relevant to on-campus safety and, to a lesser degree, by the virtualization of harms. (Associated Press) 
  • Craig Ball, “When All Agree to Delete.”  About theft of information by departing employees.  He says, “Before you include data obliteration as a condition of settlement, be certain you’ve considered all the steps needed to effectuate reliable eradication, as well as the total cost and potential disruption.” (Law.com)

Not much to report on the personal side, other than I’m in need of a good surf. Thankfully, the Atlantic surf season is upon us.

See ya!

Dan

Case Report – Crown violates section 8 by obtaining employment records via subpoena

On July 16th, Mr. Justice Gary Trotter (formerly of Queen’s University Law School) held that the Crown conducted an unlawful search and seizure by obtaining an accused person’s employment records via subpoena rather than search warrant.

While noting that subpoenas are issued within a judicial process, he accepts the defence argument that proceeding by way of subpoena to seek records belonging to an accused person deprives the accused person of the procedural safeguards embedded in the Criminal Code search warrant provisions.  He states:

The police should have applied for a search warrant to obtain Ms. Incognito-Juachon’s employment records.  In failing to do so, the police denied her the protections of the search warrant provisions of the , which are now underwritten by s.8 of the Charter.  The police were no more entitled to access Ms. Incognito-Juachon’s employment records with a subpoena than they were entitled to subpoena her legal file from her current or former counsel: see Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney Genera): Regina v. Fink, (2002), 167 C.C.C. (3d) 1 (S.C.C.).  A search warrant is required in both instances. This is not to suggest that the police cannot use the subpoena process for investigative purposes, once judicial proceedings are afoot.  However, in this case, where the sole purpose in obtaining the subpoena was to obtain the private records of an accused person, an application to obtain a search warrant was required.  The failure to obtain a search warrant infringed Ms. Incognito-Juachon’s rights under s.8 of the Charter.

There’s a significant discussion of an employee’s interest in his or her employment records, which Trotter J. notes are deemed to be “private records” for certain purposes under the Criminal Code.  While finding that an accused person’s interest in his or her employment records is of such a character to demand the Crown retrieve them via search warrant, he also notes that employment files are kept by employers subject to a broad right of use (and therefore, in the circumstances, the Crown’s breach was less serious).  

Most employers would have a different view about employment records than Trotter J. – at least regarding non-medical employment records.  They would say they “own” the records subject to any employee rights granted under contract or by privacy statute. This position is not threatened by this case, which has a significance that’s defined to its criminal context.

R. v. Incognito-Juachon, 2008 CanLII 36164 (Ont. S.C.J.).

Case Report – Federal OPC dimisses complaint about cross-border personal information transfer

On August 7th, the Office of the Federal Privacy Commissioner of Canada issued a report dismissing a PIPEDA outsourcing complaint filed by Philippa Lawson of the Canadian Internet Policy an Public Interest Clinic.

The report echoes the position the OPC established in Case Summary 313 and Case Summary 333 – that is, that the transfer of personal information into the United States does not necessarily breach the safeguarding requirement in PIPEDA because it exposes the information to the dictates of United States law, but that notification is required given the principle of openness. The OPC does give a little more detail on the required standard of notification in this report than it has done in the past:

Finally, organizations that outsource the processing of personal information must provide sufficient notice with respect to the existence of service-provider arrangements, including notice that any foreign-based service provider may be required by the applicable laws of that country to disclose personal information in the custody of such service provider to the country’s government or agencies. In this respect, CanWest respected its obligation by reliably informing its subscribers, new and existing, of its arrangement with a new U.S.-based e-mail provider and of the potential impact on confidentiality of subscriber information. Consequently, Principle 4.1.3 was not contravened.

The report has been posted on CIPPIC’s website. Hat tip to Michael Geist.

Case Report – Identifying web user through ISP does not invalidate subsequent police search

On August 8th, the Ontario Court of Justice dismissed a Charter application that was based, in part, on a challenge to an RCMP letter request to Bell Canada, who answered the request and identified the accused as being associated with several internet protocol addresses at specific points in time.  The local police later obtained a search warrant for the accused’s home, seized computers containing child pornography and laid charges.

Mr. Justice Lalande distinguished R. v. Kwok – in which the Court found a Charter breach and excluded evidence in similar circumstances earlier this year – by noting that the judge hearing Kwok did not receive any evidence about the ISP’s terms of service. Though noting that the Bell Sympatico terms of service that governed the accused referred to disclosures “required by statute or a court order,” Mr. Justice Lalande nonetheless relied heavily on them in finding that the accused’s resonable expectation of privacy was low.

Mr. Justice Lalande was also strongly driven by his characterization of the information revealed by Bell:

There exists an argument quite aside from the impact of the service agreement (and other documents) that the applicant’s name and address as a subscriber falls within a category of basic information which within a commercial contractual setting does not attract a privacy interest because it is not information which tends to reveal any intimate details of personal lifestyle and choices.

…

Generally speaking, in modern day society, a person’s name and address is used and shared frequently.   A privacy issue is largely contextual in that a person may not want others to share information such as whether he or she is a subscriber to the services of an Internet Provider.  It is with regard to the context (taking into account all factors including the nature of the request, the particular information sought and the subscriber or service agreements) that the court has to assess the issue of reasonable expectation of privacy.

R. v. Ward, 2008 ONCJ 355 (CanLII).

Case Report – Manitoba CA denies access to child and family services records

On July 25th, the Manitoba Court of Appeal held that the media ought not to be allowed to publish information in records protected under child and family services legislation that were tendered in a public inquest into the death of a 14-year-old child.

The decision deals with the interaction between the prohibition against disclosure of certain records in section 76(3) of the Manitoba Child and Family Services Act and the open inquest presumption embedded in section 31(1) the Manitoba Fatality Inquiries Act.  

The Court held that the CFSA does not strip a judge holding an inquisition from exercising a discretion to permit publication of the protected records but also held that section 31(1) of the FIA does not mean that protected records that are filed as exhibits in an open inquest are automatically “public” in the sense they are open to all use.  In the circumstances, and in applying the Dagenais/Mentuck test, the Court held the records should remain protected.  It endorsed a statement by the inquest judge which stated, “confidentiality of disclosure [sic] used to assist child and family in abusive and neglectful situation” is a social value of “superordinate importance” to freedom of expression and freedom of the press.

Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2008 MBCA 94.

Information Roundup – 17 August 2008

Here are a few readings you might be interested in.

Well, for the past two weekends I’ve tried to cross Lake Ontario unsuccessfully and, though positive about the experience, am going to hold off until next year.

Last weekend, Max and P.J. flew in and we stayed over in St. Catherines on Friday night. The forecast for the weekend was very mixed. Sunday was definitely out because of t-storms and the Saturday forecast called for afternoon storms. We knew we needed to get out early and have a perfect paddle, so got to the beach at just after 5:00 in Niagara-on-the-Lake. We set out and things were okay, but the winds weren’t right and we knew it would be a long haul, so turned back. Dissapointing, especially for Max and P.J., but we made some good decisions and it felt like an adventure. I also figured I learnt enough that I’d go for it solo and unsupported on the next opportunity.

So yesterday I drove out to Jordan Harbour for a morning start. It was probably a mistake to go from there because it’s five kilometres further to cross (50 km total from Jordan versus 45 from NOL) and you lose the good current coming out of the Niagara River (about 3 km/hr). I figured I would have a better bearing for tailwinds from there but the wind never veered far from the West/North West and I was paddling across and slightly into the wind the whole way, which was okay but meant I couldn’t knee paddle or relax. By 20 km there was no turning back but I was hurting and going a full third slower than my normal pace. Twenty-five to 30 km was extremely tough mentally, and when a couple km later a fishing charter came by asked if I wanted a ride I figured it might be my best option. Thanks to Endel V. for his kindness and the lift back to the Port Credit harbour. If anyone wants a good Lake Ontario fishing charter let me know and I’ll hook you up with Endel!

I’m looking forward to going it again, maybe next May when there’s more likelihood of scoring a calm day without a storm risk. Hopefully I can talk Max and P.J. into coming along. They’re solid guys who provided the whole motivation for this, and its been great to get to know them.

I have no regrets. At times in my training I felt a little nonchalant about the task, but a crossing is a lot different than paddling even long distances near shore because you’re super-committed and super-exposed. It was a really brutal feeling to be hurting so bad at half way and have nobody around and no options but to keep going, but there lies the challenge! Thanks again to Boardsports for loaning us a stand-up paddleboard and to everyone who donated. We’ve raised almost $600 to date for the Canadian Parks and Wilderness Society.

Until next year, Lake 2 versus Surf Paddlers 0.

Dan

Case Report – Workplace surveillance system survives arbitral scrutiny

On July 4th, Arbitrator Craven partially upheld a policy grievance which challenged the expansion of an employer’s in-plant video surveillance system but nonetheless gave a strong endorsement to the employer’s purpose for using video surveillance.

The grievance was about the expansion of a system video cameras in a meat packing plant. The system featured un-monitored, high resolution cameras, some of which were fixed on work areas. It recorded digital images which were retained as long as disk space permitted and apparently not based on a fixed retention period.

Although there was some ambiguity about the purpose of the system, Aribitrator Craven ultimately found that the purpose of the system was, “to investigate plant security, industrial discipline and food safety incidents that come to the Employer’s attention by other means than monitoring the video in real time or viewing or sampling the recordings.” He held this investigatory purpose was legitimate. He also made clear that the employer was not using the cameras to “systematically collect information about employees or to identify occasions for discipline.”

Arbitrator Craven’s distinction between using cameras to support an investigation and using cameras to monitor is strong. He suggests that an investigatory purpose is more likely to be upheld as a legitimate exercise of management rights and less likely to be objectionable because of its intrusiveness. On the intrusiveness issue, he explains:

Indeed, it is a misnomer to describe what the camera system does as ‘observation’ at all. It merely optically, mechanically and electronically collects, transmits and records digital information which does not constitute ‘observation’ until a human observer views the displayed or recorded images. If the cameras continued to operate but no-one viewed the images, we might still describe what was happening as ‘surveillance,’ but surely not as ‘observation.’ It is the potential for observation, not its inevitable realization, that underlies the weak analogy between camera and supervisor. (Compare the characterization of electronic surveillance as ‘inhuman’ (page 30) and indeed ‘fundamentally anti-human (page 29) in Re Puretex Knitting Co. Ltd. and Canadian Textile and Chemical Union (1979) 23 L.A.C. (2d) 14 (Ellis).)

As the Union presents its case, the main argument to the intrusiveness of the video surveillance sys-tem is its capacity for monitoring employees, whether in real time or by systematic subsequent review of the recordings. I accept the Employer’s evidence that it does not monitor employees.

Arbitrator Craven focuses on the use of the cameras rather than their mere presence. Not surprisingly then, he was uncomfortable about the lack of:

  • policy-based restrictions on the use of data (i.e. about the risk of “scope creep”);
  • the absence of a formal data retention rule; and
  • (most interestingly) the absence of rules governing union access to data.

Based on a separate finding that the employer had breached a technological change provision in its collective agreement by not engaging in discussions with the union when it expanded the system, he ordered the employer to meet with the union to engage in discussions, implying that the parties should deal with his concerns by way of mutual agreement.

Cargil Foods, a Division of Cargill Ltd. v. United Food and Commercial Workers International Union, Local 633 (Privacy Grievance), [2008] O.L.A.A. No. 393 (Craven) (QL).

Case Report – Court says case-by-case privilege does not protect identity of expert’s client

On August 1, the Supreme Court of Nova Scotia granted a motion for the production of a information relating to a “private client” of an expert because the expert said that she used the information to support the reasonableness of an assumption. Though the expert attempted to discount the significance of the private client’s information to her opinion, the Court held that it must be produced as an essential fact upon which her opinion was based. It also rejected an argument that a case-by-case/”Wigmore” privilege applied.

South West Shore Development Authority v. Ocean Produce International Ltd., 2008 NSSC 240.

Case Report – SCJ dismisses spoliation claim on its merits

This might be the first award in which the Ontario Superior Court of justice has considered a tort claim for spoliation since the Ontario Court of Appeal held, in Spasic Estate, that a claim based on the tort of spoliation should not be struck out for failing to disclose a reasonable cause of action.

The case is about a claim to the proceeds of an estate. The plaintiff established that the defendant arranged to have the testator’s computer wiped after the plaintiff threatened litigation and after he had received correspondence from the plaintiff’s counsel. The plaintiff also established that there was at least one e-mail destroyed (which was later produced from a third-party) which supported his claim that the defendant asserted undue influence over the testator.

In very brief treatment the Court seems to accept that a claim for tort damages for spoliation can be made out on mere proof of bad faith destruction of evidence. However, in rejecting the claim it implied that prejudice is also a requirement. It said:

In my opinion, this e-mail is no more unfavourable to William Jr. than other e-mails that he did produce that show his involvement with William Sr.’s dispute with Frank. In light of this and in view of the significant documents that William Sr. did produce, I am unable to conclude that William Jr. intentionally destroyed relevant evidence.

The Court did not consider whether the defendant had a positive duty to take reasonable steps to preserve the testator’s computer or the nature and extent of such a duty.

Tarling v. Tarling, 2008 CanLII 38264 (ON S.C.).

All About Information Turns One – Some Reflections

I’m notorious in my family for missing birthdays, but I’ve been thinking about this one for a while. I started blogging here one year ago, and after a bit of thought, have decided to go for another. It’s been entirely rewarding, though hard work too, and I’m still energized enough to carry on.

To commemorate this anniversary I thought I’d reflect on my experience and direct my thoughts to those of you in Canadian firms who are considering blogging. I specify “Canadian” because I sense we’re a lot more conservative than our American counter-parts. I also think, even now, that there’s a lot of space out there for Canadian law blogs.  Pick a niche or create a bizarre new one like I have. It would be great to see more people get on board. I’m sounding like the now-initiated, but perhaps that’s a perspective this birthday has earned.

Here are my thoughts.

Ask first. I really did wake up in the middle of the night, open up a WordPress account and start blogging. I must have been suffering from the same disease that makes so many people post dumb things online and later regret the consequences. When it dawned on me that this might be an issue with my employer, I approached “management” and tried to plead that the blog was my purely private activity. This was too insincere an argument for me to make (a management employment lawyer after all!) and I quickly abandoned my defence and asked for mercy. Thankfully, Hicks is extremely entrepreneurial in its outlook and was happy to let me continue on.

It’s a discipline. That’s the best thing about this for me. After tracking tracking legal developments and publishing internally for years as a research lawyer, I’ve really just taken my process outside the firm and have focused more on areas that are relevant to my own practice. I have a really hard time reading a case or an article closely if I’m not forced to do something with it, so blogging is a good way for me to develop knowledge of the substantive law. Yes, learning by doing is the superior form of professional development, but most of my practice is about developing tactics and strategies and finding practical solutions. Until I get to write facta on subjects I like for at least a few hours a day, this a relatively good way to stay current.

You’re not giving anything away that isn’t worth giving away. If you do start blogging, I bet you’ll have conversations with the more traditional lawyers in your firm who will lightly imply that you’re giving away valuable information to the competition. If you do, you should tell them that information is cheap. In keeping this blog, I aggregate information, organize it into a somewhat usable form and use a bit of my own style though its communication. I like to think that I’m providing an audience of contacts and potential contacts with value though this exercise, but this is hardly the highly-specialized application of our skills that contacts turned clients demand. I’m not a subscriber to the theory that the modern business organization is irrelevant given the growth of outside networks, but I do believe there is a net benefit to engaging in a reasonable degree of extra-firm information-sharing.

It’s about marketing, not sales. Speaking about the returns, they’re hard to measure. I’ve received a number of questions from individuals who want free advice and have drawn a firm lines to avoid slipping into engagements, but I have not really received any contact that has led directly to a retainer. Is this a problem given that I justify the great amount of time I spend on this based significantly on its business benefit? Not from my perspective. I’m not fooling myself or anyone else about the business benefits of blogging, which are more about marketing and profiling than sales. For me blogging is also about relationship-building, and this has been a great vehicle for pushing relevant content to my existing contacts and some new contacts. In the most-rewarding cases I’ve been able to develop a “behind the blog” dialogue on topics of mutual professional interest.

You will need to reckon with the privacy-related ramifications of you blog. I like doing case reports because they’re not associated with a great deal of personal exposure. To be honest, posts like this one, where I come out a little more and speak in a personal voice, make me extremely uncomfortable. At the same time, I feel a natural draw towards personal exposure that’s hard to resist, and understand that the real power of online social networking is derived from the nature of the content and not just the technology.  Is a blawg really a “blawg” if its published in the style of a firm newsletter?  If you try blawging, you’ll ultimately find a level of personal exposure suits your disposition.

You’re going to self-insure. You’ll face risks of both the legal and business kind.  And though it’s fairly easy to publish within the bounds of the law of defamation, there’s about a million subtle ways to offend a member of your firm’s client base (or a member of your firm for that matter). A disclaimer is essential – and I really am not expressing the views of my employer in this blog – but in they eyes of an upset client, a disclaimer may be insufficient. I had a good track record given my former role as a research lawyer role because I was part of a team that doubled as the Hicks’s external communications department. I suspect this gives the firm some comfort as I publish away relatively uncontrolled, but I don’t have any illusions about my ultimate accountability for what I write on this website.

Thanks to everyone who has shown an interest in the last 12 months, and I look forward to this next year!

Dan