Case Report – Arbitrator Brent’s teaching evaluation data award upheld

On May 22nd, the Divisional Court dismissed a judicial review of a February 2007 decision by Arbitrator Gail Brent in which she held that the University of Windsor did not violate its faculty collective agreement or the Ontario Freedom of Information and Protection of Privacy Act by publishing teaching evaluation scores on a secure network for access by students and other members of the university community.

It held that Ms. Brent was reasonable in construing the term “personal information” in the relevant collective agreement provision narrowly such that it excluded teaching evaluation scores. It also held, without deciding on the applicable standard of review, that Ms. Brent was correct in deciding that student evaluation records were excluded from FIPPA based on the employment-related records exclusion.

University of Windsor v. University of Windsor Faculty Association, 2008 CanLII 23711 (ON S.C.J.).

Case Report – No solicitor-client relationship formed in casual law office conversations

On May 20th, the Nova Scotia Court of Appeal affirmed a 2007 decision on a made-for-the-textbooks fact scenario in which a judge held that two casual conversations between a lawyer, another lawyer and the other lawyer’s wife did not give rise to a solicitor-client relationship.

The facts involve a partner and his associate whose wife was contemplating leaving her employment as a real estate broker.

The associate first had a conversation with the partner that was held to be “brief,” and likely lasted for less than 20 minutes. The associate admitted that he sought “off the cuff” advice on the partner’s “two cents worth” and at the same time sought an opinion about the qualities of his wife’s potential new business partner. The conversation did touch upon legal matters, however, including the wife’s obligation to give notice.

The second conversation happened when the wife attended the office and she and her husband intercepted the partner when he was on his way out to lunch. The wife testified that she attended the office to seek legal advice from the partner, but also admitted that she had no intention of retaining him as counsel on her impending departure. The subject matter of the second conversation was the same as the first, and the partner testified that he was just lending support to his associate.

The left employment and her former employer sued. In the course of pursuing its claim, the employer contacted the partner, who spoke openly about his meeting with the wife and his now estranged associate. The partner said, “If they had listened to me there would likely have not been a lawsuit.” The wife (with others) sued for breach of solicitor-client privilege.

Mr. Justice Boudreau of the Nova Scotia Supreme Court dismissed the claim in April 2007. He said:

I am conscious of the fact that a retainer does not have to be perfected for solicitor-client privilege to arise, but it is necessary that the prospective client be at least that, and that the lawyer’s professional opinion he sought in his capacity as such (see Wigmore at p. 554). I find that even this minimal requirement has not been established in this case. Ms. Cushing has indicated that she was not a potential client of Mr. Hood (See Descôteaux). The plaintiffs have failed to establish that Ms. Cushing attended at the office of Mr. Cushing (regarding the second conversation) in order to obtain a consultation from Mr. Hood in his professional capacity. There was no meeting arranged with Mr. Hood and the casual conversation occurred purely by chance.

Ms. Cushing did not say to Mr. Hood that she was there to obtain his professional legal advice. Also, Mr. Hood did not indicate what may be legally required but he simply gave his common sense thoughts on what may be a proper or ethical way to conduct business in a small town like Yarmouth. As I said, in the final analysis, the plaintiffs have failed to prove that a solicitor-client relationship existed at the relevant times.

The Nova Scotia Court of Appeal upheld Boudreau J.’s decision in a brief award.

Cushing v. Hood, 2007 NSSC 97, affirmed 2008 NSCA 47.

Emily Gould’s “Exposed”

If you’re interested in the social media and privacy issue you might like reading Emily Gould’s “Exposed” article, which ran in the New York Times Magazine last weekend. You might also like perusing some of the 1200 comments that the article has spawned.

While many of the commenters are highly-critical of Ms. Gould’s self-centred article about her career as a self-centred blogger, only a few I read acknowledged the irony of entering the public forum themselves in publishing a comment. This may very well demonstrate irresistibility of online expression and the power and relevance of the social media phenomenon. Yes it will shape the law of information and privacy, but it has even greater socio-cultural significance.

I am an obvious fan of Web 2.0 and its potential, but in reading this article it struck me that the extent to which we are relying on online experiences to supplant real world experiences is troubling. Take Ms. Gould’s use of instant messenger technology:

But because we were so busy, we continued to I.M. most of the time, even when we were sitting right next to each other. Soon it stopped seeming weird to me when one of us would type a joke and the other one would type “Hahahahaha” in lieu of actually laughing.

And then, “Depending on how you looked at it, I either had no life and I barely talked to anyone, or I spoke to thousands of people constantly.”

The very best comment I read was from “Flynn” from Los Angeles, who reminds us about what is real in our increasingly virtual world. He tells Ms. Gould, “Turn off the computer, drive to Coney Island and jump in the ocean. Cleanse yourself and start all over again. You won’t be missing a thing.” Must be a surfer.

Case Report – BC OIPC says 41 days too long for breach notification

On May 7th, the British Columbia OPIC issued an investigation report in which it held that the Ministry of Health breached the security measures provision of the British Columbia Freedom of Information and Protection of Privacy Act in circumstances involving the loss of an unencrypted magnetic tapes that contained that contained the personal information of British Columbia residents who received health care in New Brunswick.

The tapes were sent pursuant to the provinces’ reciprocal billing agreement and contained the following personal information: gender, personal health number, birth date, fee code for medical service received and the practitioner number of the health care provider. They were mailed on October 3, 2007 and identified as missing October 25th. Notification to individuals and an offer to pay for credit protection services costing up to $200 was sent on December 11th, about a week before the courier company finished its investigation into why the package was lost.

The OPIC held that the Ministry breached the Act in light of the following actions:

sending data on unencrypted magnetic tapes (even though the data on the tapes would not be highly accessible given the near-obsolesce of the medium)
not requiring the sender to give notification of when the package would be received and not requiring the sender to use a courier with a tracking service (which contributed to the delay in discovering the package had been lost)
not instructing the sender to refrain from sending another unencrypted tape while the incident was still under investigation
taking 41 days to notify individuals of the breach

The OIPC also held that the Ministry did not follow best practice by only notifying the OIPC shortly before it gave notice to the affected individuals. It expressed a desire to help public bodies develop effective strategies to mitigate the risk of harm flowing from data breaches.

Investigation Report F08-02, 2008 CanLII 21699 (BC I.P.C.).

Case Report – IPC says personal information in OSR shall not be released

On April 11th the IPC/Ontario denied a parent’s appeal for access to information about an incident that led to the suspension of two students, and in doing so made a significant statement on a student’s privacy interest in information contained in the Ontario Student Record.

The records at issue were about two students other than the parent’s child, so the Board claimed they were exempt based on the exemption in section 14 – i.e., it claimed that disclosure would constitute an “unjustified invasion of privacy.” It also argued that disclosure should be presumed to constitute an unjustified invasion of privacy based on section 14(3)(d) of MFIPPA (the “educational history” presumption) because the records had been included in the OSR pursuant to the Ministry’s Violence-Free School Policy. The IPC acknowledged that the OSR is “the core of a student’s educational history” and held that the presumption applied.

It also rejected the requester’s claim that the “public interest override” applied. Although it recognized that a parent’s interest in ensuring a safe environment for his or her own children and other children was a “compelling public interest,” it did not find that this interest outweighed the special privacy interest of youth at risk:

I note that Canadian legislation aims to protect young people from negative publicity about activities that may not reflect well on them. This policy initiative clearly underlies significant provisions about non-publication of information found in the Youth Criminal Justice Act.

Order MO-2291 (11 April 2008, I.P.C./Ont.).

Information Roundup – May 24, 2008

Finally a beautiful weekend in Toronto! Here are some things I’ve read recently that you might find interesting.

Alan Finder, “At One University, Tobacco Money is a Secret.” This is about a restrictive research funding agreement at Virginia Commonwealth University. It includes abnormally strict confidentiality provisions that have drawn some criticism. (New York Times)
Peter Timmins, “NSW ADT sticks to ‘disclosure to the world’ but policy needs rethinking.” Mr. Timmins lays out some Australian law on the “disclosure to the world” principle, a privacy-protective principle raised in access to information law that deems the good intentions of a requester to be generally irrelevant. (Open and Shut)
Information and Privacy Commissioner/Ontario, “2007 Annual Report.” Most interesting for me is the comment on privacy versus security in light of Virginia Tech and other recent events. Ms. Cavoukian says, “And our attention is drawn away from real issues at hand: bureaucratic inertia, misguided policies, inefficient practices, and poor judgement.” I don’t think this comment was meant to be a critique of our own educational institutions, who all can be seen to be working hard on this issue, but is nonetheless quite a pointed call to action!
Linda Greenhouse, “Supreme Court Upholds Child Pornography Law.” A news report on the United States Supreme Court freedom of expression case (R. v. Williams) from last Monday, which the Times has also criticized. (New York Times)

I made contact with Peter Timmins through this blog, and have since been following his Open and Shut freedom of information and privacy blog. I like the idea that blogging can help build a contact with someone almost exactly half-way around the world with similar interests. I also have a soft spot for Australia because after I articled Seanna and I spent a year there travelling around and camping. We had this idea that we could live on a $5 a day food budget, and still remember standing outside of a MacDonald’s debating about whether we should treat ourselves to an ice cream cone. We also drank a few $4 boxes of wine on that trip! An experience I’ll never forget, and an extremely beautiful country. Check out Open and Shut sometime.

See ya!

OBA Eye on Privacy Published

The OBA has published its privacy law section newsletter – Eye on Privacy. I wrote a short article called “Recent Cases Illustrate the Polarity of Privacy Rules for Litigants.” It questions whether the policy of absolute openness regarding filed discovery transcripts conflicts with the policy underlying the deemed or implied undertaking rule by juxtaposing the recent Juman v. Doucette and Moore v. Bertuzzi cases. Here’s a link, but it might not be live for long because the OBA password protects archived editions of its newsletters. Check it out now, and please consider becoming a member!

Case Report – OCA outlines procedure on an application to quash a sealing order

In a decision issued yesterday, the Ontario Court of Appeal declined to quash sealing orders issued in respect of search warrant materials, in part because the court record was not suitable for appellate review. The outcome is largely fact-driven, but the Court did explain in general terms how procedure on application to quash a sealing order should be managed to ensure a full and fair hearing and a court record that supports appellate review. It said that, in general:

the Crown should prepare a redacted version of the materials
the Crown should prepare a page-by-page index of the materials redacted in tabular form, with a general description of each portion that has been redacted and the grounds for its redaction
the Crown should provide the redacted materials and the index to applicants and deal with any conditions or restrictions on this disclosure by way of preliminary motion if necessary
the Crown should provide a highlighted (rather than redacted) version of the materials to the court to facilitate review
the judge should consider each claim separately and use the index to provide an organized set of reasons
if it is clear the judge’s reasons will reveal information to be sealed, he or she should consider preparing and releasing a redacted version of the reasons and consider who will receive the unredacted version on what terms

The Court said this process, and in particular the requirement on the Crown to produce a index with its grounds, “reflects the presumption that once a search warrant has been executed, the warrant and the information upon which it is based must be available to the public unless it is demonstrated that the ends of justice would be subverted by the disclosure of the information.”

R. v. Canadian Broadcasting Corporation, 2008 ONCA 397.

Case Report – Alberta OIPC issues helpful medical information management decision

On April 10th, the Alberta Office of the Information and Privacy Commissioner issued an investigation report that analyzed various information flows that employers typically use in managing employee medical issues.

The first information flow involved information transferred from a third-party Employee Assistance Program provider (EAP) to the employer’s occupational health services (OHS) department. The OIPC held the EAP improperly disclosed information to the OHS about whether the employee was complying with his treatment program. The disclosure itself was not objectionable because the employee was on leave and in receipt of short term disability benefits on the condition he obtain appropriate medical care. However, the employer and the EAP drew a distinction between voluntary entrance into the EAP and a formal referral into the EAP; voluntary care was treated as absolutely confidential while care pursuant to a referral involved a limited disclosure of information back to the OHS. The EAP argued that it had obtained oral consent for this disclosure, but the OIPC held the employee was rightly confused about the EAP’s role, partly because he had received EAP services voluntarily in the past. Hence, The OIPC held that the EAP violated its obligation to give reasonable notice of its purposes as required by the Alberta PIPA.

The second information flow involved information transferred from the employer’s OHS to a member of the employer’s human resources department (and also to the local union president). This information indicated that the employee:

was involved in a “voluntary drug and alcohol program,”
was being required by [the EAP] and apparently OHS to sign a Recovery Maintenance and Monitoring Contract,
would be subject to requirements of “abstinence” and “random testing for alcohol and drugs” for a 2 year period,
had been seeking counselling/treatment from [the EAP].

The OIPC held that it was okay for the employer’s OHS to know about the nature of the employee’s condition so it could ensure it was being properly managed, but all human resources needed to know was weather the employee had successfully completed treatment and would comply with return to work conditions.

The third information flow involved a communication sent by human resources that indicated the employee was not complying with the employer’s policies, that the OHS had given the employee notice of his requirements and the reason why the employee was not in compliance. The information was contained in a letter copied to:

the local union president
the employee’s immediate supervisor
the employer’s director of disability management
the employer’s director of operations
the nurse who ran the employer’s OHS
the employer’s site production manager
the manager of the employee’s department

The OIPC held that the employee’s direct supervisor and the individuals responsible for administering the employer’s short term disability program had a need to know information about the ongoing employment-related dispute, but that the other members of management copied on the letter only needed to know that the employee was not yet eligible to return to work and should not be on-site.

This report provides some useful (and in my view fair) guidance to employers on the proper scope of some of the information flows that are necessary to the management of employee medical issues. I’m most interested in the OIPC’s treatment of the first information flow because it identifies the importance of clarifying the purposes for and conditions on employer-sponsored medical services. This case is about the subtle difference between visiting an employer-sponsored care provider under an absolute condition of confidentiality and a limited disclosure condition. It is reminiscent of the similar problem that arises when an OHS department provides care (for employees’ benefit) and assesses employees (for an employer’s benefit). Whenever an employer-sponsored care provider wears more than one hat, it’s important to let employees know which hat it is wearing in each and every engagement.

Investigation Report P2008-IR-003 (10 April 2008, Alberta OIPC).

Case Report – ABCA addresses an expert witnesses’s duty of confidentiality

On May 9th, the Alberta Court of Appeal issued a split judgement that touches on the scope of confidentiality that is waived by the act of filing an expert report in court. The majority held the filing of a report only waives confidentiality as between the litigant and its expert in the content of the report itself. The minority held that a person filing an expert report waives confidentiality in all information in the custody of the expert that is relevant and material to the dispute in which the report is filed.

This was a case about an expert report written by an accounting firm for a woman engaged in a child support and custody dispute (the “complainant”). The firm traced her husband’s assets and drafted a preliminary report, which the complainant filed in court in support of her position in two proceedings. This action, which the firm claimed she did not have authorization to take, led to a series of events that culminated in complaint by the woman to the Institute of Chartered Accountants of Alberta.

After viewing the report, the husband (also an accountant and familiar to the firm) then called the author of the report to complain about its quality. The author wrote an e-mail to the managing partner which stated, “If Danny feels we have slighted his reputation, we have not.” Soon after, the firm decided to withdraw the report. It took the position that withdrawal was justified because the report was filed without its authorization and the complainant’s account was unpaid. It told the husband around the same time it sent a letter to the wife, who heard about the withdrawal through the husband’s counsel before she received the letter. Later, in response to a summons issued by the husband, an accountant from the firm swore an affidavit to confirm the withdrawal.

In an award written by Picard J.A., the majority of the Court of Appeal affirmed the Institute’s findings of professional misconduct on a “reasonableness” standard of review. She first affirmed a finding that the author’s e-mail, despite being sent internally, was “false and misleading” and constituted a breach of the professional rule against making such statements. Picard J.A. read the rule broadly; since it didn’t exclude internal communications, she held that it applied to them.

Picard J.A. also affirmed breach of confidence findings that were based on the firm’s direct communications with the husband and its affidavit. She rejected the firm’s reliance on the rule governing litigation privilege that deems privilege to be waived for all information relevant and material to an expert report filed in court. She held this was a rule about litigation privilege and was not incorporated into the Institute’s confidentiality standard, so upheld the Institute’s finding that the firm acted improperly by disclosing information about the terms and reasons for the report’s withdrawal, the state of the complainant’s account and its relationship with the complainant.

Slatter J.A. wrote a very strong dissent.

He first took issue with the internal e-mail finding. He held that the Institute’s interpretation of its “false and misleading” communications standard would create a form of absolute liability for bad opinions and would also prevent firms from discussing the resolution of complaints. His reasoning speaks to a form of privilege:

The decision of the Appeal Tribunal would have a chilling effect on the ability of any firm of accountants to conduct open and frank inquiries about the conduct of its members, and the quality of the work that had been completed for any client. Any partner (like Mr. Nelson) who attempted to defend his work could be found guilty of professional misconduct if it turned out later that he was mistaken. Any partners who shared and repeated the opinion that the work had been properly done would likewise potentially be subject to discipline…

The Complaints Inquiry Committee, the Discipline Tribunal and the Appeal Tribunal all play a key role in maintaining the standards of the accounting profession. However, the first line of defence of the standards of the profession must be with the professionals themselves and with their firms. Accounting firms must be free to make inquiries about the quality of their work and the conduct of their partners, without fear that if they make statements, or express opinions, subsequently found to be inaccurate they would be subject to discipline. Penalizing a firm for such statements is counter-productive.

Slatter J.A. also objected to the confidentiality findings. He held that the Institute’s rules should not be read in conflict with an expert’s duty to the court. He held that the fact that the report had been withdrawn, the terms of the retainer, the fact that there was an alleged breach of the retainer, that the firm had ceased to act for the complainant, that it was prepared by an articling student, its belief in the suitability of the report as evidence and even the status of the complainant’s account were all material and relevant facts in the legal dispute, and therefore were the subject of an implicit waiver of confidentiality. On the timing of the disclosure to the husband, he said:

It is true that Mr. Preston disclosed this information to Mr. Dalla-Longa on the telephone prior to advising the complainant. Mr. Dalla-Longa undoubtedly caught Mr. Preston by surprise when he telephoned to inquire about the report four years after it was prepared. But when Mr. Dalla-Longa advised Mr. Preston that the report had been filed in court, the latter was entitled to proceed on the basis that confidentiality had been waived. Experts should be encouraged to make timely disclosure of the information that underlies their reports, to avoid surprise and adjournments, and to promote settlement discussions. The rules should not be construed to require a court order before an expert discloses his or her working papers, or to require or encourage experts to avoid producing information until they are actually in court, on the stand, and under cross-examination. Providing the limited information involved to Mr. Dalla-Longa was at most a breach of business etiquette that does not warrant discipline.

Also of interest, the majority and minority concluded that a different standard of review applied based on the standard of review analysis recently endorsed by the Supreme Court of Canada in its landmark Dunsmuir decision. The majority supported a reasonableness standard and the minority one of correctness.

Deloitte & Touche LLP v. Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee), 2008 ABCA 162.