Author: Dan Michaluk

Case Report – Drug and alcohol testing condition does not give CHRT grounds to assess merits of discrimination complaint

This 2007 Canadian Human Rights Tribunal decision illustrates the limits to advancing drug testing claims under human rights legislation.

The Tribunal dismissed a discrimination and harassment complaint brought by an employee who was terminated and then reinstated on the condition he abstain from using drugs and alcohol and engage in unannounced testing. The employee did not claim he suffered from an addiction, but rather, claimed the reinstatement contract created the perception that he suffered from alcoholism and was disabled. The Tribunal disagreed, finding that the contract was imposed because of objective behavior and not perceived disability. It stated:

I do not believe that [Entrop and TD-Bank a.k.a. Canadian Civil Liberties Assn.] apply to this case. For example, in the Canadian Civil Liberties Assn case, the Court found that the drug testing policy raised the likelihood of drug-dependent employees losing their employment. Consequently, the discrimination was against those employees who were drug dependent. The complainant in this case is not alcohol or drug dependent. Therefore, the respondent’s policy does not impact on him in the same manner that the drug testing policy impacted on the employees tested in the Canadian Civil Liberties Assn. case.

See this post on the recent Kellogg Brown & Root case, also on the issue of perceived disability.

Witwicky v. Canadian National Railway, 2007 CHRT 25.

Case Report – Leak of information side-tracks STD adjudication claim

On January 31, Arbitrator Devlin upheld a grievance which claimed an improper denial of short-term disability benefits and awarded $5,000 for the manner in which the employer (together with its third-party adjudicator) denied the benefit.

The main problem with the benefits decision was that it relied on a finding that the grievor was not eligible because her condition (an episode of siutational depression) was caused by her husband’s terminal illness.  The grievor gave this information to the employer in an informal telephone conversation at the start of her absence, and the employer forwarded it to the adjudicator in an “employee profile” form.  Ms. Devlin found the underlying reason for the grievor’s absence was not a relevant factor in the claim, which was otherwise justified.  She held that there was evidence the improper denial caused the grievor additional stress and awarded $5,000 in damages.

Hamilton Health Sciences and Ontario Nurses Association (Re), [2008] O.L.A.A. No. 103 (Devlin).

Hicks Post – Canadian e-discovery enters next era

Paul Broad and I published the first 2008 edition of the Hicks Information & Privacy Post. Here is our short lead editorial, “Canadian e-discovery enters next era.”

We’re happy to be back with our second year of the Hicks Information & Privacy Post – our quarterly newsletter about case law developments in privacy, access to information, the protection of confidential business information and the law of production.

This year promises to be a transition year for e-discovery in Canada, with the recent launch of the “Sedona Canada Principles” – the Sedona Canada Working Group’s twelve non-binding statements of principle intended to facilitate electronic discovery in Canada.

For those of you unfamiliar with e-discovery, it refers to the production of records in electronic form and is of critical concern to lawyers, individuals and businesses because the cost of locating and producing electronic records can make litigation unaffordable for even large businesses. There are also risks associated with electronic records that further complicate the discovery process.

Together with developing case law, the Sedona Canada Principles will provide authoritative guidance in the resolution of electronic discovery disputes in Canada. The “scope of production” case law we’ve reported on in this issue is already starting to reflect the proportionality concept – a concept embedded into a number of the Principles that demands the time and expense of any proceeding (and the parties’ production efforts) should be proportional to the dispute.

While the signs that the Sedona Canada Principles are having an influence is positive, there is also ample evidence in our newsletter that many Canadian litigants are not yet prepared for the challenges of e-discovery. The problem of raising the burden of electronic production late (and often after a court has already entered a production order) is a feature of five of the cases below, a pattern that shows that parties to litigation are not getting an early grip on production issues and costs themselves, let alone meeting with the other side to discuss those issues as suggested by the Principles. We hope these are simply adjustment pains, to be borne only as long as it takes for the Principles to become well-known and applied. It should be an interesting year!

The full edition is here. Please take a look.

Managing the threat of on-campus violence and the CAUBO conference

Last Thursday and Friday I attended and spoke at the Canadian Association of University Business Officers workshop on Emergency Preparedness. Perhaps it was the inspirational kickoff by M. Richard Fillion of Dawson College, but it felt like a very special event and it was a pleasure to collaborate with a group of experienced administrators who are obviously committed to tackling a tough challenge.

I spoke on the legal perspective on managing on-campus violence, with a focus on the need for information sharing. Dr. Philip Klassen of the Centre for Addiction and Mental Health’s Law and Mental Health Program and Dr. Phil Wood, Dean of Students McMaster University, gave great presentations on the same subject from their own perspectives. Dr. Wood has also blogged about the event here.

Here is the full text of my speech, entitled “A Legal Perspective On Managing the Threat of On-Campus Violence.” I’ve linked to the various references that came up in the speech and the following Q&A below. I hope these are of use to the attendees and others.

There was a really good comment after the speech from Mike from Queen’s University, who thought the my use of the term “care team” was inappropriate given the role the university is really playing and the sensitivity about taking on an overt caregiver role. I completely agree, and from now on will work the term “assessment team” or “CUBIT” – for Comprehensive Behavioral and Threat Assessment Team – into my language. Thanks!

Case Report – SCC says no power to order costs of production order

Yesterday, the Supreme Court of Canada unanimously held that the Criminal Code‘s production order scheme does not allow a court to order that the police compensate a third party for the costs of compliance with a production order.

In 2004, the federal government passed Bill C-45, An Act to Amend the Criminal Code (capital markets fraud and evidence gathering). The Act created a new investigative tool called a “production order” by which third-parties may be required to produce documents, produce data or even prepare documents (based on existing data) for production. A production order is meant to be an easier-to-administer alterative to search warrants. The Department of Justice backgrounder on the Bill also says production orders are privacy-protective because they do not involve the fishing that’s associated with the execution of a search warrant.

The Court held that costs could not be ordered based on a reading of the statutory text in light of the relevant legislative history and the recognized social duty of citizens to assist in the administration of justice. It noted that the Department of Justice and the telecommunications industry had a dialogue before Bill C-45 was promulgated in which industry members requested an express jurisdiction to order costs.

The Court also held that standard for am exemption based on “unreasonable” burden should not be altered by establishing alternative criteria such as “undue hardship.” It held that reasonableness in the entire circumstances was a justiciable standard, noting that parties who are subject to frequent production orders may raise this fact as a relevant circumstance.

Tele-Mobile Company v. Ontario, 2008 SCC 12.

Case Report – Defendant sanctioned for failure to produce despite partial proportionality plea

On February 13, 2008, the Supreme Court of Prince Edward Island (Trial Division) struck a statement of defence as a sanction for non-production. The judgement is notable for its strong statements in favour of full-production despite burden and despite any assignment of particular value to the evidence sought. However, the defendant’s ability to raise proportionality was limited by a number of factors, including that the burden of production appeared to have been caused by a failure to take reasonable preservation steps (i.e. there was a so-called “downgrading” of data). The defendant also raised the burden of production late in the dispute in response a contempt motion.

Thanks again to Peg Duncan for passing this on. Peg edits the case digests on LexUM’s e-Discovery Canada site. Please check them out!

Jay v. DHL, 2008 PESCTD 13 (CanLII).

Case Report – Limited forensic inspection allowed

On March 17th, Mr. Justice Perell upheld an order which allowed a plaintiff’s expert to recover and search data from a defendant’s personal computer.

In furthering its $1 million departing employee claim, the plaintiff had proven that the individual defendant used his personal computer for business purposes. It had also produced e-mails it had received from the defendant that the defendant had not produced himself because they had been deleted. The plaintiff claimed the missing e-mails were relevant to whether the defendant breached his non-solicitation duty. In these circumstances, Master Dash ordered an inspection to be be made by way of a search of recovered e-mails based on client names.

Mr. Justice Perell considered the existing jurisprudence and Sedona Canada Principle 2 (on proportionality) and upheld Master Dash’s order. He said:

Returning to the case at bar, in my opinion, the short endorsement reveals that in ordering an inspection of the computer, Master Dash either: (a) concluded that there was evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents; or (b) he balanced a variety of factors to conclude that inspection should be ordered including: the relevance and importance of finding evidence that Mr. Cox had sent e-mails to Vector’s customers; the likelihood that Mr. Cox did send e-mail messages to clients given his admitted use of his personal computer for business purposes; the carefully defined parameters of the inspection; and the plaintiff’s willingness to pay for the costs of the inspection. In my opinion, whether Master Dash did (a) or (b), he applied the law correctly to the circumstances of the case at bar.

Thank you to Peg Duncan for passing this on. Please check out LexUM’s e-Discovery Canada site for its great case law digest and other information related to e-discovery in Canada.

Vector Transportation Services Inc. v. Traffic Tech Inc., 2008 CanLII 11050 (ON S.C.).

Information Roundup – March 24, 2008

I have been working hard gearing up for a surf vacation (different than a surf trip for those in the know) and haven’t posted much lately, but here are some of the most captivating things I read and listened to this long weekend that may be of interest.

  • James Hamilton, “A Matter of Principle: Vince Foster and the Attorney-Client Privilege.” A September 2006 lecture by the lawyer who successfully argued the Swidler Berlin v. United States case (on posthumous solicitor-client privilege) to the United States Supreme Court. I was drawn to it for its promise of something on the substance of solicitor-client privilege but found it most fascinating for its discussion of litigation tactics. (Yale Law School)
  • Stephanie Rosenbloom, “The Professor as Open Book.” This is about faculty members who use Facebook and other Web 2.0 applications. As I’ve expressed before, I’m interested in the idea that Web 2.0 can have a positive humanizing effect on professional relationships. (New York Times)
  • Richard Perez-Pena, “With Order to Name Sources, Judge is Casting a Wide Net.” About a United States federal judge’s order against reporter Tony Locy for failing to name her confidential source. The order, which involves significant daily fines and a proviso that she pay them herself, is unprecedented. (New York Times)
  • Bob Cauthorn, “The Changing Rule of Journalism.” This is a few years old, but was a find for me. Mr. Cauthorn is the former head of the San Francisco Chronicle’s new media division and the more recent founder of a new “social news” site called City Tools. He has some very harsh words for reporters and editors in this summer 2005 speech, blaming the newsroom (not the Internet) for a mainstream media malaise. He says, “What were talking bout is newspapers being so fundamentally reduced in their ability to do business that they don’t have the cultural heft that they once had… that they don’t matter as much as they should.” Apparently this speech caused a stir at the time. No kidding, but very engaging. (UC Berkeley Graduate School of Journalism)

My recent interest in the media and freedom of the press is about building an information and privacy practice with a more hefty identity and knowledge base (to steal Cauthorne’s good word). It has become clear to me that gaining a deeper understanding of the role of the press under the Charter is key to fully understanding the “macro” information flows that are structured by our public law – information flowing to and from government, to and from law enforcement and into and out of the courts. I’ve done some energizing and englightening self-study as of late and hope you have enjoyed sharing in it!

See ya!

Case Report – OCA sets aside contempt order issued against journalist

Yesterday, the Ontario Court of Appeal held that a trial judge erred in finding a journalist in contempt and ordering him to pay over $36,000 in costs for failing to reveal the identity of a confidential source before the source was given a chance to come forward.

The journalist, Kenneth Peters of the Hamilton Spectator, was compelled to testify in a suit which alleged that two municipalities had improperly leaked confidential information to the media. The identity of his source was relevant, if not essential, to the claim.

Mr. Peters was first given an opportunity to testify only as to whether one of the defendants employed his source and, having refused, later given an opportunity to disclose the identity of an individual who accompanied his source but who had not been promised confidentiality. When Mr. Peters refused to answer this question, the trial judge ordered a hearing in which he was to “show cause” why the court should not find him in contempt. A day before the show cause hearing the confidential source came forward. The judge proceeded with contempt proceedings nonetheless, though he changed the charge to one of civil rather than criminal contempt.

In allowing the appeal, the Court of Appeal did not comment on the validity of the privilege claim other than stating that the trial judge ought to have assessed it against the Wigmore criteria, which in turn reflect the relevant Charter values. Instead, the thrust of the appeal judgement is about the restraint that judges should exercise in compelling testimony which reveals a source’s confidences when a claim of privilege fails. On this point, the Court’s essential finding is well-summarized from a quote it drew from a British Columbia Supeme Court judgement: “where members of the media are called to give evidence, it is incumbent upon courts to balance the necessity of having evidence before the court against the special role of the media as recognized by section 2(b) of the Charter.”

In the circumstances, the Court held that the trial judge did not show sufficient restraint:

At a minimum, the appellant should have been afforded the opportunity to consider his position in light of the fact that he had been ordered to disclose the confidential information. The appellant also should have been given the opportunity to consult with the confidential source to determine whether, in light of the court’s order, the source still insisted that the confidentiality be maintained.

Also based on the principle of restraint, the Court held that the trial judge erred in proceeding with a contempt hearing after the confidential source had come forward and erred in imposing a substantial costs award.

St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182.

Case Report – Adverse inference drawn based on negligent spoliation

On February 27th, the New Brunswick Court of Queen’s bench dismissed a counterclaim because the plaintiff (by counterclaim) had allowed documents that the defendant required for its defence to be destroyed.

After terminating its franchise agreement with the defendant, the plaintiff transferred a job order file on an over-bid construction project to the new franchisee, who destroyed the file. The defendant (by counterclaim) did not allege bad faith, but alleged that the plaintiff ought to have instructed the new franchisee to safeguard the files, which were essential to its defence. The Court rejected the plaintiff’s claim that the defendant did not call an available witness in favour of raising its spoliation defence. It also held that the plaintiff had a duty to preserve the job order files that was bolstered by its own termination letter, which said it would make the records available to the defendant in the event of litigation.

Elliott v. Trane Canada Inc., 2008 NBQB 79.