There is such a thing as “too much information”….

In the United States, the Federal Rules of Appellate Procedure limit appellate briefs to 14,000 words. The Seventh Circuit Court of Appeals recently faced a case where one of the parties had submitted an 18,000 word brief. The court issued an order to show cause why the brief should not be “stricken and/or sanctions imposed for failing to comply with Rule 32 and making a false representation to the court.” The court heard argument that the error was inadvertent. The court rejected that argument. In a decision written by Justice Posner, this stern warning was issued:

The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning. But in addition it is plain from the briefs that the appeal has no merit. To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable. The motion to file an oversized brief is denied and the judgment of the district court summarily AFFIRMED.

A link to the decision, is here.

Does qualified privilege apply in a “public space”?

In Rodrigues v. Toop, 2011 ONSC 794, the Ontario Superior Court of Justice court recently considered whether qualified privilege applied to a communication in a public space.

The Plaintiffs were members of a union local executive. The Defendant was a union steward who distributed a flyer in a public car park to individuals who identified themselves as union members, containing allegedly defamatory statements about the members of the executive. The issue was whether qualified privilege attached to the communications. The Plaintiffs argued that when the flyers were distributed in a public place and not at a union meeting, qualified privilege no longer applied.

The court held that the Defendant’s method of communication “was less than ideal” but that qualified privilege attached because, while the distribution of the flyer took place in a public space, “it was not a public message”. The key factual finding for the court was that there was no evidence that the Defendant had distributed the flyers to any member of the general public (ie. to a non union local member) and that therefore “the reputation of the Plaintiffs was not tainted in the general public”.

This decision represents a potentially important application of the principle that qualified privilege will only attach where the person who makes the statement has an interest or a duty to make it to the person to whom it is made, and that the other person has a corresponding interest or duty to receive it. It remains to be seen whether the “public space” vs. “public message” analysis will take hold.

A link to the decision is here.

Court of Appeal considers privacy expectation of regulated businesses

In R v. Clothier, 2011 ONCA 27, the Court of Appeal for Ontario held that the “entrapment” defence did not apply to the regulatory offence of a store clerk selling cigarettes to a minor in violation of the Smoke Free Ontario Act. The minor was a “test shopper” for the local tobacco enforcement agency. The clerk argued that this was entrapment. The Court held that entrapment did not apply and that government authorities can use random test shopping to monitor compliance with the Act. Of interest from a privacy point of view is the Court’s statement that regulated businesses should expect monitoring as a consequence of doing business:

First, these stores operate in a regulated commercial environment, and operating in this regulatory environment comes with consequences. As Cory J. said in Wholesale Travel, at p. 229: “… those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility.”

Stores selling tobacco and their employees have this responsibility to the public. One important consequence of this responsibility is their deemed acceptance of an undertaking to exercise reasonable care to ensure that the harm identified in the regulatory statute – here selling tobacco to minors – does not occur. This entails a further
consequence.

Those who sell tobacco products must accept a greatly diminished expectation of privacy, as some form of monitoring will be necessary to ensure that they meet their due diligence responsibilities. The monitoring is done, not to punish past conduct, as would be the case for an offence under the criminal law, but to deter harmful conduct in the future – in other words, to prevent harm to the public from the illegal sale of tobacco to
minors.

… We recognize entrapment as a defence in criminal law because of our concern that random virtue testing will result in too great an invasion of personal privacy. That rationale simply does not apply in this regulatory context.

This is an interesting analysis in that it refers both to a diminished “expectation” of privacy and a diminished concern with the “invasion” of privacy in a particular context.

Banks prohibited by PIPEDA from disclosing mortgage discharge statement

In an interesting decision released today, the Ontario Court of Appeal held in Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3, that PIPEDA prohibits banks from disclosing mortgage discharge statements to a third party.

Citi had a credit card debt against Pleasance and sought to enforce judgment through a sheriff’s sale of Pleasance’s home. But the sheriff would not act without mortgage discharge statements, which the banks refused to provide on the basis that disclosure would be in breach of privacy rights under PIPEDA. The Court called this a “knotty and interesting question”, but upheld the lower court decision prohibiting disclosure. The Court held that mortgage discharge statements contain “personal information” which is not publicly available, that Citi’s interests (as a third party) are not factored in the balancing of interests under PIPEDA, and that Citi could have pursued alternate remedies through a judgment debtor exam or order in aid of execution.

A link to the decision is here.