BCLRB affirms decision denying grievor anonymity

There has been some significant British Columbia litigation about whether the British Columbia Personal Information Protection Act gives a grievor a right to have his identity obscured in an arbitration award.

On May 29th the British Columbia Labour Relations Board affirmed a decision by arbitrator Stan Lanyon on the issue.

Thr Board held that PIPA does bind a labor arbitrator, but that labor arbitrators nonetheless retain a discretion in deciding whether to grant a right of anonymity based on the “authorized by law” exception to the consent rule.

The Board also affirmed Arbitrator Lanyon’s finding that the arbitration process is “not a purely private dispute resolution mechanism,” that there is therefore a public interest in open proceedings and that there is a particular public interest in publishing the names of individuals who commit employment offences.

Look for an appeal on this very principled and important issue.

Sunrise Poultry Processors Ltd v United Food and Commercial Workers International Union, Local 1518, 2014 CanLII 27506 (BC LRB).

Alberta Court Lends Constitutional Protection to the “Cyber-Picket Line”

The Alberta Court of Queen’s Bench issued a remarkable privacy decision on June 30th that didn’t get much attention until David Fraser posted about it last week. (Thank you David.) Madam Justice Goss of the Court held that Alberta PIPA violates section 2(b) of the Charter because it doesn’t give organizations wide enough latitude to record and disseminate images of people at public social or political events.

Picketers often employ video cameras and still cameras, a practice thought by some to be a form of intimidation. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and evidence that the union had used images to attack individuals in a manner described in the Alberta OPIC order under review as follows:

As well, exhibits were entered showing that images of this Complainant’s face were included (which he stated was without his consent) in issues of the Union’s newsletter or strike leaflets, in one case superimposed over the head of a person driving a miniature train, associated with text which began “There goes [the Complainant] with his train full of scabs”, and in another case, superimposed onto a turkey. In a third image, in which Complainant C is seen leaning over a railing gazing down at the floor below, the associated text begins: “What is [the Complainant] thinking? Is it jumping? …” and continues with other comments related to the strike and the Complainant’s possible thoughts.

Madam Justice Goss suggests that this activity – and “ridicule” and “mockery” in general – does not warrant constitutional protection. She nonetheless holds that PIPA is too restrictive of expression in a free and democratic society because it restricts unions from engaging in “union journalism” relating to labour disputes and picket lines. While significant, Madam Justice Goss’s finding does preserve a rather fundamental limit on the “cyber picket line” (a term used by the union’s expert): the dissemination of images to ridicule, mock and intimidate can and should be restrained by applicable privacy legislation.

Of course, the decision has implications that go beyond the picket line. At its broadest, the matter raises a rather gargantuan issue about how much government can restrict the expression of information about things people do in public as a means of promoting and protecting personal privacy.

United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415 (CanLII).

Ontario Court of Appeal Relieves Media of Elevated Costs Order in Privacy Dispute

The Ontario Court of Appeal reduced a full indemnity costs award made against the Toronto Star on Tuesday. The motion judge made the extraordinary costs award against the Star because it was a “media giant” that had unsuccessfully taken on an individual who was trying to protect his personal privacy. The Court of Appeal held that the Star’s action in seeking to publish potentially embarrassing personal information about the individual was not conduct worthy of sanction even though it affirmed a finding that the the Star was motivated, in part, by its private interests. Though notable to readers of this blog, given how it was handled this case is arguably more about the exceptional character of elevated costs orders than about media rights and privacy.

Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555 (CanLII).

PSLRB Says Public Servant Deserved Suspension for Publishing Advertorial

The Public Service Labour Relations Board issued an award on April 4th that illustrates the balancing of interests that defines the scope of a public servant’s duty of loyalty.

Adjudicator Love upheld a five-day suspension for conduct he characterized as making a “deliberate and unwarranted attack” on public officials and government. The grievor, a clerk in the Department of Public Works and Government Services, paid for a full-page advertorial in the National Post to take issue with the manner in which the government handled his application for an internal job competition. In particular, the grievor alleged that the Minister abused his power and that the Ethics Commissioner, the Treasury Board President and the Auditor General dropped the ball with respect to his case.

Adjudicator Love balanced the grievor’s right of expression against the government’s recognized interest in maintaining a public service that demonstrates impartiality, neutrality, fairness and integrity. He considered the following factors in upholding the government’s penalty:

the grievor published the advertorial four days before a federal election
the subject matter of the advertorial was of a personal rather than public interest
the advertorial directly attacked individuals
the advertorial lead readers to believe the greivor held a position of some responsibility
the advertorial was published in a national newspaper, with high visibility
the issues raised by the advertorial were sensitive, relating to abuse of power and lack of integrity, and were published around the same time the department was under scrutiny during the Gomery Inquiry
the advertorial inaccurately suggested that the grievor had exhausted all internal avenues

Adjucator Love ends by stressing the seriousness of defaming public officials without justification: “Cases such as Chopra (see paragraph 44 of that decision) make it clear that, even if an employee exhausts internal recourses before going public, certain communications may still breach the duty of loyalty, if they attribute inappropriate motives to a minister and his or her department.”

MacLean v. Treasury Board (Department of Public Works and Government Services), 2011 PSLRB 40.

Order to Identify Anonymous Message Board Users Granted (Ontario)

On May 30th, the Ontario Superior Court of Justice granted an order to defamation plaintiff Richard Warman to help him identify two individuals he alleges defamed him by posting comments on the “Freedominion” message board.

Mr. Warman’s process of identifying eight “John Doe” defendants has taken some time. He first obtained an order in March 2009, but it was quashed in May 2010 by the Divisional Court – see “Court says suing message board operator not an easy means to identify anonymous internet users.” Following the Divisional Court order, Mr. Warman discovered six of the John Does’ identities without the aide of a court order. He then came back to the Court to identify the unidentified two.

Justice Blishen issued an order requiring the operators of the Freedominion site to provide identifying information over their objection and based on the four-part test articulated last May by the Divisional Court. She rejected an argument that the use of pseudonyms gave the unidentified John Does a reasonable expecation of privacy. She also rejected an argument that the common use of “hyperbole” and “exaggeration” on the Freedominion site rendered the impugned publications incapable of having a defamatory meaning.

Hat tip to Peg Duncan!

Warman v. Wilkins-Fournier, 2011 ONSC 3023 (CanLII).

SCC Considers Defamation in a Group Context

On February 17, the Supreme Court of Canada released a decision that considered defamation in the context where comments had been made about a group. The defendant, André Arthur, was a Montreal radio host known for making provocative remarks. In a broadcast, he made quite negative, disparaging remarks aimed at Montreal taxi drivers, and especially those whose mother tongue was Arabic or Creole. The plaintiff was a taxi driver whose mother tongue was Arabic. He commenced a class action in defamation.

While the Supreme Court was considering defamation in the context of a claim made within Quebec civil law, the Court’s judgement contains numerous comments of general importance. For example, the Court discussed the importance of striking a balance between freedom of expression and protection of reputation, and noted that it is a constantly shifting balance:

[19] Of course, there is no precise measuring instrument that can determine the point at which a balance is struck between the protection of reputation and freedom of expression. In reconciling these two rights, the principles on which a free and democratic society is based must be respected. The intersection point will change as society changes. What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today. Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest. In the common law, for example, this Court has reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) and recognized the existence of a defence of responsible communication on matters of public interest (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640).

In terms of the discussion of defamation, the Court noted that three elements had to be proved: fault (determined by looking at the defendant’s conduct through a reasonable person standard); personal injury (i.e. damage to reputation as determined from the ordinary person standard); and causality between the fault and the injury.

In the decision before the Court, the focus was on personal injury, as both fault and causality had not been disputed. The question of personal injury was complicated both because of the procedural vehicle used to bring the action (a class action) and by the fact that the comments had been directed at a group (approximately 1,100 drivers whose mother tongues were either Arabic or Creole). With respect to the class action, the Court reaffirmed that it was merely a procedural mechanism that did not alter the legal requirements of the underlying cause of action.

Of perhaps greatest interest is the Court’s attempt to set out factors that come into play when determining whether comments directed at a group cause personal injury sufficient to ground a claim in defamation. Those factors are:

Size of the Group – As a general principle, “the larger the group, the more difficult it is to prove that injury has been sustained by the member or members bringing the action.”
Nature of the Group – “In general, the more strictly organized and homogeneous the group, the easier it will be to establish that the injury is personal to each member of the group.”
Plaintiff’s Relationship with the Group – The focus here is on the plaintiff’s status, duties, responsibilities and activities within the group. “A person who is a well-known member of a group is more likely to suffer damage to his or her reputation as a result of comments made about the group.”
Real Target of the Defamation – “The judge must also consider the words, gestures or images used to convey the message…The more general, evasive and vague the allegations, the more difficult it will be to go behind the screen of the group.”
Seriousness or Extravagance of the Allegations
Plausibility of the Comments and Tendency to be Accepted – “Generally speaking, a plausible or convincing allegation will capture the ordinary person’s attention more and thus make it easier for that person to connect the allegation with each or some of the group’s members personally.”
Extrinsic Factors – In this last category, one considers factors related to the maker of the comments, the medium used and the general context.

Weighing these factors, the majority of the Court (Abella J. dissenting) found that the plaintiff had not established injury of a personal nature. Thus, the claim in defamation could not proceed.

Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9

Workplace Privacy Here and Now

I had fun speaking at the OBA Institute privacy session today. I did a hot topics presentation on (1) the blurring boundary between work and private life, (2) access to stored communications on corporate systems, (3) PIPEDA application to employment in the provinces and (4) the remedial approach to dealing with employees who breach privacy rules.

Case references here:

HO-010 is quite the case for Ontario health information custodians. It’s controversial because of the following paragraph on dealing with employees who breach privacy rules:

For other staff members of the hospital involved, knowing that all of the details of the disciplinary action imposed will be publicly disclosed, should serve as a strong deterrent. This is especially true if those details also become known to other employees, either through the actions of the aggrieved individual, the custodian, or both. Employees must understand that, given the seriousness of these types of breaches, their own privacy concerns will take a back seat to the legitimate needs of the victims involved to have a full accounting of the actions taken by the health information custodian. Our primary concern must lie with the aggrieved party, whose privacy was completely disregarded.

This statement suggests (very mildly) that employers should publish information about the outcome of the disciplinary process as a means of remedying a data breach that is caused by intentional employee misconduct. As I comment in the slides below, this suggestion should be approached with great caution.

Thanks to the program chairs and the other speakers. I enjoyed the afternoon!

SCC Considers Media Access to the Courts

In Canada Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, the Supreme Court of Canada considered the extent to which the media should have unrestrained access to courthouses and whether the media could broadcast official court audio recordings of proceedings.

The genesis of the case was the passage of rules restricting the areas within certain Quebec courthouses in which reporters could conduct interviews or photograph participants. While not completely barred from undertaking such activities, the reporters were prevented from doing so in areas in which they had previously operated. Moreover, the rules prevented the broadcasting of audio recordings of proceedings, both the official recordings as well as recordings made by the reporters themselves.

The Court analysed the case as a question of a restriction on freedom of expression, of which the freedom of the press is an integral part. Moreover, the Court recognized that media access to the courts is essential to a meaningful “open court” principle, as the vast majority of Canadians obtain their information about, and understanding of, court proceedings from media coverage.

Nevertheless, the Court found that the restrictions, while infringing freedom of expression, were justifiable under the Charter. Notably, the Court found that it was reasonable to preserve a necessary level of decorum and serenity of hearings, which are essential to the proper administration of justice. Apparently, the Court was concerned that the ability (and willingness) of witnesses to testify in proceedings was being compromised by the concern over being photographed or subjected to unsolicited questions and interviews. It was also feared that the broadcast of audio recordings would have a similar detrimental effect, in addition to being overly invasive of the privacy of participants in the process. Thus, the unrestricted media access was felt to be affecting the proceedings themselves, and potentially undermining trial fairness and the quest for truth.

The Pitfalls of Accessing Private Emails

Here’s a link to a Law Times article, reviewing an interesting decision recently released by the B.C. Supreme Court, which awarded damages for improper publication of the plaintiff’s personal emails. The parties were former spouses who were already engaged in extensive family law litigation — which sets the unfortunate and messy backdrop for the privacy-related litigation. The defendant husband published a number of defamatory comments about his ex-wife, by way of emails and internet postings. He included references to private email exchanges of his former spouse, and which he discovered on an old home computer.

The Court concluded that the defendant had “taken his battle with [his ex-wife] over custody and access far outside the ordinary confines of the family court litigation.” In addition to defaming his ex-wife, the defendant was found to have breached her privacy by publishing the contents of her private emails. As a result, he was ordered to pay damages of $40,000 for breach of privacy and defamation.

The breach of privacy aspect of the decision flows from B.C.’s Privacy Act, which creates an express statutory recourse for privacy violations. Other jurisdictions, including Ontario, have not adopted such statutory causes of action for violation of privacy, so courts in those jurisdictions would not necessarily arrive at the same result. However, some cases have suggested that there may be a common law tort for invasion of privacy, which could form the basis for similar claims.

The decision provides a reminder of the need to be prudent in accessing – and certainly in publishing – emails in respect of which there is a right or an expectation of privacy.

Also a good reminder of the wisdom of avoiding family law litigation!

Judge distinguishes between true whistleblowers and partisan pretenders in ordering disclosure of confidential source

We’ve published here before about former Minister of Parliament Blair Wilson’s defamation lawsuit, part of which rests on an allegation that former British Columbia politician Judi Tyabji distributed an anonymous and defamatory letter.

On December 31st, Mr. Justice Williamson of the British Columbia Supreme Court ordered Elaine O’Connor, a reporter to whom the letter was provided under a condition of confidence, to disclose her source. His decision turns heavily on the characterization of the relationship between the confidential source alleged to be Tyabji and O’Connor. His Honour says:

I am satisfied that if the source is an arm’s length person disclosing information to a member of the media out a sense of civic responsibility grounded in a desire to foster accountability and responsibility in Members of Parliament, the public interest in protecting the identity of such a source outweighs the public interest in ensuring the proper administration of justice. But I also am satisfied that if the source is a participant in a scheme to favour the interests of one side in an acrimonious family dispute, or is a participant in a politically motivated scheme to defame and discredit an elected politician, then the public interest in fostering the proper administration of justice outweighs the public interest in protecting a journalist’s anonymous source.

Mr. Justice Williamson said that he was unable to find which of the two categories into which the anonymous source alleged to be Tyabji fell, and therefore held that O’Connor had failed to meet her burden of establishing the privilege she claimed.

This puts journalists in a particular dilemma given the evidence available to prove a source’s motive will always be limited if anonymity is to be maintained. The Globe and others report that the decision will be appealed. It seems like one that may have some legs.

Lougheed v. Wilson, 2010 BCSC 1871.