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 – Rise of citizen journalism does not devalue work of professional journalists…

…but law enforcement trumps all.

Yesterday, the Ontario Court of Appeal restored a search warrant and assistance order that was served on the National Post. Unless the order is stayed pending an appeal, it will require the Post’s editor-in-chief to provide the RCMP with document and envelope received from a confidential informant. The RCMP believes the document and envelope will contain evidence that could identify a person who committed a criminal conspiracy against former Prime Minister Jean Chretien.

In 2001, Andrew McIntosh from the Post received a document that appeared to be a Business Development Bank of Canada loan authorization for a $600,000 loan to the Auberge Grand-Mere. The document listed a $23,000 debt to “JAC Consultants,” a Chretien holding company. The auberge was in Mr. Chretien’s home riding, and he had previously admitted to contacting the BDB’s president to urge him to approve the loan.

McIntosh circulated copies of the document to the BDBC, to the Prime Minister’s Office and to Mr. Chretien personally the course of his investigation. Based on a comparison between its file copy of the document and what McIntosh provided, the BDBC complained to the RCMP that the document was a forgery. As part of its investigation, the RCMP sought the document and envelope. Although the allegedly forged communication had been widely distributed, it believed that document and envelope might contain fingerprints and DNA that would help it identity the sender. The RCMP obtained a search warrant and an assistance order that became the matter of the appeal. The Post resisted because McIntosh had promised anonymity to his informant (who simply passed the documents to him) and (so it appears) because he questioned the whether the disclosure would actually help the RCMP’s pursuit of the wrongdoer.

The Court of Appeal award turned on an analysis of the fourth “Wigmore criterion” – the final criterion for recognition of a case-by-case privilege, which asks whether the injury to the relationship between the parties to the communication that would flow from the disclosure is greater than the benefit gained from the correct disposal of the litigation. The Court held that it was appropriate to simply assess the Post’s Charter claim based on the Wigmore analysis because it required the same balancing of interests required by section 2(b) of the Charter.

The Court held that the judge who reviewed the search warrant erred in finding that balance weighed in favour of finding that the envelope and document were privileged because she wrongly inferred that there was only a speculative possibility that the documents would advance the investigation and wrongly disregarded the law enforcement interest at stake. In its reasoning, the Court held that an investigative journalist cannot insulate a potential wrongdoer from a law enforcement investigation by giving an absolute promise of confidentiality because this would lead to law enforcement’s role (and the court’s oversight of its role) being usurped:

McIntosh himself recognized that there must be at least some limits on the press’ entitlement to protect the confidentiality of its sources. That is why he told X that his promise of confidentiality would remain binding only so long as he believed that he was not being misled. However, once the court concluded that there were reasonable and probable grounds to believe the document was a forgery, McIntosh could not arrogate to himself the right to decide whether X was a wrongdoer.

Notably, the court rejected an argument that must have gotten the Post and the other participating media organizations backs’ up. The Crown had argued that citizen journalism was reason not to treat the journalist-source relationship as one which should be “sedulously fostered” under the third Wigmore criterion. The Court said:

We reject the Crown’s first contention. The case-by-case approach to privilege does not require us to establish the boundaries of legitimate journalism. The National Post is a recognized national news organization and McIntosh is a respected journalist. It can hardly be disputed that they fall within the class of persons who may be entitled to the benefit of journalist-confidential source privilege.

This comment is likely more interesting than significant, but the court’s Wigmore analysis goes more to the fundamental role of investigative journalists under the Charter. Members of the Fourth Estate are fierce defenders of this role, so we’ll see if they try for an appeal.

R. v. National Post, 2008 ONCA 139.

Hicks Morley’s Information and Privacy Post 2007 Year in Review

Hicks Morley recently published its “2007 Year in Review,” which is an indexed and edited compilation of much of the case law I’ve covered in this blog plus other significant cases from 2007. I feel somewhat unpatriotic about it, but co-editor Paul Broad and I selected the Vioxx privilege case as the most notable case of the year. Professor Rice’s reasoning on the factual inferences that ought reasonably to be drawn about the purpose of a communication based on how e-mail is communicated to and from internal legal counsel is significant, but we like Vioxx more for what it demonstrates about the challenge in managing business information today.

Here’s a snippet of our opening editorial:

Picture the records. Thirty thousand of them, all printed and stored in about 81 bankers boxes. They were not organized in chronological or any other logical order and contained numerous e-mail strings with duplicate communications, none of which were grouped. Merck actually had to review a set of records that was over 60 times this size to even claim privilege over these records, but even in litigation of such massive scale, Merck no doubt economized by doing some form of automated search on internal and external counsel names. This wasn’t good enough in the end, because when the plaintiffs challenged Merck’s privilege claims the litigants and the court were drawn into an examination of each and every line in every one of the 30,000 disputed records – first by way of a summary process and then by way of a detailed examination of a 2600 record sample. Since Merck’s novel theory that would have enabled it to avoid the burden of a record-by-record justification was rejected – one that relied on pervasive regulation of the drug industry – many of its privilege claims were rejected.

Although the Vioxx case actually involved physical records, it highlights the challenge associated with e-discovery that is the dominant concern of our civil justice system today. How can businesses afford to meet their production requirements in light of their massive and unorganized stores of electronic records? Yet civil litigators and law clerks might empathize with information and privacy coordinators. Every coordinator we know has ploughed through stacks of printed e-mail chains to assess whether any exemptions from an access requirement (all with their nuances and ambiguities) should be claimed.

All of us are working on our part of this challenge. We’re working on the root cause by managing information better, retaining it for shorter but legally compliant time periods and by providing guidance to employees on responsible record creation. (Is that really what you want to be putting in an e-mail?) We’re working on good preservation, search, retrieval, review and production processes – those that are efficient and defensible, and often rely on technology. And finally, we’re working on the law of production and access to information itself.

You can download a copy of the 2007 Year in Review here.

Case Report – Significant case on waiver of informer privilege proceeds

In a case on a narrow but novel point of law, Nordheimer J. of the Ontario Superior Court of Justice held that a confidential informant should be given notice of a motion to determine the scope or validity of a purported limited waiver of privilege.

The defendants were police officers who were accused, in part, of mistreating one or more individuals who worked as their confidential informants. One such informant agreed to a limited waiver of privilege to testify in support of the prosecution – i.e., he agreed to testify against the accused while maintaining the privilege as it applied to his other “work” with the police. The defendants argued that there can be no limited waiver of privilege as a matter of law and also argued that limited waiver would cause an unfairness in the proceeding.

The Court rejected the Crown’s argument that the informant had no interest that justified giving him notice:

That submission seems to me to fail to take into account the special position that the CI has in this proceeding. The CI was allegedly mistreated by one or more of the accused officers. He or she may very much wish to come to court and give evidence regarding that experience but, at the same time, not wish to jeopardize their status as a confidential informant more than is absolutely necessary to accomplish that goal. The CI would then have a very direct interest in the determination of whether a confidential informant can give a limited waiver of the privilege.

Nordheimer J. also held that the accused police officers have no standing to argue that the Crown had breached the informant’s privilege (in an attempt to stop him from testifying). While recognizing that a police officer has a duty to protect an informant’s identity, he held that the privilege belongs to the informant and the Crown.

R. v. Schertzer, 2007 CanLII 56497 (ON S.C.).

Case Report – Court comments on competing burdens in disputes over litigation privilege

On December 14th, the Ontario Superior Court of Justice issued a principled judgement on litigation privilege, commenting on both the nature of the evidentiary burden on a party claiming the privilege and the burden on a party seeking disclosure notwithstanding the privilege on the basis that the records would be arguably relevant to the misconduct alleged.

The Court held that the party claiming litigation privilege has either a one or two-step evidentiary burden. Where the court can infer from the circumstances that all documents prepared after litigation is reasonably anticipated were prepared for the dominant purpose of the anticipated litigation, it will do so, meaning that the claimant need only prove that litigation is reasonably anticipated. Where such an inference cannot reasonably be drawn (where there are numerous issues between the parties, only some of which being the subject of reasonably anticipated litigation, for example), the party claiming privilege must prove that litigation is reasonably anticipated and must also prove, on a record-by-record basis, that the records were prepared for the dominant purpose of the anticipated litigation.

On the burden facing a party who seeks disclosure notwithstanding litigation privilege, it held that relevance alone will not overcome the privilege. This case involved a bad faith claim against an insurer. The plaintiff had argued the insurer’s claim file was highly relevant and that the it would be constrained in proving bad faith without it. The Court disagreed, holding that a party seeking records subject to privilege must prove a prima facie case of misconduct first.

I noticed this case after reading a very good and far more detailed entry on Cavanaugh Williams’ blog, an excellent blog on civil litigation and insurance law. Please see its summary here.

Mamaca v. Coseco Insurance Company, 2007 CanLII 54963 (Ont. S.C.J.).

Case Report – Facts gathered by legal counsel not privileged

On December 3rd, the Northwest Territories Supreme Court held that facts gathered by Department of Justice lawyers on behalf of the Commissioner of the Northwest Territories and a government department were not subject to litigation privilege.

The plaintiff, a government doctor, brought an action for wrongful dismissal. He was terminated for other reasons, but argued that the termination decision was tainted in part by allegations that he was a known pedophile in the United States. Department of Justice lawyers made inquires of the R.C.M.P. about these allegations, and the timing of these inquires and the facts gathered by the Department of Justice were relevant to the plaintiff’s bad faith claim. The government claimed that information related to the inquiries was subject to solicitor-client and litigation privilege.

The Court rejected both claims. It rejected the litigation privilege claim, in part, because the information was gathered by counsel. It said:

As I have already stated, the purpose of litigation privilege is to create a “zone of privacy” to facilitate investigation and preparation for trial in the context of an adversarial process. Bearing this context in mind, I think there is merit to the argument that a distinction should be drawn between information generated by investigations conducted on behalf of one’s client, or documents created by counsel in the context of imminent or existing litigation, as opposed to pre-existing information or documents that are simply copied or gathered by counsel.

This reasoning has been accepted by the Ontario Court of Appeal in Chrusz, but was left open in Blank, the Supreme Court of Canada’s leading litigation privilege judgement.

Bargen v. Canadian Broadcasting Corp., [2007] N.W.T.J. No. 101 (QL).

Case Report – Settlement correspondence to be produced despite clear terms of settlement

On November 16th the Nova Scotia Supreme Court ordered the plaintiff in an action for LTD benefits to produce correspondence he had sent and received in the course of settling a claim against his former employer.

The plaintiff settled a wrongful dismissal action and a human rights claim brought against his former employer for $65,000. The amount was expressly allocated as general damages in the settlement agreement. The plaintiff continued his action against the LTD insurer for non-payment of benefits, which raised the issue of whether any portion of the $65,000 would be deductible under the LTD plan as “earnings recovered.” To address this issue, the insurer requested production of the settlement correspondence. The plaintiff resisted by raising settlement privilege and claiming that the settlement document itself (which had been produced) was proof that none of the damages were deductible.

The Court ordered the documents to be produced, noting that the plaintiff could still raise a parole evidence argument at trial. It rejected the plaintiff’s argument that the express allocation to general damages weighed against production, noting that the plaintiff had a duty of good faith to the insurer:

There may not have been a contractual right to control the settlement process, but the plaintiff does have good faith obligation in dealing with the LTD Fund, in circumstances where lost earnings may have been a significant factor in arriving at settlement.

Inglis v. Nova Scotia, 2007 NSSC 314.


Case Report – BCCA applies common interest privilege

On October 16th the British Columbia Court of Appeal applied the common interest privilege doctrine in finding that a draft legal opinion prepared for a vendor of property was immune from production despite being shared with the purchaser, its various officers and the potential financial underwriters of the proposed transaction. The opinion was about the validity of the plaintiff’s claim, which challenged the proposed transaction.

The Court explained:

The disclosures to Mr. Hotel were in the course of discussions between the solicitor for the De Graaf defendants (Mr. McEwan), the solicitor for Western (Mr. MacLean) and the solicitor for National Bank Financial. (Mr. Hotel). The interests of the clients of the three solicitors were not identical but they were common to the extent that financing of the Western exploration of the Mongolian properties was beneficial to all of them. They also shared an interest in assessing the invalidity of Maximum’s claims. Sharing the opinions in the McEwan draft was reasonably in aid of a due diligence investigation of the Maximum litigation. The chambers judge put it in terms of an ongoing interest in completing the transaction which the disclosure was designed to facilitate. In my view, that is a sufficient common interest to support the extension of the privilege. In this regard, I agree with Mr. Justice Lowry (as he then was) in Fraser Milner Casgrain LLP v. Canada (M.N.R.) 2002 BCSC 1344 (CanLII), (2002), 6 B.C.L.R. (4th) 135, 2002 BCSC 1344, relied on by the chambers judge in the quotation I have earlier included, that commercial transactions can benefit from an uninhibited exchange of legal opinions among parties allied in interest.

The Court also rejected claims of waiver based on the purchaser’s internal communications and based on “state of mind” issues pleaded in the defence.

Maximum Ventures Inc. v. De Graaf, 2007 BCCA 510.

Case Report – Leave to appeal granted in breach of privilege case

On October 25th, the Ontario Superior Court of Justice (Divisional Court) granted leave to appeal on a narrow issue in a case in which plaintiff counsel was ordered to be removed as counsel of record in two related actions after it retained a former member of the defendant hospital’s executive team as an expert witness.

Patillo J. made the impugned order in June. He held that the plaintiff had received confidential information attributable to the defendant’s solicitor-client relationship and held that the plaintiff had not rebutted the inference that the defendant would suffer prejudice as a result of the breach. In considering the six factors going to remedy first articulated by the Supreme Court of Canada in Celanese, he held that the potential effectiveness of after the fact precautionary steps was not an appropriate factor to consider because plaintiff counsel had initiated contact with the hospital’s former employee without taking any precautionary steps.

The Divisional Court granted leave to appeal on this issue, stating the question for appeal as, “Before being removed from the record, are these plaintiff’s precluded from an opportunity to propose ‘other precautionary steps,’ after the fact, having obtained privileged information from defendants by the plaintiffs’ own actions.”

Miele (Litigation Guardian of) v. Humber River Regional Hospital, 2007 CanLII 448209 (Ont. Div. Ct.).

Garbage case touches on idea of practical obscurity

It’s at the obscure end of what I’ll cover on this blog, but the Alberta Court of Appeal’s October 18th decision in R. v. Patrick contains an intriguing debate about an individual’s expectation of informational privacy in garbage.

Conrad J., in dissent, held that the Calgary Police violated an accused individual’s section 8 Charter rights by seizing information…

  • mixed in with garbage…
  • in opaque garbage bags…
  • inside garbage cans…
  • that were placed in a receptacle without a lid…
  • on the accused individual’s property.

Good use of bullet points? They’re a cute prelude to the point Conrad J. makes about the accused individual’s expectation of privacy:

In this case, the appellant put his garbage out for municipal collection. Municipalities have an interest in the orderly collection and disposal of garbage. Citizens are forbidden from burning garbage in their homes and citizens pay taxes for this municipal collection service. A homeowner, such as the appellant, places his garbage out for collection on the understanding that his garbage will be treated in the same manner as his neighbour’s garbage – it will be picked up by the garbage collectors and placed inside a garbage truck where it will be mixed with other garbage. At this point, the homeowner’s privacy in respect of much of the information regarding his lifestyle and personal choices will be completely preserved because it will have become anonymous. Any privacy in garbage that identifies the homeowner directly, such as a discarded bank statement, will also be preserved, although not so completely, by the fact it is now contained within a vast pile of collected detritus that makes it almost impossible to find.

The last sentence in the above quote is significant because it endorses the concept of inaccessibility or practical obscurity of information: information can still be private (or one’s interest in keeping something private can subsist) even if it is exposed to unauthorized or limited authorized access. This concept may become more relevant given the prevalence of electronically stored information. For starters, think of the lost backup tape that can’t easily be restored and how a valid claim that the information on the tape is inaccessible might weigh against either a civil or statutory duty to warn. Accessibility may also be relevant in some disputes about waiver of a confidentiality interest or legal privilege.

Ritter J.A.’s majority judgement leaves Conrad J.’s practical obscurity point intact. Instead, and apparently taking judicial notice that garbage often goes to sorting facilities, he states, “With respect, I disagree with this assessment as it does not equate with the myriad of ways in which garbage is handled in Canada.”