Court says implied undertaking applies to Stinchcombe disclosure

On March 15th the British Columbia Supreme Court issued a significant decision on the implied undertaking. It held:

that Crown disclosure in criminal cases is subject to an implied undertaking not to use the disclosure for a collateral purpose;
that the undertaking is not spent when disclosure materials are filed in interim applications (though is spent in respect of materials admitted as evidence at trial); and
that a court has inherent jurisdiction to enforce the undertaking by ordering materials to be returned to the Crown.

The Court ordered the respondents and their defence counsel to return documents to the Crown given the large volume of documents disclosed, the high profile nature of the criminal case, the number of third party interests implicated by the disclosure and the degree to which third party interests were affected and the failure of the Crown and respondents to agree on a means of adequately protecting the undertaking.

R. v. Basi, 2011 BCSC 314 (CanLII).

Federal Court Dismisses PIPEDA Access Application as Resolved

On April 12th the Federal Court dismissed a PIPEDA application, for the most part, because the applicant had been provided her personal information in the course of an Office of the Privacy Commissioner of Canada complaint investigation.

The applicant complained when she only received copies of records in her personnel file in response to an “all personal information” access request. The respondent provided the applicant with additional records in the course of the OPC investigation. The OPC was satisfied, and held the complaint to be well-founded and resolved, and made some recommendation about process that the respondent followed.

The Court held (based on three search affidavits) that the respondent had provided the applicant with all her personal information. It also held that the respondent was at fault for not providing the applicant with all of her personal information in a timely manner, but did not allow the application based on this finding. The basis for this disposition is not clear, but the Court did dismiss a number of remedies the applicant requested as unjustified and beyond its jurisdiction. Its reasoning also suggests that it viewed the applicant’s timeliness allegations as too trivial to be of consequence.

Though the Court dismissed the application, it did not award costs to the respondent because it had attempted to achieve exoneration in the application – an approach the Court said amounted to an unsuccessful cross-application. The applicant was self-represented.

Kollar v. Rogers Communications Inc., 2011 FC 452.

NBCA Takes Issue With Breadth and Basis for Non-Party Order, Questions Appropriateness of Non-Party’s Cooperation

On March 31st, the New Brunswick Court of Appeal issued a judgement in which it quashed an order requiring the RCMP to produce two investigation files. In doing so, made some significant comments about privacy protection and non-party production orders.

The plaintiff’s home burnt down. The RCMP investigated and did not lay charges. A month earlier, it had investigated a break and enter at the home.

The insurer denied the plaintiff’s insurance claim and defended her action on the basis of a policy exclusion that it alleged applied because the plaintiff left the house vacant for more than 30 days. It sought an order for production of the two entire RCMP investigation files, expressly including personal information protected by the federal Privacy Act. The insurer argued (without any supporting evidence to support an inference) that the files would likely contain information related to the vacancy issue. The RCMP consented and, remarkably, the Attorney-General drafted the terms of the order and wrote the court requesting that the insurer’s production motion be allowed.

The Court of Appeal quashed the order on a narrow point of law. It held that the RCMP is not a “person” that can be subject to a non-party order for production under the New Brunswick Rules of Court. Chief Justice Drapeau went on, however, to comment that the order was overbroad and granted without a proper basis. In doing so, he said:

the New Brunswick rules contemplate that non-party orders target specific materials because such orders are not meant to invite discovery
that non-party consent (though “significant”) does not relieve the requesting party from establishing the requirements for a non-party order

The Chief Justice also questioned whether the RCMP’s actions were proper though, given the Attorney-General was not before the Court, made clear that the Court was not passing judgement on “whether their involvement is faithful to the spirit, if not the letter, of the Privacy Act, including its stated purpose (s. 2) and its prohibition, except in defined circumstances, against disclosure of an individual’s personal information without his or her consent.”

Bennett v. State Farm Fire and Casualty, 2011 NBCA 27 (CanLII).

Social Media Use by Teachers and Students: OCT Recommends Limits

The Ontario College of Teachers has recently issued a professional advisory recommending strict limits on interactions between teachers and students through social media. The advisory emphasizes that teachers are professionals, who are held to high standards of conduct, in both their professional and private lives. Since inappropriate electronic communications with students – including those outside of school hours and unrelated to school matters – can lead to teacher discipline, and even criminal charges, the OCT recommends that teachers take certain precautions in their electronic communications, particularly through social media. Among other guidelines, the advisory recommends that teachers:

not be “friends” with students on Facebook, refrain from “following” students on Twitter, and otherwise avoid personal connections with students on social media;
notify parents before using social media for classroom purposes; and
use appropriate privacy settings when using social media, to ensure that students may not access personal or inappropriate postings.

The recommendations are not surprising, given the high standards of conduct expected of teachers, and the perils teachers may face from inappropriate use of electronic media – as illustrated by the recent Ontario Court of Appeal decision in R. v. Cole.

Although specific to the educational context, the OCT’s professional advisory reflects the importance of addressing the impact which social media, and electronic media in general, can have in various settings. Employers should consider whether the dynamics of their workplace justify guidelines or policies on the appropriate use by employees of social media, for example, in their interactions with each other or with customers, suppliers or other parties.

A link to the OCT’s professional advisory is here, and a related CBC article is here.

Sask C.A. Opines on Elements of Statutory Privacy Tort

On March 15th, a majority the Saskatchewan Court of Appeal affirmed a decision not to strike a pleading that was based on the Saskatchewan Privacy Act.

The case is about a Saskatchewan Power Corporation customer service representative who accessed account information for personal reasons. The account holder sued and the defendants, in response, moved to strike. The defendants argued that the plaintiff did not plead facts necessary to establish that the information at issue was of a quality protected by the Act. The ratio of the majority decision (written by Justice Ottenbreit) is summarized in the following paragraph:

The wording of the Act arguably does not require that a claim alleging a breach of privacy respecting information must necessarily plead that the information accessed is confidential or reveals intimate details of the lifestyle and personal choices of the plaintiff. This is not to say that the Act does not make the accessing of such information actionable and that certain Charter concepts of privacy and Charter analysis would not be apt in a particular case. To what extent Charter concepts and a Charter approach would be helpful remains to be determined. What is clear is that the Charter concept of reasonable expectation of privacy and its corollary concepts are arguably not congruent with the “privacy” or an “expectation of privacy”, the violation of which is actionable under the Act. Based on an examination of the Act, pleadings in terms of Charter concepts of reasonable expectation of privacy are arguably not therefore essential to a claim under the Act. The argument of SPC that the pleading is deficient because it lacks sufficient facts which would allege a violation of an expectation of privacy identical or very similar to the Charter concept fails.

Justice Ottenbreit said that it was enough for the plaintiff to plead that the individual defendant accessed her employer’s records “to obtain information about [the plaintiff’s] activities” for her own purposes.

Justice Smith dissented. She held that, at a minimum, a plaintiff claiming breach of an informational privacy right based on the Saskatchewan Privacy Act must plead facts to establish that the information at issue is “personal and confidential.”

Bigstone v. St. Pierre, 2011 SKCA 34 (CanLII).

Majority of Alberta CA Slaps OIPC on Driver’s License Case

On March 28th, a majority of the Alberta Court of Appeal held that the OIPC erred in finding that receiving and recording driver’s license and license plate numbers for security-related purposes is a breach of Alberta PIPA. This is a significant and business-friendly judgement on how to interpret private sector privacy legislation. It also demonstrates a wide gap in values between our privacy commissioners and some members of the judiciary.

Justice Slatter wrote for the majority, with a concurrence by Justice Berger. Justice Slatter held that the OIPC erred in finding that license plate numbers are personal information and erred in finding that that Leon’s failed to comply with the standard for collecting personal information under Alberta PIPA by recording the driver’s license and license plate numbers of individuals who picked up furniture.

Notwithstanding that Leon’s used license plate numbers as a backup means of identifying individuals, Justice Slatter held that license plate numbers are not an individual’s personal information because license plate number are only information “about” or “related to” a vehicle. He said, “The Act is designed to regulate and protect information that is uniquely connected to one person.” He also interpreted the meaning of personal information in light of the normative “reasonable expectation of privacy” concept, noting that there is no reasonable expectation of privacy in a license plate number because it is displayed openly in public.

Regarding whether the recording of driver’s license and license plate numbers is justifiable under the standard for collection in Alberta PIPA, Justice Slatter held that the OPIC’s finding was improperly influenced by a belief that the Alberta PIPA makes privacy rights paramount to an organization’s need to collect information. He held that this was inconsistent with the purpose provision of Alberta PIPA, which expressly recognizes the need of organizations to collect personal information for purposes that are reasonable. In light of this recognized need, Justice Slatter stressed that the standard for collecting personal information under Alberta PIPA is not a strict necessity standard. He referred to a “reasonable necessity” requirement given section 7(2) of Alberta PIPA requires that a mandatory collection of personal information must be limited to “what is necessary to provide [a] product or service,” but Justice Slatter makes clear that the overall reasonableness of a collection should be the focus of the inquiry. This led him to state, “As long as fraud is a meaningful risk in the business, and the policies adopted have a meaningful effect on preventing or detecting fraud, those policies would be considered ‘appropriate in the circumstances’ by reasonable people.”

Justice Conrad wrote a lengthy and detailed dissent. She disagreed with the majority on whether license plate numbers are personal information and on whether the recording of driver’s license and license plate numbers is justifiable for security-related purposes.

Regarding the personal information issue, Justice Conrad relied heavily on Justice LaForest’s dissenting judgement in Dagg v. Canada and the Ontario Court of Appeal’s judgement in Ontario v. Pascoe. In Dagg, Justice LaForest argued that “the information about an identifiable individual” condition in the definition of personal information should be construed broadly. In Pascoe, the Ontario Court of Appeal held that information is about an identifiable individual if it is about and individual who can be identified when the information is combined with information from “sources otherwise available.” Justice Conrad also held that the reasonable expectation of privacy concept should not be applied in assessing whether information is protected under statute as “personal information.”

On the justification for collection issue, Justice Conrad stressed the governing reasonableness standard of review, though she did expressly disagree with the majority’s suggestion that necessity is not part of the standard for collection under Alberta PIPA.

The Court’s discussion of both these issues, especially the personal information issue, is very significant, but the context is also notable. The Alberta OPIC has had a tough go in the Alberta Courts lately, most recently having a decision quashed for reasonable apprehension of bias. It certainly did not go out on a limb here given its position against the recording of driver’s license numbers is shared (at least) by the federal and Ontario commissioners, yet it lost on the reasonableness standard of review in a manner that must feel like a good slap. Look for an appeal.

Leon’s Furniture Limited v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94 (CanLII).

No Invasion of Privacy Tort in Ontario

The Ontario Superior Court of Justice issued a significant judgment today in which Justice Whitaker held that Ontario law does not recognize a common law invasion of privacy tort. More specifically, he held that he was bound by the Court of Appeal’s 2005 judgment in Euteneier v. Lee, in which the Court commented that there is no “free standing” right to privacy in assessing a privacy-related claim by a police detainee that was based in negligence, assault, civil conspiracy and the Charter. Justice Whitaker said:

While it is certainly the case that in Euteneier, the plaintiff was not suing on the basis of an intentional tort, the extent to which privacy rights are enforceable at law was squarely before the court for the purposes of determining the content of the duty of care owed by the police to the plaintiff while in custody. In my view, the inescapable conclusion, put quite plainly by the Court of Appeal in paragraph 63 of that decision, is that “there is no ‘free standing’ right to… privacy… at common law.”

Justice Whitaker departed from the Court’s well-known decision in Somwar v. McDonald’s Restaurants of Canada. Justice Stinson decided Somwar shortly after the Court of Appeal decided Euteneier and did not consider it in finding (on a summary judgment motion) that it is not settled law in Ontario that there is no tort of invasion of privacy.

Alex Cameron acted for the defendant.

Jones v. Tsige, 2011 ONSC 1475.

Alberta CA Addresses Jurisdiction to Consider Alleged Privacy Breach by Privacy Commissioner

On February 3rd, the Alberta Court of Appeal considered who has jurisdiction to consider an alleged privacy breach by the Alberta Office of the Information and Privacy Commissioner. It held that the proper means to allege a breach of the OPIC’s confidentiality duty in the Alberta Personal Information Protection Act is by filing an application for judicial review and not by seeking appointment of a special adjudicator under the Alberta Freedom of Information and Protection of Privacy Act.

The complainant first filed a complaint to the OPIC under PIPA. He later took issue with the OIPC itself when it copied the respondents on a letter dismissing his complaint as constituting an abuse of process. The complainant alleged a breach of section 41 of PIPA, which imposes a duty of confidentiality on the OPIC that expressly permits disclosures that are necessary for the purposes of conducting an investigation and inquiry. He sought and obtained an order appointing a special adjudicator to investigate a complaint against the Commissioner under provisions allowing for such an appointment in the Alberta FIPPA.

The Court of Appeal held that the adjudicator did not have jurisdiction to hear the complaint because of an exclusion provision in Alberta FIPPA for “a record that is created by or for or is in the custody or under the control of an officer of the Legislature and relates to the exercise of that officer’s functions under an Act of Alberta.” The Court held that the adjudicator (deciding on his own jurisdiction) and the reviewing judge erred by finding that this provision excluded certain records from the right of public access but did not exclude complaints about the disclosure of personal information in such records. It held that absolute exclusion was supported by the plain language of the exclusion and a contextual reading of the exclusion. It commented on the appropriate remedial path as follows:

However, some recourse does exist in situations where the Commissioner has allegedly improperly disclosed confidential information. He acknowledges that his actions are subject to judicial review, that he may face an action based on abuse of public office given his role as a public official and, also, that he is subject to sanction or removal by the legislature should he engage in improper conduct. That said, somewhat ironically, s. 4(1)(d) protects him from the operation of the same statutory complaint mechanisms as apply to others should he improperly disclose confidential information. This result concerned the Adjudicator and the reviewing judge. If it applied, such a mechanism would provide less expensive, cumbersome and uncertain recourse than that available through judicial review or removal from office by the legislature. However, had the legislature wished the Commissioner to be subject to the same sanctions as other people, it could have included an express provision in FOIPPA to create that result while nonetheless protecting him from release of information properly required in the exercise of his functions.

The Court also held that the adjudicator and reviewing judge erred by grounding jurisdiction in section 77 of the Alberta FIPPA, which grants a right to review certain decisions of the Commissioner when acting as head of the OIPC. It held that the Commissioner does not act as head of the OPIC when exercising his adjudicative functions.

The Court’s interpretation of the records-based exclusion has some significance given the existence of similarly worded exclusions in other public sector access and privacy statutes.

Alberta (Information and Privacy Commissioner) v. Alberta (Freedom of Information and Protection of Privacy Act Adjudicator), 2011 ABCA 36 (CanLII).

Party complains about receiving confidential information of non-parties. What next?

On January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.

Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties? (2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v. Collins Barrow Toronto LLP, 2011 ONSC 441 (CanLII).

Party complains about receiving confidential information of non-parties. What next?

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties?(2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v Collins Barrow Toronto LLP, 2010 ONSC 598.