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).

Unauthorized Secondary Use Claim To Proceed, Unauthorized Retention Claim Dismissed

On May 12th, the British Columbia Supreme Court allowed a novel privacy class action to proceed.

While most civil privacy claims relate to claims of improper disclosure, the plaintiffs here objected to the unauthorized retention and use of personal information – specifically, the retention of newborn blood samples for medical purposes and (secondary) research purposes that were not disclosed at the time of collection. The Court held that liability for the secondary use was a genuine issue for trial.

The Court rejected the plaintiffs’ claim that rested on the alleged unauthorized long term retention of samples for medical purposes, a practice the plaintiffs claimed created a “fully functional DNA database.” The Court held that authorization to retain for medical purposes was not in doubt given the plaintiffs consented to collection for medical purposes and, at the time, did not raise any concerns about retention for the same purposes.

D. (L.) (Guardian ad litem of) v. Provincial Health Services Authority, 2011 BCSC 628 (CanLII).

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).