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Privacy, Identity, and Control: Emerging Issues in Data Protection

27 Jul

This post marks the official death of my reading pile, which involved a read of the current edition of the Canadian Journal of Comparative and Contemporary Law – one entitled Privacy, Identity, and Control: Emerging Issues in Data Protection.

I’m admittedly still digesting the ideas, so am just pointing to a good resource for reckoning with the Euro-centric forces that are bound to affect our law. Top reads were “Regaining Digital Privacy? The New ‘Right to be Forgotten’ and Online Expression” and Fiona Brimblecombe & Gavin Phillipson and Information “Brokers, Fairness, and Privacy in Publicly Accessible Information” by Andrea Slane. Check it out.

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BCSC denies access to total legal costs spent on ongoing litigation

20 Jul

On July 12th, the British Columbia Supreme Court held that a requester had not rebutted the presumption of privilege that applied to the total amount spent by government in an ongoing legal dispute. Here is the court’s argument for the withholding of such information:

[61]        The Adjudicator’s reasoning, adopted by CCF on this review, is in brief that it is clear from the facts available in the public record that the amount of legal expenditure is high. Knowing how high could only confirm this, and no more. This echoes CCF’s submission to the Adjudicator, cited at para. 35 of the Decision, that “knowing whether the total cost to date are ‘$8 million or $12 million or $20 million’ may prove embarrassing for the Province, but will not reveal privileged communications”.

[62]        In my view this line of reasoning is not sufficient to discharge the onus of proof to rebut the presumption of privilege, particularly in circumstances of ongoing litigation. I agree that the Cambie Litigation is an important constitutional case, that it is hard fought on both sides and that the amount of legal cost is undoubtedly substantial. However, in my view, an assiduous inquirer, aware of the background available to the public (which would include how many court days had been occupied both at trial and in chambers applications, the nature of those applications, the issues disclosed in the pleadings, and the stage of the litigation for the period covered by the request), would, by learning the legal cost of the litigation, be able to draw inferences about matters of instruction to counsel, strategies being employed or contemplated, the likely involvement of experts, and the Province’s state of preparation. To use the CCF submission quoted by the Adjudicator, the difference between an $8 million expenditure and a $20 million expenditure would be telling to the assiduous inquirer and would in my view permit that inquirer to deduce matters of privileged communication.

British Columbia (Attorney General) v British Columbia (Information and Privacy Commissioner), 2019 BCSC 1132 (CanLII)

Advocates’ Society Tricks of the Trade – A Privacy Update

25 Jan

Here are the slides from my Advocates’ Society presentation today. I addressed the following two questions:

  1. Today, is a right-thinking judge (in a non-criminal case) likely to exclude evidence obtained in breach of privacy?
  2. The intrusion upon seclusion tort. What have we learned about elements and defences since Jones v Tsige?

The second question was to honour the birthday of the intrusion upon seclusion tort, which turned six last week. Happy birthday privacy tort!

Financial institution compliance presentation – privacy, data security and anti-spam

31 Mar

I’ve been doing a survey presentation in the Osgoode PDP program on financial institution compliance for the last five years now. Here’s this year’s deck.

What’s new? The V-Tech security measures report by the Office of the Privacy Commissioner of Canada, the Canadian Securities Administrators Staff Notice 33-321 (and some much more meaty guidance by the CSA) and the reduction of the Compufinder fine under CASL. See below for more.

 

Arbitrator issues principled decision on identification of grievors and other complainants

17 Nov

On September 5th, Arbitrator Abramsky dismissed a motion to anonymize the name of an individual who had grieved harassment, discrimination and a reprisal.

In  making its request, the Union rested heavily on the fact the grievance would invite the disclosure of the grievor’s medical information – information about a learning disability and back problems. It also argued that no purpose would be served by publication of the grievor’s identity.

Ms. Abramsky held that the open court principle applied to the statutory tribunal for whom she was sitting (the GSB in Ontario) and that openness was therefore presumed absent a “compelling reason.” In doing so, she endorsed the following statement about the identification of individuals who file serious complaints:

This rationale – that litigants who make serious accusations should not do so “from behind a veil of anonymity, assured that they will not be identified if they are found not to be credible, their allegations are rejected” – has significant resonance.  It is very easy to make serious assertions and claims.  When doing so – and pursuing such a claim – litigants should not be able to hide behind anonymity, absent a compelling reason to allow it.  Confidence in the administration of justice – and the open court principle – requires it.

Ms. Abramsky also held that medical information can vary in sensitivity and that, in the circumstances, anonymization was not justified.

Ontario Public Service Employees Union (Cull) v Ontario (Health and Long-Term Care), 2017 CanLII 71798 (ON GSB).

Cyber insurance and incident response practice

17 Nov

Here’s a deck from a Monday panel presentation that I participated in with some colleagues from the sector.  It features a cyber incident scenario and some questions. See if you can answer them, and if you’d like to have a discussion, please comment or get in touch.

All About Information Turns Ten!

2 Aug

Ten years ago on a Saturday morning in early August something inspired me to upload a post on employee surveillance to a WordPress site. I can’t remember what I called the site at that time, but the title was lame and had my name in it. Ten years and 973 posts later, “All About Information” still exists. It has facilitated a good deal of my learning and has fostered connections with some valued colleagues who work outside of my own firm, Hicks Morley. As for its merits, at the very least All About Information is now a sizable catalog of notable Canadian cases that are… well… about information. Thank you to those who have made guest posts and comments and those who have kindly corrected my numerous typos. And thank you especially to you, the reader.

Dan Michaluk