On November 12th, the Federal Court dismissed a PIPEDA application for damages for a loss of employment that arguably flowed from a wrongful disclosure.

The applicant sold the respondent scrap metal for his employer. He began to sell scrap metal to the respondent on the side and apparently sold some of his employer’s scrap metal to his own credit. The employer spoke with the respondent after it noticed a decline in sales. The respondent disclosed the fact that the applicant had opened a supplier’s account in his own name and provided the employer with the applicant’s account statements. The employer terminated the applicant, who filed and then withdrew a wrongful dismissal suit in favour of a PIPEDA application targeted at the respondent.

The Court held that the respondent breached PIPEDA by disclosing the applicant’s personal information without consent. Notably, it suggested that information about the improper sales of the employer’s own scrap metal was “about the employer’s money” and not the applicant’s personal information. This reasoning did not justify the whole of the disclosure, however, as the applicant apparently sourced some of his scrap from means other than his employer.

Despite finding a breach, the Court dismissed the application because the applicant had proven no compensable damages. While acknowledging that the applicant might not have been terminated had the wrongful disclosure not been made, it held that PIPEDA only grants a right to damages intrinsic to the breach of privacy. It explained:

The Court must examine the real nature of the remedy claimed. Such claims as humiliation, loss of community support, diminution of standings and loss of income flowing therefrom (to name but a few) caused by breach of the Act fall within the statutory cause of action created by the Act. Claims for loss of income and similar loss due to termination of employment not caused by breach of the Act, do not.

The source of the Applicant’s complaint is the loss of his employment. He even claims for loss due to loss of a second job. But all of his loss claimed is tied directly to his termination for cause. While the termination might not have occurred if there had not been disclosure, the nexus to the claimed loss is termination of employment for which Stevens had, but gave up, the right to claim was unlawful.

Stevens v. SNF Maritime Metal Inc., 2010 FC 1137.

On November 15th, the British Columbia Supreme Court awarded $40,000 in damages for defamation and breach of privacy.

The award was based partly on a number of publications made by an ex-husband about his ex-wife that the Court held were defamatory and unjustified. The Court also upheld a privacy claim based on the ex-husband’s use of e-mail communications he obtained from an old home computer and distributed for the purpose of scandalizing his ex-wife.

Nesbitt v. Neufeld, 2010 BCSC 1605.

Here are some links you may find interesting:

• Facebook, Background Checks and Job Applications http://bit.ly/9yyhN5
• Australia to Subject International Students to Biometric Scans http://bit.ly/9kD8Lt
• Who ‘Owns’ A Twitter Account: Employer Or Employee? techdirt.com/articles/20101… via @dominicjaar and thanks @VBalasubramani
• RT @slaw_dot_ca Social Media Use in the Workplace – Slagging Your Boss http://bit.ly/9mfiKH
• NYTimes: Company Accused of Firing Over Facebook Post http://nyti.ms/djca6U
• @HarrisSchoolLaw: Interesting new BCLRB case on employee use of Facebook: http://www.lrb.bc.ca/decisions/B190$2010.pdf”
• Secret Meech Lake talks remain secret theglobeandmail.com/news/politics/… via @globeandmail
• Federal government in Austrialia passes journalists shield law (by P. Timmins): http://bit.ly/aXdbsj
• RT @chrisdaleoxford: Lessons from Applied Discovery Proportionality panel in Toronto http://wp.me/p2KJ5-13d #ediscovery
• SCOTUS in NASA v. Nelson Launches Constitutional Debate on Employees’ Informational Privacy http://bit.ly/b0mVJS
• NPR: FBI’s GPS Tracking Raises Privacy Concerns-More at http://n.pr/130833487
• NYTimes: Drug Testing Poses Quandary for Employers http://nyti.ms/anRu3v
• Canadian Forces won’t change access to staff records despite Williams case theglobeandmail.com/news/national/… via @globeandmail

Three time world surfing champion Andy Irons passed away on November 2nd on the way home to Hawaii from Puerto Rico. Reports say he died as a result of dengue fever, but there’s also been reports linking the death to a rumored drug addiction. I hope the surf media gets to the bottom of the story, but am skeptical that it will not be inclined to probe. Regardless of the cause of death, it’s very sad. “AI” was a brilliant surfer and colorful personality. For me, Andy Irons was easy to like because he was always very genuine in the way he presented himself to the public. Here’s a touching tribute from photographer Brian Bielmann, with music by the late “IZ” Kamakawiwoʻole.

Dan

On October 22nd, the Tax Court of Canada issued an amusing judgement in which it relied on a taxpayer’s Facebook status in determining that he was a contractor rather than an employee. The evidence went to the parties’ intention, a relevant factor in the applicable legal test. The Court said:

Mr. Bidner put to Mr. Hall in cross-examination that Mr. Hall described himself as “self-employed” from April 2006 to the present on Facebook. Mr. Hall’s response was that you do not have to be honest on Facebook. That is correct, or at least if it is not, it is of no particular importance to this Court for this proceeding. Mr. Bidner then asked why Mr. Hall chose not to be truthful about his self-employment. Mr. Hall responded that it was to protect his privacy, just as he did not disclose what he did or where he worked. Mr. Bidner then pointed out to him that he did describe himself as a self-employed hair colourist specialist in Ottawa. The Court asked Mr. Hall if he would like to see a copy of the 2009 Facebook page and he replied that he did not need to.

Upon later request for clarification by the Court Mr. Hall indicated everything else, his age, his likes and preferences, his hometown, his education, activities and groups were all true and the only thing he misrepresented in his Facebook entry was his self-employment status. He went on to affirm again that this was because of privacy concerns. He could not explain how being employed versus self-employed touched on internet-related or other privacy concerns, especially since he disclosed himself as an Ottawa-based hair colour specialist and used his real name. In argument, counsel for the respondent was similarly unable to even hypothesize a scenario where one’s employment or self-employment status alone could be thought to give rise to a privacy concern.

Mr. Hall described himself on Facebook as a self-employed hair colour specialist. Everything else about him on his Facebook info page he says is true. This is his own description of his work status made voluntarily, describing his work during the period he worked at the appellant’s salon. It was made in a setting where nothing seemed to turn on it. Though he now says it alone was untrue and dishonest, he cannot explain why this would be the one thing he would choose to lie about on Facebook regarding his personal information.

In such circumstances, I do not accept Mr. Hall’s explanation that he chose to lie on Facebook about the self-employment characterization of his hair colouring activities at the salon. To the contrary, I regard it to be evidence that Mr. Hall intended, when he started at the salon, to be self-employed and that he understood this at least up to the time he created his Facebook entry.

Shonn’s Makeovers & Spa v. Canada (Minister of National Revenue – M.N.R.), [2010] T.C.J. No. 415 (QL).

On September 7th, an arbitration board chaired by Arbitrator Jones of Alberta partly upheld a grievance that challenged the implementation of psychometric testing for principals and others. The grievance award is largely fact-specific, but is notable for its treatment of an association argument that suggested the testing program was unreasonable because it required a transfer of personal information to the United States.

Arbitrator Jones said:

A great deal of the ATA’s objections to the LPA relate to the fact that it was created by High Performing Systems Inc, which is an American organization, is based in United States, has links to the U.S. military, and uses U.S. data (at least in part). Xenophobia does not establish the unreasonableness of the use of the LPA as part of the selection process.

Arbitrator Jones did, however, find that the rollout of the program was “maladroit,” suggesting that there were questions about the privacy impact of the program that the employer ought to have been prepared to answer.

Calgary Board of Education v. Alberta Teachers’ Assn. (Leadership Potential Assessment Grievance), [2010] A.G.A.A. NO. 52 (Jones) (QL).

On September 24th, the Federal Court held that the Information Commissioner of Canada can order the CBC to produce records it claims to be excluded as records relating to journalistic, creative or programming activities.

The CBC denied access based on a special exclusion that it was granted when it was brought under the Access to Information Act in 2007. It reads:

68.1 This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

The Court held that the Commissioner can order production of records claimed to be excluded under this provision in the course of investigating an access complaint because reading “this Act does not apply” to preclude such a power would frustrate the purpose of the ATIA. It also noted that there was no evidence of harm to the CBC’s journalistic interests that would flow from handing records over to the Commissioner.

Canadian Broadcasting Corporation v. Information Commissioner of Canada, 2010 FC 954 (CanLII).

You may be interested in Enbridge Pipelines Inc. v. BP Canada Energy Company, 2010 ONSC 3796 (CanLII) for a sample discovery agreement endorsed by Cambell J. of the Ontario Superior Court of Justice. His Honour characterizes the action as complex and with “voluminous documentation.” The agreement was negotiated over six meet and confers and looks like it was modeled from the Ontario E-Discovery Implementation Committee model. Campbell J. says, “Not every action will in my view require the detailed type of plan as set out in this Agreement. Many different types of action need only an informal agreement between counsel.”

Here are some tweets recent tweets which may be of interest.

• RT @slaw_dot_ca E-discovery and the auto-deletion of emails — Slaw http://bit.ly/9gkvrQ
• No Privilege for Accountants in England http://bit.ly/aTuE4P
• Canadian Researchers Who Fake Data Should Be Publicly Named, Says Report http://bit.ly/bbXIuH
• Odd reaction from Professor Anita Hill and Brandeis University Campus Security http://bit.ly/bvTLJo
• RT @slaw_dot_ca Clouded Thinking: Will Regulator Fear Turn Canada into a Cloud Computing Ghetto? —.. http://bit.ly/atT5x3
• Canadian Professor Is Suspended for ‘Serious Threats’ http://bit.ly/9rWo6X
• The dangers of USB drives http://slate.me/ai4Ll5
• RT @slaw_dot_ca OMA proposes a novel model for managing medical issues in employee return-to-work .. http://bit.ly/cO79vl
• RT @slaw_dot_ca To PPT, or Not to PPT (In Court), that is the question — Slaw http://bit.ly/9OL0Gt Great, but needs a visual!
• RT @slaw_dot_ca Just commented on the RCMP background check issue http://bit.ly/btSJAI
• RT @slaw_dot_ca Legal Project Management – Do litigators “scrum”? — Slaw http://bit.ly/9KMGm4
• NPR Gets it Wrong on the Rutgers Tragedy: Cyberbullying is Unique http://bit.ly/aFtLZa
• Faceplant: the Possibility of Legal Claims Arising from “The Social Network” http://bit.ly/b9lCYU
• RT @LawandLit: RT @DanielSolove My post about the Clementi suicide and invasion of #privacy case: http://tinyurl.com/28s3or5
• No Waiver Resulting from Use of Company Email Account and Laptop to Communicate with Counsel… http://bit.ly/aUESh0
• NYTimes: Before a Suicide, Hints in Online Musings http://nyti.ms/clBb1H
• Labor Disputes Arising out of Social Media http://bit.ly/9er0wO#

And on a much different note, check out this nice NPR interview with Gary Golio and Javaka Steptoe, author and illustrator of a new children’s book about young Jimi Hendrix called “Jimi Sounds Like a Rainbow: A Story of the Young Jimi Hendrix.” Cool Christmas gift idea. Did I just mention Christmas in October?!

See ya!

Dan

This September 17th litigation and privacy judgement by the Ontario Court of Appeal slipped me by. The Court affirmed an order that requires the Transportation Safety Board to produce cockpit voice recordings from the 2005 Air France crash in Toronto despite the statutory privilege covering such recordings. The grounds for appeal were narrow, though the Court summarizes Strathy J.’s balancing of interests and calls it “thoughtful and comprehensive.” For my summary of the Strathy J. order, see here.

Société Air France v. NAV Canada, 2010 ONCA 598