Category: Uncategorized

Case Report – Costs award for “scandalous” pursuit of Anton Piller

On March 26th, the Saskatchewan Court of Queen’s Bench made a significant costs order against a group of plaintiffs for bringing an application for an Anton Piller order and resisting an order to set it aside, both in a manner it deemed to be “scandalous.” The order fully indemnified two separately represented groups of defendants for costs from the date of execution of the Anton Piller to the date of the hearing of the defendants’ motion to set aside. The Court discounted the costs it awarded to a third group of jointly-represented defendants because it held the costs actually incurred were excessive. For a summary of decision to set aside the Anton Piller, see here.

Agracity v. Skinner, 2010 SKQB 123 (CanLII).

Case Report – Another e-FOI case out of Alberta

On January 14th, the Alberta Court of Queen’s Bench quashed part of an OIPC order about the reasonableness of a search for electronically stored records.

The Court quashed an order requiring the University of Alberta to restore and search e-mail server backup tapes. It held the OIPC erred by making this order without considering the restriction on the obligation to create records that require an institution to use more than its normal “computer hardware and software and technical expertise” or cause “unreasonable interference” with its operation. As in Edmonton Police Services from last year, the Court seemed to assume that restoring compressed e-mails from a backup tape involves “creating” a record.

The Court also upheld the OIPC’s order to search again. In doing so, it affirmed an OIPC finding that it was unreasonable to search for “complaints” related to the requester by only searching e-mails of the two administrators who invited feedback and not the department members from whom feedback was solicited. The Court commented that a search of the recipients’ e-mails only was insufficient given the (unresolved) potential for deletion of e-mails:

The University, on the other hand, insists it was reasonable to restrict the scope of the search to just those two persons because they were the people who would have been aware of the complaints and would have received them. While the Chair and Associate Chair were the most likely recipients of complaints, it was reasonable to consider whether others might have responsive records, including the senders of any complaints. This was particularly so given the University’s evidence that the Chair and Associate Chair had no standard practice in regards to retention and deletion of records, gave no evidence as to whether they had deleted any email, and gave no evidence that they did not recall receiving any written complaints.

The Court also affirmed an order requiring the University to apply broader search terms in searching again on the basis that a keyword search based on the requester’s first or last name only was unreasonable.

Hat tip to Linda MacKay-Panos at ABlawg. See here for Linda’s summary.

University of Alberta v. Alberta (Information and Privacy Commissioner), 2010 ABQB 89 (CanLII).

Information Roundup – 4 April 2010

Here are some recent tweets within the domain:

Take note that I’ve added a link to Michael Power’s new “Dot Indicia” privacy and information security blog. Mike is very knowledgeable and thus far is demonstrating it in his posts. He’s also originally from Nova Scotia, a good thing in my books.

Welcome to the blawgosphere Mike!

Case Report – Court won’t order production of bank records to help judgement creditor

On March 24th, the Ontario Superior Court of Justice declined to order the production of bank records so the applicant, a judgment creditor, could initiate a Sheriff’s sale.

The applicant held a first mortgage on the debtor’s home, which he owned and mortgaged jointly with an estranged wife who continued to live in the home. The respondent bank held a second mortgage.

The applicant filed a writ of execution after receiving a judgement and later sought to initiate a sale of the home. The Sheriff would not do so without documentation showing the debtor’s equity in the home, so the applicant asked the respondent bank for documentation. When the bank refused, the applicant applied for production. It argued that an order was necessary because it could not find the debtor to serve him with a judgement debtor notice of examination, and even if it could find the debtor, that it was more efficient to simply order production of the bank statements.

The Court held that the applicant was not entitled to the documentation under the Mortgages Act and declined to order production based on its equitable jurisdiction. It held that the bank was not implicated in a wrongdoing in the sense that banks often are when individuals flow monies obtained by fraud through bank accounts. Moreover, it held that the order was not necessary given the applicant could examine the debtor’s wife, who had a privacy interest in her (joint) bank records and an important interest in the property at risk of sale. Instead, the Court granted leave to add the debtor’s wife as a respondent so it could seek an order, to be made on notice, for her examination.

Citi Cards Canada v. Pleasance, 2010 ONSC 1175.

Case Report – Div. Court issues significant decision on Ontario FOI exclusions

On March 26th the Divisional Court issued a significant decision on the Information Privacy Commissioner/Ontario’s jurisdiction to oversee claims that records are excluded from public access.

The requester asked the Ministry of the Attorney-General for access to records concerning the handling and progress of a high-profile prosecution. The MAG claimed the records requested were excluded by section 65(5.2) of FIPPA, which states, “This Act does not apply to records relating to a prosecution if all proceedings in respect of the prosecution have not been completed.”

The IPC routinely asks for the records subject to both exclusion and exemption claims, though this practice may be in some flux with respect records claimed to be subject to solicitor-client privilege since the Supreme Court of Canada’s Blood Tribe decision. In this case, when the MAG did not produce records voluntarily, the IPC ordered it to: (1) produce responsive records except those “clearly” subject to a solicitor-client privilege claim; (2) make exemption claims in the alternative to its exclusion claim; (3) prepare and produce an index of records; and (4) provide an affidavit in support of solicitor-client privilege claims.

Though the order was an interim order, the Court decided to hear the MAG application for judicial review. It held that the IPC erred in interpreting the scope of 65(5.2) and made an unreasonable order.

The section 65(5.2) decision is particularly significant given the Court’s finding that IPC erred in reading the words “relating to” as requiring a “substantial connection.” It said:

The meaning of the statutory words “relating to” is clear when the words are read in their grammatical and ordinary sense. There is no need to incorporate complex requirements for its application, which are inconsistent with the plain unambiguous meaning of the words of the statute.

The Adjudicator’s interpretation of the phrase “relating to” is also discordant with the intention of the Legislature. There are no pragmatic or policy reasons to impute a substantial connection requirement and depart from reading the words in their grammatical and ordinary sense in the context of the Act.

The IPC also applies the substantial connection test in adjudicating the employment records and teaching and research records exclusions. Though the language of these exclusions is slightly different than the language of section 65(5.2), the Court’s reasoning casts doubt on the use of the substantial connection test across-the-board.

The Court did not make a finding on whether IPC has the power to order the production of records that are claimed to be excluded nor did it opine on the scope of any such jurisdiction. It simply held that the IPC’s order was unreasonable because it would interfere with the interests the section 65(5.2) exclusion was intended to protect. Its disposition, however, suggests that looking at records claimed to be excluded is not necessary. Rather than send the matter back to the IPC, the Court simply declared that the request was for excluded records and could be brought back on when the underlying prosecution is complete. It did so on the face of the request.

Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII).

Case Report – Arbitrator says relevant video surveillance evidence is admissible… period

On January 26th, Saskatchewan Labour Arbitrator William Hood rejected a union argument to exclude surveillance evidence recorded by an in-plant video surveillance system. In doing so, he made the following broad statement on the admissibility of unlawfully obtained evidence at labour arbitration:

Video evidence, even if improperly obtained, is admissible. As a general rule, subject to circumstances where the Canadian Charter of Rights and Freedom [sic] apply, the test for admissibility of evidence in a court of law is relevance and if admissible, the court is not concerned with how the evidence was obtained (see R. v. Wray, [1971] S.C.R. 272).

Not all Canadian labour arbitrators apply this traditional rule of evidence.

Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. McKesson Canada Corp. (Birch Grievance), [2010] S.L.A.A. No. 1 (QL) (Hood).

Case Report – No interim injunction for employer’s vehicle telematics program

On February 19th, a British Columbia labour arbitrator dismissed a union request for an interim order to restrict an employer from using vehicle telematics to monitor the use of its maintenance fleet.

The employer allowed employees to drive its vehicles home but prohibited personal use. One of its reasons for implementing a telematics program was to support this rule.

Arbitrator John Steeves suggested that the employer’s collection of vehicle use information (trip start, trip end, distance driven, idle time, stop time between trips, gas consumption, speed) was reasonable for the purpose of managing the employment relationship. He also suggested that such information was less sensitive that location information, which the employer did not collect.

This is just an interim award and the reasoning is qualified, so it is not particularly authoritative. However, it is consistent with the relatively permissive existing jurisprudence on fleet monitoring by employers.

Otis Canada Inc. v. International Union of Elevator Constructors, Local 82 (Telematics Devices Grievance), [2010] B.C.C.A.A.A. No. 28 (QL) (Steeves).

(trip start, trip end, distance driven, idle time, stop time between trips, gas consumption, speed)

Case Report – Proprietary rights weigh against non-party production order

On March 18, the Perell J. of the Ontario Superior Court of Justice dismissed a motion for non-party production. In doing so, he made some notable comments about how to weigh the interests of non-parties whose information is sought by parties to litigation.

The plaintiffs in a proposed class action sought production from an automotive sector market research company. Their expert obtained the data under an academic license and used it to prepare an opinion supporting allegations that General Motors, the defendant, had engaged in anti-competitive behavior. The non-party research company claimed that the expert had breached his license, that its reputation was built on independence and that would be harmed if its data was allowed to be used against industry members, including its customer General Motors.

Perell J. dismissed the motion based on a finding that the plaintiffs did not prove necessity. He said, “all they have proven is that they must find another way to prove that they have a way to satisfy some of the criteria for certification.” He went on, however, to consider the fairness component of the test for production and gave heavy recognition to the market research company’s direct proprietary interest in the data. Perell J. said:

I appreciate that the court has the power and has exercised it to take away a non-party’s rights of property and privacy, but, in my opinion, the exercise of the power to compel production must be rare when a non-party wishes to assert its property and privacy rights as opposed to objecting merely on the grounds that the information it has is irrelevant to the proceedings or on the grounds that it would simply be bothered or inconvenienced by producing the information.

In some cases, a non-party may simply have the property right of possession over such things as banking records, accounting records, medical records, minutes of meetings, contractual documents, deeds and certificates of ownership, etc., and in those instances a court may be more ready to exercise its power, but in the case at bar, JATO has valuable proprietary rights that go beyond possession and rather the property being sought is its stock in trade and its forced sale of its products may harm JATO’s goodwill.

The last paragraph is more likely about the distinction between information with commercial value and information with operational value than a comment on the ability to access non-party records that one possesses on behalf of others who have a personal privacy interest in the records.

Tetefsky v. General Motors Corp., 2010 ONSC 1675 (CanLII).

Ontario’s new civil rules – Now that it’s your procedure, what are you going to do about it?

I’d like to thank LexisNexis Litigation Services for the opportunity to speak at its Breakfast Bytes seminar on e-discovery and the new Ontario rules. I did my best to provide an inspirational message on the new Rules and Pamela Fontaine Peters of Micrapol did a great practical presentation on the ins and outs of the e-discovery process. My slides are below, with an annotated version available at SlideShare. Enjoy!

Third Circuit student speech cases illustrate struggle to characterize communication through social media

This is a lengthy post about the two recent student speech decisions of the United States Third Circuit Court of Appeals – Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. The Court reached the opposite conclusion in each case, though both dealt with sanctions imposed by school boards for similar “misuse” of social media. These conflicting judgements illustrate a dialogue about whether to recognize the unique impact of harmful social media use by students.

Layshock – Physical remoteness prevails over intangible connections to the school

In Layshock, on February 4th, the Court affirmed a student’s successful First Amendment claim and rejected a school board’s argument for an exception to the “material and substantial disruption” test for enjoining student speech.

Layshock argued that he was protected by the First Amendment in creating a MySpace “parody profile” of his principal. He created the website outside of school hours using a home computer, but used a picture of the principal that he copied from a board website. The profile included various assertions about the principal regarding drinking, use of drugs and use of prostitutes. It is debatable whether Layshock’s communications were defamatory given their context, but they were vulgar and the principal testified to feeling demoralized and degraded. The judgement says word of the profile “spread like wildfire” and led to the posting of two other similar sites. The board issued a penalty that included a ten day suspension.

On appeal, the board argued that the speech itself (apart from its effect) deserved sanction because it was vulgar, harassing and directed at the school community. It faced two challenges. First, the link to the board’s interests was very intangible; aside from the copying of the picture, Layshock’s activity was clearly situated outside of the school and only linked to the school by virtue Layshock’s intent. Second, the board effectively argued for an exception to the fundamental American rule on student speech from Tinker v. Des Moines Indep. Cmty. Sch. Dist. The rule in Tinker establishes that a school board cannot enjoin student expression that does not “materially and substantially disrupt the work and discipline of the school.” The United States Supreme Court has found exceptions to Tinker, including one that permits schools to sanction vulgar expression in the name of encouraging the “fundamental values of ‘habits and manners of civility’.” The question in Layshock, however, was whether this exception could be rightly applied to conduct so physically remote from the school.

The Court was clearly uncomfortable in departing from the rule in Tinker. It said:

As noted earlier, the District’s January letter to the Layshocks advising them of Justin’s suspension reads, in relevant part, that it was punishing Justin because: “Justin admitted prior to the informal hearing that he created a profile about Mr. Trosch.” Although the letter also mentions disruption, the District does not now challenge the district court’s finding that Justin’s conduct did not result in any substantial disruption. Moreover, when pressed at oral argument, counsel for the School District conceded that the District was relying solely on the fact that Justin created the profile of Trosch. We have found no authority that would support punishment for creating such a profile unless it results in foreseeable and substantial disruption of school.

Had the board successfully attacked the lower court’s finding on disruption based on evidence about the impact of Layshock’s expression on the principal himself, the outcome would have differed. As for the exception to Tinker for vulgar and uncivil expression, the Court held that school boards have no business in sanctioning vulgar and uncivil expression outside of the school. Though it acknowledged that a school is not bounded by “bricks and mortar surrounding the school yard” it said:

It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in using his grandmother’s computer while at his grandmother’s house would create just such a precedent and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of free expression.

By this statement, the Court suggests that student expression published through social media should be treated as private and should not be deemed to be associated with any particular school-related harms.

Blue Mountain – Majority keeps with Tinker but recognizes unique harms that flow from misuse of social media

In Blue Mountain, also issued on February 4th, a 2-1 majority of the Court reached the opposite conclusion to the Layshock panel after affirming a finding that a school board had met the material and substantial disruption test from Tinker. Though the majority paid heed to Tinker, it made some very broad statements about the unique harms that flow from misuse of social media.

The facts in Blue Mountain were remarkably similar to those in Layshock. The board suspended J.S. and K.L., two eighth grade girls, for posting a MySpace profile that parodied their principal. The site did not name the principal, but included his picture (taken by the girls from the school’s website) and asserted that he was a sex addict and pedophile. The principal, who testified that he felt upset, angry and hurt, investigated himself and then suspended J.S. and K.L. for ten days.

The majority made clear that it was deciding a different question than decided the same day in Layshock: “We decline today to decide whether a school official may discipline a student for her lewd, vulgar or offensive off-campus speech that has an effect on-campus because we conclude that the profile at issue, though created off-campus, falls within the realm of student speech subject to regulation under Tinker.” It held that the Tinker rule does not prohibit school boards from enjoining conduct that causes reasonably foreseeable harms and, in the circumstances, held that the board could act to prevent a foreseeable deterioration in school discipline.

Unlike the panel in Layshock, the majority in Blue Mountain recognized that J.S. and K.L.’s off-campus expression was harmful by its very nature:

The girls embarrassed, belittled, and possibly defamed McGonigle. They created the profile not as a personal, private, or anonymous expression of frustration or anger, but as a public means of humiliating McGonigle before those who knew him in the context of his role as Middle School principal…

Undoubtedly, students have made fun of or made distasteful jokes about school officials, free from the consequences of school punishment, either out-of-earshot or outside the school context since the advent of our modern educational system. However, due to the technological advances of the Internet, J.S. and K.L. created a profile that could be, and in fact was, viewed by at least twenty-two members of the Middle School community within a matter of days…

We thus cannot overlook the context of the lewd and vulgar language contained in the profile, especially in light of the inherent potential of the Internet to allow rapid dissemination of information. Accordingly, J.S.’s argument for a strict application of Tinker, limited to the physical boundaries of school campuses, is unavailing.Instead, we hold that off campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.

These statements are very broad. Though the majority respects the Tinker framework, it establishes a strong basis for a presumed disruption of school activity. In doing so, the majority accepts the very argument rejected by the panel in Layshock.

Conclusion

Commentators have questioned whether the conflicting rulings are justified based on the facts. In my view they are not, and the two awards illustrate a very live and significant debate about how to characterize online student expression.

Tinker aside, boards in Canada and the United States have been given a relatively broad license to control student activity within the school. Civil libertarians would like to sustain a relatively hard in-school versus out-of-school distinction because the distinction allows for free expression on a range of matters outside of the school and in private. The question, though, is whether it is proper to apply a hard distinction in assessing online student expression of the kind demonstrated in Layshock and Blue Mountain.  This question is obviously yet to be resolved.

[Qualification. I practice law in Ontario, Canada and act for educational institutions. This is a comment and not a legal opinion and I am not holding myself out as qualified to practice in matters related to American law.]