Category: Uncategorized

Information Roundup – 29 November 2009

Here are tweets from the last few weeks you may be interested in (in chronological order):

I need to take this opportunity to give a big shout out to “Buffalo Littlebones,” our cat. Poor little guy seems a little out of sorts because of all the attention we’re giving to our human children. Yes, you whine incessantly until we let you out, then immediately whine incessantly to be let back in. Yes, it is annoying when you prick at our necks at 3 o’clock in the morning. Yes, that was pretty uncomfortable when you refused to get off my lap for 17 hours straight of driving. Despite all this, dear Buffalo, you will always be our first!

See ya!

Dan

Case Report – Court says party ought to have taken counsel’s word about missing computer

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for production of a personal computer and criticized the moving party for proceeding in the face of a sworn statement by the opposing party’s solicitor that indicated the computer was gone.

The computer once contained information relevant to a loss of income claim. The plaintiff discarded it because it had broke down sometime after she printed and produced invoices from her personal business and sometime before a mediation attempt, which occurred slightly less than a year later. In the interim, the defendant made and sustained a request for electronic copies of the invoices.

When the defendant moved for production, plaintiff’s counsel wrote and later swore that the computer had been discarded and consented to allow the defendant to plead spoliation. Defence counsel persisted and generated some damning evidence in cross-examining the plaintiff’s witnesses, including a statement by the IT professional who the plaintiff relied upon, who said that he never actually examined the plaintiff’s computer.

Though the defendant was clearly onto something, Master Brott was not impressed that the defendant persisted despite the plaintiff’s agreement to deal with a spoliation claim and, in particular, plaintiff counsel’s statement that the computer was gone:

The circumstances leading up to this motion are in my view, a clear example of a proceeding going astray – of not being able to see the forest through the trees. Lawyers take oaths which require them to act in a professional manner. Defence counsel urged me to ignore the evidence of solicitor Sacks because of the contradictions obtained from the plaintiff’s boyfriend and the IT specialist. I am not prepared to ignore the solicitor’s Affidavit, nor the correspondence and telephone information from plaintiff’s counsel to defence counsel advising that the computer is no longer available. Whether the computer was in fact given to the IT specialist or is corrupted or is still available cannot be established at this stage. But what is critical is that counsel has sworn that the computer is no longer available. That should be the end of it! The rest is for trial.

…

… once [the Defendants] received plaintiff’s counsel’s correspondence outlining the corruption of the computer and the further information that the whereabouts of the computer were unknown and unrecoverable, the over-zealous actions of the defendants all the while knowing that even if successful, any Order could not be effective, was inappropriate. The rules encourage parties to proceed in a fair and inexpensive fashion and to attempt to resolve their disputes.

Cerkownyk v. Ontario Place, 2009 CanLII 62065 (ON S.C.).

Case Report – B.C. Court strikes privacy breach claim brought against raiding union

On November 23rd, the British Columbia Supreme Court issued a judgment striking out a privacy breach claim brought by an incumbent union against another union engaged in a so-called membership raid.

The incumbent (the HEU) argued that the raiding union (the BCNU) breached the British Columbia Privacy Act and the British Columbia Personal Information Protection Act by misusing personal information collected from its members in executing a “high pressure campaign.” The BCNU moved to strike the claim. It argued (1) the HEU had no standing to sue on behalf of its members (whether named or not); and (2) PIPA does not support a civil cause of action.

The Court agreed with both arguments. It concluded that both the Privacy Act and PIPA grant an individual right of privacy that cannot be asserted by a union on behalf of its members: “This is a radical defect; the plaintiffs have no entitlement to bring an action based on a violation of another person’s privacy.” On whether PIPA supports a civil cause of action, it said:

PIPA provides an adequate administrative scheme. I find support for this in the provisions of PIPA generally and specifically in s. 57. Section 57 clearly shows that the Legislature considered the issue of civil claims; it only included a right for an individual to advance a claim against an organization for damages after the commissioner has made an order. This has not occurred here.

The Court also struck claims based on fraudulent misrepresentation and deceit, leaving the HEU action to proceed on the basis of interference with contractual and economic relations.

Facilities Subsector Bargaining Association v. British Columbia Nurses’ Union, 2009 BCSC 1562 (CanLII).

Case Report – IPC blesses manual processing of FOI request despite push for “e-access”

On October 29th the IPC/Ontario issued an order in what appears to be a well-litigated dispute about the access request process. It rejected a challenge to the reasonableness of a search and the reasonableness of a fee estimate that was based on the respondent municipality’s manual process of providing access.

The responding municipality’s FOI officer directed officials to conduct searches for responsive records and to print and forward responsive records. The officer then manually de-duplicated and reviewed records prior to providing access. The appellant argued that this process was unreliable and inefficient and that the municipality either should have used its IT department or third-party to process the request using automated means. The IPC deemed the municipality’s chosen process to be reasonable, though it disallowed fees related to 2.5 hours of de-duplication and organization because the municipality did not provide sufficient supporting particulars.

The IPC has, in at least one order, endorsed an “e-access” process in upholding a fee estimate for about $12,500. Though such a process is more in tune with prevailing best practices for records search and retrieval, it will also tend to result in higher costs, all of which can be transferred to an Ontario requester if a third-party service provider is used. Given the requester in this more recent case was asked to pay less than $500 to receive the benefit of the municipality’s (certainly laborious) manual efforts, one may wonder if she really wanted what she asked for.

MO-2472, 2009 CanLII 63119 (ON I.P.C.).

Case Report – Alberta Court of Appeal case discusses qualified privilege and threat reports

Chohan v. Cadsky was decided by the Alberta Court of Appeal on October 16th. The court found that three individuals acted within the scope of a qualified privilege in reporting expressions of concern about a colleague’s mental health and were therefore not liable for defaming the colleague. The Court summarized its finding in the following paragraph:

We dismiss the appeals against Dr. Ohlhauser, Dr. Baker, Dr. Gardener and Capital Health, as we are not persuaded that the trial judge made any reversible error in dismissing those actions. We will address the arguments separately, but commence with the following summary. Dr. Ohlhauser, Dr. Baker, and Dr. Gardener each testified that as a result of expressions of concern from others and/or their personal observations, each had an honest concern about the health of a colleague, and believed that, as a medical professional, he had a duty to either investigate this concern, or inform someone who was in a position to investigate. Each contacted the person he believed appropriate to provide assistance or investigate to ensure that there was no cause for concern. There is no evidence that any one of them contacted individuals who had no interest in knowing and no responsibility to receive the communication because of the position he held in Capital Health. Dr. Block, Dr. Hibbert and Dr. Gardener, the three persons to whom communications were made, each had a responsibility for ensuring that colleagues within their service did not have health issues that might affect patient care or their own well being. These three defendants were not engaged in idle gossip or general discussion in making these communications. In our view, the defence of qualified privilege was designed for exactly such a situation.

The principled aspect of this statement is not surprising, and the application of the qualified privilege defence will always turn on the specific facts. However, given that bona fide reports of potential threats should be encouraged as part of managing workplace (and campus) violence, the case is worth a note.

Chohan v. Cadsky, 2009 ABCA 334.

Workplace Privacy Presentation at the HRPA 20X Annual Conference and Trade Show

On January 27, 2010 I’ll be giving a presentation entitled “Everything You need to Know About Workplace Privacy” at the HRPA’s 20X Annual Conference and Trade Show.

I designed the presentation today around the following topics:

  • Employee privacy rights – the patchwork quilt
  • How to run an internet background check
  • Why and how your acceptable use policy needs to change
  • Yes, you can transfer that data to the U.S., but…
  • How to manage the risk of communicable diseases in the workplace

I’m looking forward to the opportunity to touch on these hot issues and have also left lots of time for questions. If you’re an HR professional who’s attending the conference please consider joining my session.

Case Report – Fed Court comments on jurisdiction to receive ATIA applications

On October 13th, the Federal Court had an opportunity to comment on its jurisdiction to receive applications for review under section 41 of the Access to Information Act. It held that the Court’s jurisdiction is based on a “genuine and continuing claim of refusal of access.” This supported a finding that it had no jurisdiction to (a) hear an application about a series of requests that were deemed to be refused but, through a series of events, answered by the time the application was filed and (b) reprimand the responding institution for delay.

Statham v. Canadian Broadcasting Corp., 2009 FC 1028.

Case Report – Court denies ex parte motion to preserve Facebook

On October 29th, Price J. of the Ontario Superior Court of justice denied a motion for an ex parte order for preservation of a plaintiff’s Facebook.

The motion was brought by a defendant to a personal injury claim. It brought its motion ex parte on the basis that the plaintiff would be likely to destroy evidence if notified. It therefore had to meet the three-part test from R.J.R.-MacDonald in order to receive interim relief pending a return to court to deal with the matter of production. The Defendant brought its motion on the strength of several photos it had obtained from non-password protected Facebook pages. These showed the plaintiff  after the date of the accident doing things that were arguably consistent with her claim for damages in respect of a significantly curtailed lifestyle – i.e. the pictures showed her sitting and reclining on a floor. Neither these photographs nor any other records from the plaintiff’s Facebook were disclosed in her Affidavit of Documents.

The Court held that the defendant had not adduced any evidence that allowed it to conclude that the plaintiff’s Facebook was likely to contain relevant information and that it would not infer from the nature of the Facebook service that the plaintiff’s Facebook was likely to contain such information. On the inference, Price J.’s decision ought to be viewed to be in conflict with the Court’s prior decisions in Leduc v. Roman and Wice v. Dominion General Insurance Company of Canada. Price J. says:

I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintff’s account in the present case do not appear, on their face, to be relevant.

Price J. did grant leave to cross-examine the plaintiff on her Affidavit of Documents. He forgave the defendant for not doing so at the plaintiff’s examination for discovery “because Facebook is a relatively recent phenomenon” but specified that the defendant would pay the costs of the examination should it prove fruitless.

Finally, in addressing the balance of convenience, Price J. made the following statement about the balance of convenience:

The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends.” She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.

The concept (reflected in this paragraph) that an expectation of privacy can be maintained despite a limited disclosure of information is supported by privacy advocates, but is not often accepted by courts.

Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (S.C.J.).

Information Roundup – 1 November 2009

Here are some links you may find interesting!

You may have noticed that I’ve slowed down posting. This is not because I’ve tired of the blog, but because of my new commitment to Slaw.ca and my new expanded family. Both new commitments are very rewarding, especially new life with Hugs and Pens (below). Please keep coming back.

See ya!

Dan

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