Category: Uncategorized

Case Report – Court orders identity of Gmail user to be disclosed… good discussion of balancing of interests

On September 9th, the Ontario Superior Court of Justice ordered Bell and Rogers to identify an individual who used a gmail account to communicate allegedly defamatory statements about York University and its president. The case is notable for two points. First, it contains a relatively detailed discussion of the balancing of interests factor and the privacy interests of the anonymous poster. Strathy J. considered that both Bell and Rogers had privacy policies and terms of service that lowered the individual’s expectation of privacy. Second, Strathy J. held that, in some circumstances, an individual whose identity may be disclosed should be given notice of the proceeding and an opportunity to participate. He did not elaborate, but held that York’s failure to give notice in this case did not tip the balance against making an order.

York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.).

Information Roundup – 6 September 2009

Here are some links within the domain that you may appreciate.

I’ve started regular blogging at Slaw.ca and am having a great time. It’s a chance to stretch out a little and be creative. Here’s a link to an archive of my posts. Otherwise I’m just carrying on, happy about our expanded family and happy that it’s September, hands down the best month of the year. It also means our fall vacation is coming up. I did manage a brilliant three hour paddle today outside of Hanlan’s Point and right underneath the Canadian International Air Show. But despite the paddle and a fun Hurricane Bill session a couple weeks ago, I need a real surf man. See ya!

Case Report – Arbitrator Kaplan follows Imperial Oil case… says no to random alcohol testing

On August 27th, Arbitrator Bill Kaplan held that an employer breached its collective agreement by implementing random alcohol testing for safety-sensitive positions. The employer attempted to argue that Arbitrator Michel Picher’s strong pronouncement against random testing in his December 2006 Imperial Oil case was wrongly decided though it was upheld on a review for patent unreasonableness by the Ontario Court of Appeal in May. Mr. Kaplan disagreed:

In my view, the Court of Appeal made clear that it accepted Arbitrator Picher’s analysis and conclusions based as they were on the facts, the language of the collective agreement and the synthesis of the arbitral authorities all set out within a context of balancing of interests. Even if Arbitrator Picher’s conclusions were not judicially endorsed, having carefully reviewed all of the authorities relied on by counsel, I find Imperial Oil persuasive and almost on all fours with the facts of this case.

The Picher decision suggests that a general policy of unnanounced random alcohol or drug testing will only be justifiable if there is evidence of a significant problem in controlling the impact of drug and alcohol use on the workplace. In this case, Mr. Kaplan said, “There is no evidence of a problem to be adressed.”

Petro-Canada Lubricants Centre (Mississauga) v. CEP, Local 593, 2009 CanLII 44405 (ON L.A.).

Case Report – Federal appeal court says FOI requester’s identity matters

The Federal Court of Appeal has issued a unque FOI judgement that turned on the identity of the requester.

On August 12th, the Court held that records supplied to the Minister of Indian Affairs and Northern Development by an Indian band were not exempt under the Access to Information Act “confidential information supplied to government” exemption. Though the Court accepted the records were confidential, it held they were not exempt vis-a-vis the requster because she had an independent right to the records as a band member based on an Indian Act regulation. The requester filed an access request to the Minister because the band imposed a strict confidentiality condition on providing access. The Court held the condition was unlawful and granted access under the ATIA via the Minister.

In reasoning for the Court, Evans J.A. said:

Since the identity of a requester under the AIA is normally confidential, it may be argued that the identity of a particular requester cannot determine whether information is exempt from disclosure under paragraph 20(1)(b). Of course, if the identity of the requester is not disclosed, it will generally not be possible to establish that otherwise confidential documents are not confidential vas-à-vis that person.

In this case, however, Ms Poitras consented to the disclosure to the Band of her identity, in order to establish her status as a Band member. In these very unusual circumstances, and consistently with a broad interpretation of the AIA and a narrow interpretation of the exceptions, I see no reason why the identity of the requester cannot be taken into account to determine whether the information was confidential as against her.

Canada (Indian Affairs and Northern Development) v. Sawridge First Nation, 2009 FCA 245 (CanLII).

Case Report – Ont. C.A. articulates soft necessity requirement for pre-action discovery

On August 21st, the Ontario Court of Appeal clarified the requirements for pre-action discovery and affirmed that an applicant for pre-action discovery must establish that the discovery sought is “necessary” to the process of obtaining justice for some wrongdoing.

Norwich Pharmacal orders, also called “equitable bills of discovery,” enable a person to conduct pre-action discovery against a third-party who is likely to have important information about a bona fide wrongdoing. The development of the Canadian standard for these and similar third-party orders is of high relevance today because they are a potential means of investigating and pursuing claims based on anonymous internet use.

The dispute in this case arose because the applicant had substantial evidence supporting actions for fraud against two known potential parties, all of which was submitted in support of its successful action for pre-action discovery of other persons. On appeal, the strongest position against the order taken by one of the respondents was that it ought not to have been granted because the information sought was not necessary to plead.

In allowing the appeal and setting aside the order, The Court of Appeal held that necessity is a requirement for Norwich order but rejected a necessity to plead requirement as being too strict. It said:

On my reading of the authorities in Canada and England, it is unclear whether the requirement of a showing of necessity for pre-action discovery properly forms part of the court’s inquiry as to whether the third party from whom discovery is sought is the only practicable source of the information available (as held in Mitsui at para. 24) or as to whether the interests of justice favour disclosure or non-disclosure (as argued by FNG before this court). However, there is no suggestion in the established jurisprudence that it is a stand-alone requirement for the granting of a Norwich order. Nor do I regard it as such.

In my opinion, the precise placement of the necessity requirement in the inventory of factors to be considered on a Norwich application is of little moment. The important point is that a Norwich order is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. It is therefore incumbent on the applicant for a Norwich order to demonstrate that the discovery sought is required to permit a prospective action to proceed, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief…

While an applicant for Norwich relief must establish that the discovery sought is needed for a legitimate objective, this requirement may be satisfied in various ways. The information sought may be needed to obtain the identity of a wrongdoer (as in Norwich Pharmacal), to evaluate whether a cause of action exists (as in P. v. T.), to plead a known cause of action, to trace assets (as in Bankers Trust and Leahy), or to preserve evidence or property (as in Leahy). The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy.

The applicant had asserted that pre-action discovery would allow it to determine the circumstances of wrongdoing and assess its legal remedies. Though the Court of Appeal implicitly accepted these purposes as legitimate, it held that the applicant did not need pre-action discovery given it knew “the nature, timing and apparent purposes of the frauds” as well as the identify of the suspected wrongdoers.

I’ve recently been enjoying Antonin Pribetic’s excellent Trial Warrior Blog. Antonin has two posts on this case, one a detailed case summary and another that discusses how Norwich orders may be used to advance defamation claims against anonymous internet users.

GEA Group AG v. Ventra Group Co., 2009 ONCA 619.

Information Roundup – 28 August 2009

Here are some links to materials within the domain that you might find interesting (in chronological order):

I’m heading to Halifax for with Hugo this weekend. It was meant to be a father-son construction check and surf trip. I had visions of introducing Hugo to shin-high surf for the first time (now two and a half) out at Martinique. Turns out Bill is coming and all my Halifax friends are frothing about the pending “swell of a decade.” I’m trying hard to keep my expectations at zero, ’cause between the limited length of our trip, Hugo supervision duties and the short window of opportunity associated with Halifax hurricane swell, it ain’t going to happen for me. (Monday looks like the choice day, and the track below looks downright disturbing!)

Should still be a good father-son adventure though – Wanna go on another surf check Hugs?” – and I cross my fingers that things will remain safe. I’ll try to post pics over at Twitter if you’re interested.

See ya!

Dan

at200903

Case Report – BCCA affirms that implied undertaking terminates after evidence adduced

On August 13th, the British Columbia Court of Appeal declared that defendants to a defamation action were not restricted from “publicizing” documents adduced as evidence at trial by the plaintiff.

In March 2008 in Juman v. Doucette, the Supreme Court of Canada made clear that a litigant’s implied undertaking of confidentiality terminates once information is adduced as evidence in open court. Even though the defendants’ motion for a permissive declaration was heard after Juman, the motions judge was sympathetic to the plaintiff’s confidentiality claim. The motions judge stressed that the law was not settled at the time of trial and recognized that the plaintiff had a genuine and ongoing interest in keeping its information confidential even though it had not asked for a protective order at trial.

The Court of Appeal held that the motions judge erred and granted a declaration that the defendants were released from their confidentiality undertaking vis-a-vis the documents in question. It held that, ambiguities in the law aside, “courts do not change the law but declare it.” It also held that the policy reasons favouring a continuing undertaking could not possibly apply given the plaintiff had entered the documents into evidence itself. According to the Court of Appeal, the plaintiff should have asked for a protective order.

International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2009 BCCA 355.

Information Roundup – 2 August 2009

Here are some recent links from the domain:

Wednesday will be the second anniversary of the day I started this blog. In two years I’ve made 374 posts. I’ll keep the total visit stat private, but will tell you that this is not a high traffic blog, something I attribute to the technical nature of the content that I’m wedded to. All About Information’s highest traffic day was 283 unique visitors on May 13th of this year, where a link from Michael Geist on the Cole case gave me a good spike.

I’ve been torturing myself over this decision for the last couple of weeks, but I’ve decided to set the blog to terminate (at least as you know it) at the end of February 2010. I’m having great fun blogging still, but am a believer in forced change. If I keep going indefinitely I’m bound to get bored (or boring), so need to make a commitment to shake things up. Maybe I’ll feed this content into a text? Or keep blogging on information management and privacy in a new format? Maybe I’ll use different social media to stay engaged online and finally figure out how to use LinkedIn? I don’t really know, but if you have any ideas please make a suggestion!

One thing I’ll certainly do is try and rediscover my athletic self. I’ve picked a February end date because March is really the start of the paddling season here, with some beautiful water. No commitments yet, but if things go as planned I’ll do some good crossings later in the year.

Hope you’ve enjoyed and keep coming back for the next half year!

Dan

Case Report – Alberta OIPC blesses picket line videotaping for limited purposes

On March 30th the Alberta Office of the Information and Privacy Commissioner held that a union did not need consent to continuously video tape a picket line so it could capture any evidence of picket line misconduct. 

The OIPC held that the union could rely on the Alberta PIPA “investigations exception” to the rule against collecting personal information without consent. The exception applies when a collection, use or disclosure of personal information is “reasonable for the purposes of an investigation or legal proceeding.” The OIPC held that this language is engaged when misconduct is “likely to occur.” It explained:

I accept the broadest of the possible interpretations of the provision. In my view the inclusion of the phrase “reasonable for the purpose” takes the place of any temporal restriction, allowing information to be collected in the appropriate circumstances even though an investigation or legal proceeding may never take place in fact. It strikes me as prudent and therefore reasonable to collect information which could avoid contests, in the context of an investigation or legal proceeding that is reasonably likely to arise over contentious facts which would be hard to establish through witness testimony. As there was a reasonable likelihood of incidents on the picket line that could lead to a police investigation and law enforcement proceedings, and as a Labour Relations Board or court proceeding relative to the conduct of the picketing was reasonably forseeable, an investigation or legal proceeding was reasonably likely to arise in the circumstances of the present case.

This finding – that the investigations exception can apply to surveillance – is of significance that goes beyond the picket line scenario being considered. The OIPC’s treatment of the picket line scenario itself is of less significance but nonethless interesting.

Picketers often employ video cameras and still cameras, a practice thought by some to be an intimidation tactic. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and the union admitted to several suspect purposes, including dissuading people from crossing the picket line and using humour to support picket line morale. The OIPC did not draw a negative inference from this evidence and accepted that the union’s asserted investigative purpose for collecting images was genuine. Since the union had a single genuine purpose for collecting and using the images, the OIPC explained, it violated neither the consent requirement in the Act nor the reasonable purposes requirement of the Act:

I note finally that the result would be the same even if the Union’s primary purpose was one relative to which the Act gives no authority, and the authorized purpose was relatively a very minor one, as long as the latter was genuine. If I thought the Union was fabricating the authorized purpose to try to validate its collection of information, and that its only true purpose or purposes was other than the authorized one asserted in its submission, I would declare that the collection was in contravention of the Act (or order cessation if collection were continuing) even though the Act authorized collection of the same kind of information for a purpose that the Union did not genuinely have. In this case I believe that the gathering of evidence for the purpose of a possible investigation or legal proceeding was one of the reasons the Union was collecting information through video recordings and photos. Thus it is sufficient to declare that the video recording and photographing was in contravention of the Act (in the absence of consent) only insofar as it was for any of the other purposes.

Despite this limited blessing, the OIPC found that the union nonetheless violated the Act by collecting, using and disclosing images for purposes other than its investigative purpose and, specifically, by taking still photograps of individuals (which did not reveal any misconduct) and by using pictures of a vice-president of the employer in its posters and newsletters. The OIPC also held that the union failed to give notice of its investigative purpose as required by the Act.

Order P2008-008 (30 March 2009).