BCSC denies access to total legal costs spent on ongoing litigation

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

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

Today, is a right-thinking judge (in a non-criminal case) likely to exclude evidence obtained in breach of privacy?
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

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

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

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!

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

Court affirms IPC decision on doctor payments

On June 30th, the Divisional Court affirmed an Information and Privacy Commissioner/Ontario decision that the amounts billed to OHIP by top billing doctors did not constitute the doctors’ personal information.

The Court’s decision is a standard of review decision – i.e., one that accepts the IPC’s decision as reasonable. Notably, the Court was influenced by an argument made by the doctors that (pre-expense) billing amounts do not fairly represent personal income yet could be misconstrued as such by the public. The answer to such arguments is an easy one for most FOI adjudicators and courts: provide an explanation to the public if you think you’ll be misunderstood. The Court didn’t say that in this case, but noted that the doctors’ argument was supportive of the IPC decision that their billing amounts were not revealing enough to be personal information.

Otherwise, the Court made short work of the doctors’ attempts to impugn the IPC’s reasoning and an argument that the IPC procedure gave rise to a reasonable apprehension of bias.

Ontario Medical Association v Ontario (Information and Privacy Commissioner), 2017 ONSC 4090 (CanLII).

Two presentations all about information

Here are two recent presentations that may be relevant to you – one on finding internet evidence that I presented last Saturday at our firm’s PD day and another from a few days earlier on privacy, data security and CASL compliance at financial services firms. If you work in management and something catches your eye that raises questions do get in touch.

Why your author has been quiet of late

I’m not one to apologize for not blogging enough! This blog has been a labour of love since 1997 and has always been about my own need for exploration, learning and expression.

I’m happy, though, to explain that I’ve been busy with practice and also side tracked by some big adventures with my maturing family – most involving the ocean and a paddleboard or surfboard. Here’s a video from last month’s adventure – one involving a 22 mile paddle (prone) to Catalina Island (off of LA), running the Catalina Marathon the next day and then paddling 22 miles back. I’ve never had a nature experience quite like the one we had paddling over (as you’ll see). With all the craziness in the world there still is plenty for which to be grateful.

Best regards and thank you for reading.

Dan

Two recent privacy and cyber presentations

It’s been a busy last couple months on a number of fronts. Here are a couple of presentations I’ve delivered recently – a privacy updated delivered to the Canadian Association of University Solicitors in beautiful Cape Breton, NS (on outsourcing to the cloud and liability for data loss and misuse) and another to the Ontario Association of Children’s Aid Societies (on the claims context for data loss claims, incident prevention and incident response). Happy thanks giving everyone!