Category: Uncategorized

Case Report – “Crown brief” production judgement by the BCCA

Yesterday, the British Columbia Court of Appeal allowed an appeal of an order that required the Vancouver Police Department to produce records that had become part of the Crown’s brief in a ongoing prosecution.

The plaintiff is the father of a man who was struck and killed by a motor vehicle in a hit and run. The defendant is the man charged criminally for the hit and run. The defendant’s criminal trial has been adjourned and will re-commence later this year. In the civil action, he did not produce to the plaintiff the materials he received from the Crown in its disclosure. This led the plaintiff to apply for third-party production from the police. The Crown then objected, claiming litigation privilege and public interest immunity.

The Supreme Court ordered production last December. It ordered production of records as a class (the class of all records produced in the criminal matter) from the Vancouver Police Department subject to an objection by the Crown to the production of any specific documents. The Crown objected to this process and argued for a process more like that endorsed by the Ontario Court of Appeal in D.P. v. Wagg – that is, one in which the protected status of the documents is presumed subject to an application to be brought by the party seeking production.

The Court of Appeal accepted the Crown’s argument, allowed the appeal and endorsed a rather complex form of order that contemplates a police inspection, a police decision on production and privilege, recovery of costs incurred by the police and court supervision of the police decision on production and privilege.

See here for Erik Magraken’s summary of the case.

Wong v. Antunes, 2009 BCCA 278.

Case Report – Federal Court of Appeal confirms ministerial offices beyond the scope of ATIA requests

In an oral judgement issue on May 27th, the Federal Court of Appeal dismissed the Information Commissioner of Canada’s appeal of Justice Kelen’s June 2008 finding that the Prime Minister’s Office and other ministerial offices are not “institutions” whose records are subject to the Access to Information Act.

Justice Kelen had also found that some information in former Prime Minister Chretien’s agenda book in the control of the Privy Council Office and the Royal Canadian Mounted Police was not exempt from public access as his personal information. On May 29th, the Federal Court of Appeal allowed an RCMP appeal of this finding. The Court of Appeal held the Prime Minister is not an officer of the Privy Council Office whose job-related information excluded from the definition of personal information by section 3(j) of the ATIA.

Both of the Court of Appeal judgements turn on a finding that the ATIA was drafted on the basis of a well understood convention that the Prime Minister’s Office is separate from the Privy Council Office and the offices of Minsters are seaprate from the departmetns over which ministers preside.

My detailed summary of Justice Kelen’s judgement is here.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2009 FCA 175.

Canada (Royal Canadian Mounted Police) v. Canada (Information Commissioner), 2009 FCA 181.


CAISJA presentation on student appeals and related higher education student affairs issues

I had a great time this morning at pre-conference workshop for the annual Canadian Association of College and University Student Services conference. The workshop was organized by the new CACUSS academic integrity and student judicial affairs division – CAISJA. I love addressing professionals working in the higher education sector because attendees are always very knowledgeable and engaged. Today was no exception!

Here is a copy of my slides, which were just to put a little structured content into three hours of discussion moderated by my CAISJA hosts.

As promised to attendees, here is the Hicks Morley paper (written in 2005) on student appeals and here are some citations to recent and relevant case law.

  • Cotton v. College of Nurses of Ontario – On administrative fairness and mandatory medical assessments. See here for my case summary.
  • Zeliony v. Red River College – On hearing transcripts and the requirement to give reasons. The College’s reliance on unsworn witness statements (in part because witnesses said they were afraid to testify) is an important issue that is not addressed head-on in this award.
  • Lerew v. St. Lawrence College – On hearing transcripts and the requirement to give reasons.
  • F.H. v. McDougall – The Supreme Court of Canada on the existence of only one standard of proof in civil cases – the balance of probabilities standard.

Though it is technically neither an academic integrity nor a student judicial affairs issue, we did get into discussion on threat assessments, student privacy and non-disciplinary suspensions. Some materials on this topic are posted here (my CAUBO March 2008 presentation), here (comments made after the Kajouji case) and here (link to good podcast).

Thanks again to my CAISJA hosts. I hope this material is helpful and, for those who attended, look forward to keeping in touch!

Case Report – Raitt “lost recorder” judgement published

The Nova Scotia Supreme Court has published Moir J.’s decision on the lost digital recorder containing embarrassing comments made by Minister of Natural Resources Lisa Raitt. I was quoted by the National Post here, but really didn’t have much to say at the time. This is no criticism of the conclusion embodied in Moir J’s cursory (oral) judgement, but now that I’ve read it I confess to still having more questions than answers!

The scenario is made for a law school exam:

  • Conversation between MacDonnell and Raitt, Raitt a public figure
  • Recording made unknowingly and in presence of limousine driver
  • Recorder misplaced by MacDonnell in a bathroom
  • Recorder found and passed to reporter
  • Reporter contacts MacDonnell to advise of finding
  • MacDonnell says she’ll pick the recorder up, but doesn’t
  • Time passes
  • MacDonnell misplaces Ministry’s confidential documents and resigns
  • Raitt comes under scrutiny
  • Reporter listens to recording in the name of the public interest
  • Reporter gives notice of intent to publish recording

Ms. MacDonnell relied on a privacy and property based claim. Moir J. held that she had not established a case sufficient to restrain publication. Here is the core of his oral judgement:

I agree with the submission for the Herald that the recorded conversation was not private because some or all of it was heard by a department driver…

Here is where I see the restriction on prior restraint having some place in laws of invasion of privacy, if such a tort is to emerge. It is wrong to deprive the press, and the public it serves, of remarks made privately, but not confidentially in the sense of trade secrets or privileged communications, after those remarks became available because of poor record keeping or management.

Bailment and conversion are torts applicable to personal property rights. The digital recorder was personal property. There is no bailment, and can be no conversion, of pure information. Information is protected as intellectual property.

Here are my questions. Wasn’t the driver bound to secrecy? Was this fatal to the expectation of privacy claim? When should poor record keeping constitute abandonment? How critical was Ms. MacDonnell’s failure to pick up the recorder as planned? Did she tell the reporter not to listen? Would that have made a difference? Did the information at issue and the public’s interest in receiving it weigh in the balance? If so, to what extent. You can start to see how the parameters of a privacy claim are very complex.

Two other points. One, the judgement creates a hierarchy of concepts: privacy seems less important than privilege and trade secret protection. I recently blogged about the Daniel Potter case here. It does the same thing. Two, whether the property torts can be used to re-gain control of information is a big issue for employers. I’ve blogged about it here.

MacDonnell v. Halifax Herald Ltd., 2009 NSSC 187.

OBA’s “Hot Issues” seminar and employee computer monitoring

I delivered a presentation at the OBA’s “Hot Issues in Privacy Law” seminar this morning called “Employee Computer Monitoring: Wither the most certain management right of all?” Here are the slides:

I prepared a paper for the presentation that I’m trying to re-purpose, and am going to hold off on publishing it for now. I hope I can make it available in one form or another soon. [Addendum: Here’s a copy of my speaking notes, which contain some of the key ideas.]

I enjoyed attending the entire session. The issues kept coming back to data security, which makes sense given the costs and risks of data breaches. Coincidentally, I had a call right after I returned to the office on a breach. For what it’s worth, I don’t find a discussion of costs and risks very helpful in guiding clients through the decision making exercise. Instead, I guide them to make decisions with a view to writing the story that they can cling to however all the external (and uncontrollable) factors play out. But even if I play my role to its best, it still can leave clients with some agonizing decisions. So if there’s one thing I can echo from today’s seminar, investing in prevention is a great idea. Data breaches suck!

You can read what are essentially a copy of my notes for the morning here. Remember to read from the bottom up.

Enjoy!

Information Roundup – 31 May 2009

Here are some tweets of substance in the last week.

This is coming to you from a Casey’s in Sault Ste. Marie. I’ve been doing a heap of travelling lately – all north-south. I’m working my way through the Casey’s menu one Coors Light at a time! No complaints, because I’m a Casey’s kind of guy. It’s also been nice to get familiar with the north, the highlight being a drive from Timmins to Kirkland Lake for a hearing, then onto North Bay for another. I miss the family like crazy, but slowly but surely am filling in my mental picture of our huge province and am doing rewarding work with good people along the way.

Hope the tweets are of interest!

Dan

Case Report – Ontario IPC says personal e-mails in control of City

People are abuzz about this April 9th order of the Information and Privacy Commissioner/Ontario in which Adjudicator Corban held that e-mails received by a solicitor employed by the City of Ottawa in his personal capacity were under the custody or control of the City and subject to public access.

The IPC rejected the City’s argument, which rested on a by-law that deemed personal e-mails to be transitory and subject to immediate disposal and the permission it had granted employees to use its computer systems for incidental personal use. The IPC said:

I accept that the City has no objection to the “incidental personal use of City assets such as computers” and the creation or receipt of personal e-mails by its employees. However, I am not persuaded that by allowing for personal usage and by addressing the disposal of such e-mails in its Records Retention By-law the City has given up its authority over personal e-mails stored on City servers…

In my view, the fact that the City has explicitly stated that employees are permitted to use the e-mail system for incidental personal use but that personal use of City computers may be monitored for unauthorized use by the City’s Information and Technology staff, supports a conclusion that the City does have the authority to regulate the treatment of those records even if it chooses not to do so.

This order is reminiscent of (though far less sexy than) the Bobbie Malmer case out of Kentucky. It is also consistent with the traditional view on control of information stored on corporate computer systems. Though the application of our commercial sector privacy legislation, PIPEDA, does not hinge on custody or control, the Federal Court recently found that personal e-mails were not subject to PIPEDA in Johnson v. Bell Canada.

I’ll be speaking about employer access to personal e-mails at a couple of upcoming seminars, including the OBA’s Hot Topics in Privacy Law. Access is a different issue than the control issue (an idea touched upon in this order), but is related and also bound up in developing expectations of privacy based on personal use. An extremely engaging issue right now!

[Addendum. Query whether this outcome is consistent with the purpose of freedom of information legislation? Should the concept of “control” be significantly narrower for the purposes of triggering a right of access than in other circumstances (e.g. for litigation or regulatory production requirements)?]

Order MO-2408 (9 April 2009, IPC/Ontario).

Case Report – Ont. C.A. allows criminal records check appeal about disclosure of withdrawn charges

Yesterday, the Ontario Court of Appeal held that a police service lawfully disclosed information about an individual’s withdrawn criminal charges in the course of administering background checks.

The applicant, a social services worker, was charged with four counts of sexual assault and four counts of sexual exploitation. At trial, the charges were withdrawn and the applicant entered a peace bond. The applicant was later denied a license for a group home, denied employment and terminated from employment, assumingly based on information provided after conducting a vulnerable persons search. In response, he brought a successful application for an order to have information about the withdrawn charges expunged from police records.

The Court of Appeal held that the applications judge erred to the extent that he found that the applicant did not give specific consent to the disclosure of the withdrawn charges. The Court held that consent to disclose this information could be inferred in the circumstances even though the written consent form did not expressly refer to withdrawn charges. This essential finding is illustrative but fact-based. More broadly, however, the Court also found that the consent was not invalid because it was coercive. It said the following about the fairness of background checks:

The fact that a person effectively must consent to a Vulnerable Persons Search in order to apply for certain types of jobs may be perceived as coercive and, in that way, possibly unfair. In regards to this alleged coercion, the affidavit evidence in this case indicates that these searches are necessary in order to give prospective employers involved with vulnerable persons all potentially relevant information about potential employees, within the bounds of the permissible disclosure of personal information under MFIPPA. Also, in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.

The Court also rejected arguments that the disclosure breached the applicant’s rights under sections 7 and 8 of the Charter.

This highlights the vulnerability of individuals in Ontario who are charged of criminal offences but not convicted given the recent finding by the Human Rights Tribunal of Ontario that the “record of offences” protected ground does not protect persons only charged with offences. See de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII). [Addendum: A contact has told me the complainant in de Pelham has stated his intent to file an application for judicial review.]

Tadros v. Peel (Police Service), 2009 ONCA 442.

Case Report – Ont. C.A. affirms arbitration board’s principled attack on random drug testing

Yesterday the Ontario Court of Appeal affirmed a December 2006 award by an arbitration board chaired by Michel Picher in which he held that Imperial Oil breached its collective agreement with Local 900 of the CEP by implementing random drug testing by buccal swab.

The Court of Appeal’s judgement turns on the standard of review rather than on principle. The Court did not feel it necessary to reconcile the majority’s strong stance against random drug testing with its own affirmation of random alcohol testing in the year 2000 Entrop decision. It simply noted that Mr. Picher had distinguished Entrop because Imperial Oil’s testing method took two days to return a test result. The Court said:

Moreover, the Majority was alert to Imperial’s contention that its random oral fluid drug testing was analogous to the random alcohol breathalyser testing approved in Entrop. As it was entitled to do, the Majority considered, and rejected, this contention on the basis of the evidence before it that oral fluid drug testing in fact did not permit immediate detection of drug impairment on-the-job (paras. 64 and 112-113).

While this might appear to still leave employers with room for implementing random drug testing based on a method that does address current impairment, Mr. Picher did make a very principled attack on random drug testing, suggesting it was unreasonable unless an employer is able to adduce evidence of “extreme circumstances” such as an “out-of-control drug culture.” Mr. Picher’s award does not bind other arbitrators who are charged with interpreting other collective agreements, but it is authoritative, particularly after yesterday’s affirmation.

For my earlier, more comprehensive summary of the case, see here.

Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada , Local 900, 2009 ONCA 420.

Information Roundup – 21 May 2009

Here are some recent tweets of note!

I have a big case starting tomorrow, so why did I post two blog entries today?! I think its because I’m ready and this is a good way to blow off some nervous energy. I also owe an overdue thanks to my KM colleague Pamela Hillen. She’s been passing on some great cases that I’ve been able to blog about. Thanks Pam!

See ya!

Dan