Category: Uncategorized

Case Report – Arbitrator dismisses faculty association challenge to e-mail outsourcing

On May 11th, Arbitrator Joseph Carrier dismissed a grievance that claimed a university violated faculty members’ right to privacy by outsourcing its e-mail system to Google.

The association relied on a collective agreement provision that required the university to provide a “computer connection” and another by which the university agreed, “that members have the right to privacy in their personal and professional communications and files, whether on paper or in electronic form.”

Mr. Carrier held that the promise to provide a “computer connection” was not a promise to provide members with e-mail service. He also held that, having provided e-mail service, the university did not breach its privacy-related undertaking by outsourcing to Google. His conclusion on the privacy claim rested on a finding that e-mail communications are inherently insecure. He said:

It is doubtful, and, indeed, there was no evidence offered to demonstrate that such comprehensive e-mail privacy is technologically achievable. It is beyond credulity that the University or indeed the faculty would have intended such a broad and impractical meaning. How could the University reasonably fulfil such an obligation and, for instance, ensure that no third party would seek out or otherwise gain access to a faculty member’s personal files let alone his or her professional communications? It is my view that the provision as worded has a much narrower meaning. It is not an undertaking to protect members’ privacy from all manner of intrusion by third parties; rather, it is an acknowledgement that those rights exist and, at best, an undertaking by the University itself not to subvert or undermine those rights. If it was intended as an absolute guaranty of privacy from all sources, the language used ought to have been much clearer than exists in this provision. It would have to say, for instance, “the University warrants that it will protect the e-mail privacy of faculty from all manner of surveillance, intrusion and/or interception”. Indeed, as Mr. Bickford argued, privacy rights insofar as they exist in law are never absolute. Canadian courts may and do endorse subpoenas which probe into confidential information held by, for instance, banks and similar institutions. It would be surprising if the University could even begin to insulate its faculty from such intrusion.

Professors Schulhofer and Geist gave expert evidence in the matter.

Lakehead University (Board of Governors) v. Lakehead University Faculty Association, 2009 CanLII 24632 (ON L.A.)

Case Report – NSCA opines on meaning of “educational history” in FOI law

On May 14th, the Nova Scotia Court of Appeal affirmed a chambers judge’s finding that a list of names of over 4,000 certified electricians was not exempt from public access. In doing so, it held that the list’s disclosure was not presumed to be an unreasonable invasion of privacy as a disclosure of information that “relates to educational history,” stating:

In order to be found to be employment or educational history, the information must do more than simply have some sort of link to employment or education. The words “employment and educational” are not nouns, but adjectives which describe the word “history”. The presumption against disclosure will only arise if the information relates to “employment or educational history” in the fuller sense set out in the jurisprudence.

Here the requested information consisted of the list of certified construction electricians. The only particulars on that list were the names of individuals with certificates of qualification or of apprenticeship… The principles developed in the jurisprudence relating to employment history would also apply to educational history. Here, no information as to an individual’s educational background, such as schools attended, courses, discipline, and assessments can be gleaned from the list of names.

The Court relied on the Supreme Court of Canada’s 2003 decision in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police).

A.B. v. Griffiths, 2009 NSCA 48.

Case Report – BCCA sets aside Anton Piller order because findings in prior order were inadmissible

On May 7th, the British Columbia Court of Appeal set aside an Anton Piller order obtained by the Crown against acquitted Air India bombing defendant Ripudaman Singh Malik and his family members.

The Court filed an action against Malik and family members to recover monies paid to support his defence in the Air India trial. The monies were paid pursuant to an agreement that was premised on an agreement by Mr. Malik to transfer his assets to the Crown. When he did not make the transfer, the Crown refused to continue funding Mr. Malik’s defence. In response, Mr. Malik brought a “Rowbotham” application for a state-funded defence. He was unsuccessful, but reached a subsequent agreement with the Crown and was eventually acquitted.

The Crown sued for repayment of advances made under the first agreement. It claimed it entered the agreement based on misrepresentations and claimed that Mr. Malik and his family members conspired to hide assets and hinder the Crown’s collection of monies owed. The Crown obtained a Mareva injunction and Anton Piller by submitting and relying heavily upon the judge’s finding in the Rowbotham application.

The Court of Appeal held that the Crown had not established a strong prima facie case of fraud nor had it shown a real possibility the defendants would destroy any incriminating documents that may be in their possession because only some of the judge’s findings from the Rowbotham application were admissible. The Court characterized findings in the Rowbotham application as follows:

The conclusion reached by Stromberg-Stein J. was that Mr. Malik had the means to pay for, or make a contribution towards, his defence costs. Her conclusion was based on her finding that Mr. Malik could look to the income and assets of his family, as well as his own assets, because the assets of Mr. Malik and his family were fused. In the alternative, Stromberg-Stein J. would have decided the application on the issue that Mr. Malik had disentitled himself to relief because he had not prioritized his legal expenses over other expenses.

The Court held that Mr. Malik could not be bound by the application judge’s alternative finding in a subsequent proceeding because it was a collateral finding. It explained that the doctrines of issue estoppel and abuse of process, “will not prevent a person from re-litigating findings that were collaterally made by the court and were not fundamental to the decision in the earlier proceeding.”

Also notable is the Court’s finding that the jurisdiction to order an Anton Piller flows from a superior court’s inherent jurisdiction. It rejected an argument that the British Columbia Supreme Court has no jurisdiction to order an Anton Piller because the Court’s rule-based power to preserve property on an interim basis is narrowly worded.

Note that the Court did preserve the Mareva injunction against Mr. Malik alone based on a finding that the Crown had prima facie claim for an equitable interest in his property and otherwise met the test for an injunction.

British Columbia v. Malik, 2009 BCCA 201.

Case Report – BCCA deals with complaint by employee terminated after background check

On May 7th, the British Columbia Court of Appeal ordered a matter back to the Information and Privacy Commissioner of British Columbia to address whether the Ministry of Children and Family Development breached the accuracy provision of the British Columbia FIPPA by advising one of its funded agencies to supervise a newly-hired employee pending its review of his file.

The Court of Appeal considered a single substantive issue. It held that the OPIC does not have jurisdiction to consider whether a designate of the Minister is authorized to disclose information by section 79(a) of the British Columbia Child, Family and Community Services Act, which authorizes non-consensual disclosures that are “necessary to ensure the safety or well-being of a child.”

The Court of Appeal did, however, remit a different substantive matter back to the OIPC that was apparently raised by the chambers judge on his own motion. The chambers judge had held that the Ministry breached FIPPA’s accuracy provision by basing its supervision recommendation, at least in part, on the existence of an “assessment only” file on the Ministry’s records. The Ministry opened this file as a result of a child services complaint against the employee that the Ministry had determined was beyond its jurisdiction. The chambers judge held that the Ministry breached its duty to “make every reasonable effort to ensure that personal information is accurate and complete” by relying on the “unreliable” file. The Court of Appeal held the chambers judge erred given the OPIC had not made a decision on the accuracy issue, but did remit it back to the OPIC.

Harrison v. British Columbia (Information and Privacy Commissioner), 2009 BCCA 203.

Privacy Post Published

We’ve published or Privacy Post caselaw digest, covering relevant developments in Canadian information management and privacy law. The link is here. And the following is our lead-in.

So what’s new?

Much has been said about Leduc v. Roman, the case in which Mr. Justice Brown of the Ontario Superior Court of Justice granted leave to cross-examine a plaintiff in a motor vehicle accident suit about the nature of content he posted on his Facebook profile. This is the second Ontario case in which a judge has shown little appreciation for an argument that information .posted in a “friends only” section of a social networking profile page should be treated as private in considering the appropriateness of production. Leduc is significant, but there are a number of other decisions we’ve reported that also demonstrate an intensifying new dialogue on the law of production and personal privacy. If you’re interested in this subject, Warman v. Wilkins-Fournier (on anonymous internet use) and British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd. (on non-party participation rights) are worth a read.

We’ve also covered the numerous recent “lawful access” cases – cases in which criminal defendants have argued that their Charter right to be free from unreasonable search and seizure has been violated because police have requested and obtained information from organizations to further an investigation, without seeking a warrant. For what these cases mean to employers, please see our recent client bulletin, Pretty Please: Police requests for employee personnel files.

Please check it out and enjoy!

Case Report – Alberta HIA does not prohibit consensual marketing and fundraising

On April 20th, the Alberta Court of Queen’s bench quashed several Alberta OIPC orders made against a doctor and a medical spa in relation to the maintenance and use of a database of contact information used to market medical and medspa services and fundraise for a related charitable foundation.

The complainants were patients of the doctor who claimed to have received mailings without having provided consent. Both asked not to be identified in the course of the OPIC’s inquiry because they feared reprisal from the doctor and had an ongoing need for his services.

The Court held that the OIPC erred in agreeing with the complainants’ request for anonymity and withholding their identities. It held that the OIPC must meet a “fairly stringent” standard of fairness and did not meet this standard in the circumstances. It discounted the complainants’ concern about access to medical services given they lived in a major centre and held the prejudice to the respondents from non-identification was significant. The Court said:

Had the applicants been provided with the identity of the complainants, they could have checked their records to confirm whether consent had been provided or refused, or may have had an explanation as to why the complainants continued to receive solicitations despite their wishes to the contrary if that in fact was the case. Here the applicants were forced to accept the evidence of the complainants that they had not provided consent, without being given the opportunity to rebut the evidence. In my view this was unfair and wholly inappropriate given the reliance of the Privacy Commissioner on the complainants’ evidence of no consent and the applicants’ evidence that documentation was available which could potentially support their position that consent was obtained. Relevant documentation would likely have constituted the best evidence as to whether or not consent was given to the use that was made of the information.

Even more significantly, the Court held the OPIC erred in finding that the Alberta Health Information Act prohibits the collection and use of individually identifying health information for marketing and fundraising purposes with or without consent. In doing so, the Court recognized that the general purpose of privacy legislation is to give people control the use of their personal information. It held the OIPC’s interpretation was inconsistent with this purpose, inconsistent with evidence of legislative intent and inconsistent the text of the statute.

Lycka v. Alberta (Information and Privacy Commissioner), 2009 ABQB 245.

Information Roundup – 25 April 2009

Here are some of my tweets of the week on information management and privacy law:

I heard a bump in the night this week, freaked-out and immediately removed all pictures of Hugo, our son, from the public internet. Sounds paranoid, but I recently heard a story about a Toronto break-in that makes the risk feel quite real. I’m as proud a father as any, but any risk at all is not worth it. I’d still like to share a little something personal in these weekly posts, but you’re likely to hear more about me and Seanna from here on in.

The picture below is from a beautiful surf spot in Chile. It’s very well known, but I’ll refrain from naming out of respect for convention anyway. I spent a week in 2004 staying solo right up from where the picture was taken, was blown away by the beauty of the place and was freaked out by some big waves. They’re at least triple-overhead in this picture. I managed the very hard paddle out later in the day when it came down a bit and after getting ripped down the point and spit out on the beach two times. I’d encourage everyone (surfers and others) to take a trip to Chile’s coast and take an interest in the local environmental issues. It’s a wonderful place.

See ya!

Dan

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Case Report – Motion for listing of Facebook records dismissed

On April 14th, the Ontario Superior Court of Justice dismissed a motion for an order requiring three plaintiffs in a personal injury action to list the current content of their Facebook and MySpace pages.

Master Haberman took issue with the timing of the motion, which she heard a month before a fixed trial date and almost three years after the matter was set down for trial. She held that she had no jurisdiction to make an order that was certain to interfere with the fixed trial date and, in any event, would not have granted leave in the circumstances. She rejected the defendant’s claim that the February 2009 decision in Leduc v. Roman (summarized here) brought about a “substantial change” which justified leave to conduct pre-trial discovery and held that there was no evidence that proceeding without disclosure of the requested information would cause an injustice.

Master Haberman also held, in obiter, that the request for disclosure from the injured plaintiff’s family members, who had claimed only for loss of care and companionship under the Family Law Act was improper.  She said, “Before Leduc can be invoked, there must be something to suggest at least some possible connection between the matters in issue and the documents sought.”

Kent v. Laverdiere, 2009 CanLII 16741 (ON S.C.).

My “conference season” appearances

I’m not sure where it’s written that May/June is prime time for continuing education conferences, but it sure seems to be that way. Here’s my schedule of public appearances over the period.

  • “Best Practices for Document Retention and Destruction,” at The Canadian Institute”s Meeting Your Privacy Obligations conference – May 27 & 28 in Toronto. I plan to present broadly on “The Anatomy of a Retention Rule” and deal with privacy and regulatory compliance, risk management, production-related issues and other practical considerations. Looks like a very solid lineup, with commissioners Jennifer Stoddart and Frank Work and privacy lawyers and bloggers David Fraser and Brian Bowman on the roster.
  • Workplace Privacy segment at the OBA’s Hot Topics in Privacy Law – Morning of June 8 in Toronto. This program has a segment on privacy breaches then a series of rapid-fire presentations, mine on workplace privacy. I have ten minutes to present three important ideas relating to e-mail investigations, audits and surveillance.
  • “E-mail as Evidence” at Osgoode PDP’s Obtaining, Producing and Presenting Electronic Evidence – June 11 & 12 in Toronto. Thrilled to be co-presenting with John Gregory on this one. We’re meeting soon to prepare, but the session billed has a focus on e-mail management.
  • Pre-conference workshop at the Canadian Association of College and University Student Service’s annual conference – June 14th in Waterloo. This is billed as a case law update relating to student discipline and related issues, but I’ll strive to keep the discussion practical. I did this session two years ago and focused on information management, threat assessment and the duty of care. We had a great discussion and I hope to facilitate the same this time around. It’s always a pleasure to engage with student services administrators, whose skills in making practical judgement calls are tested day-in and day-out.

I’m looking forward to meeting people and advancing my thoughts this conference season. Please browse these programs and consider signing up. And if you’re attending (or even if not) and have any questions, issues or suggestions that might help me to develop relevant content, please comment or e-mail. I’d appreciate any input you can provide!

Dan

Information Roundup – 17 April 2009

I’ve been on vacation for the last two weeks and have changed-up my reading pattern in an attempt to write a couple papers for some May/June conferences (which are soon to be promoted here). I have managed to follow the buzz on Twitter though. Here are some links in the domain you might like:

We’ve been in on Halifax’s Eastern Shore, a place which we hold dear. I got my surf fix in – with better swell than expected for this time of year – and Seanna and I managed to entertain The Bug and ourselves with good daily activities and meet-ups with awesome local friends. Here are a few pics of the highlights.

See ya!

Dan

[2 pics deleted – sorry!]


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