Category: Uncategorized

Case Report – ABCA quashes Bantrel site access drug testing award

On March 9th, the Alberta Court of Appeal quashed an arbitrator’s endorsement of a site-access testing policy brought in by an Alberta construction site owner.

The arbitration panel’s March 2007 award was quite broad. Chairperson Phyllis Smith held that the parties’ incorporation of a model drug and alcohol guideline did not preclude pre-access testing of current employees and then focused most of her analysis on whether the testing requirement was reasonable in all the circumstances. See here for a summary.

Unlike the arbitration award, the Court of Appeal’s judgement is narrow and based on contract language. It held that the panel erred in holding that the parties did not preclude site-access testing by incorporating the model. The model referred to “pre-employment” testing, which the Court stressed was different than the “pre-access” testing of current employees. It held that the incorporation of pre-employment testing impliedly excluded pre-access testing.

The Court also read a clause that was unique to one of the three collective agreements very narrowly. The agreement specified that the “parties will cooperate with clients who institute pre-access drug and alcohol testing.” The Court read this as an agreement to negotiate, reasoning that the word “cooperate” was not strong enough to indicate an endorsement of pre-access testing given its exclusion from the model.

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2009 ABCA 84 (CanLII).

Case Report – Investigative records that find their way into prosecutor’s brief not exempt as “prepared” for counsel

On March 6th, the Ontario Divisional Court held that the police investigation records are not exempt from public access as being “prepared” for Crown counsel merely because they are incorporated into a Crown brief.

The dispute involved the so-called “Branch 2” privilege created by section 19(b) of the Ontario Freedom of Information and Protection of Privacy Act. It exempts records from public access that were “prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.”

The Court held that preparing a record for the (policing) purpose of investigating a matter and deciding to lay charges is distinct from preparing a record for the purpose of prosecution. It also held that the detailed exemptions in the Act for “law enforcement records” were an indication that the legislature did not intend the Branch 2 privilege exemption to protect the Crown brief. The law enforcement exemption includes a subpart meant to preserve trial fairness, but this could not be relied upon in the circumstances because the Crown had withdrawn the charges at issue.

Ontario (Attorney General) v. Information and Privacy Commissioner, 2009 CanLII 9740 (CanLII).

Case Report – BCCA deals with production of class member records in proportionality decision

In a February 13th oral judgement, the British Columbia Court of Appeal affirmed an order that required the province to produce records pertaining to class members who had not opted out of a class proceeding.

The proceeding alleges systemic negligence and breach of fiduciary in the operation of a residential school. In ordering production of records related to individuals who had not opted out of a potential class of up to 2,200 members, the Court affirmed three findings:

  1. that production should not be denied because of the records’ potential misuse as evidence of individual incidents (given their prima facie relevance to the systemic breach claims); 
  2. that production should not be denied based on privacy concerns given that potential class members were given notice and an opportunity to protect their files from disclosure by opting out; and
  3. that production should not be denied based on the scope of production (about 2.2 million pages of records), noting that the production request was not “a futile search for documents of unknown relevance.”

As the concept of “proportional” production takes greater prominence in Canadian civil procedure, this case is a nice illustration of how the cost of production can have various elements. One might argue that it demonstrates a rather traditional or fulsome-production view, where costs related to procedural complications and delay, privacy and document review do not weigh heavily in the balance.

Richard v. British Columbia, 2009 BCCA 77.

Case Report – Alberta court upholds privacy complaint for disclosure of faculty member merit award

On February 29th, the Alberta Court of Queen’s Bench affirmed an Alberta OPIC finding that a university had breached the Alberta Freedom of Information and Protection of Privacy Act by disclosing a faculty member’s recommended merit increase.

The complaint involved a document circulated within the complainant’s department that included information about the department chair’s annual merit increase recommendations. The document did not include names, but associated merit increase recommendations with data on papers published. The complainant argued that his merit increase was disclosed given that it was associated with data about an unnamed person who had published 37 papers in the year. The university argued that it had only disclosed statistical information.

The Court’s finding is very fact-specific, but does illustrate that whether information is “personal information” – information about an identifiable individual – can depend on the context in which it is published. The Court held that the OIPC reasonably concluded that the data on papers published revealed the complainant’s identity given the size of the department and the complainant’s well known and relatively superior level of academic output.

There are other aspects of the Court judgement that are noteworthy, including the more principled (but not surprising) finding that the document was not excluded from the act as “research information” or “teaching material.”

University of Alberta v. Alberta (Information and Privacy Commissioner), 2009 ABQB 112 (CanLII).

Case Report – Court infers that Facebook pages include relevant information about lifestyle

On February 20th, 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.

If defence of a claim for compensatory damages for loss of enjoyment of life, the defendant sought production of all content in the plaintiff’s Facebook. It did not examine the plaintiff on whether he had any photographs revealing of his post-accident lifestyle in oral discoveries, but learned of his Facebook’s existence after discovery and developed a theory that it would contain such photos.

Master Dash held that the existence of the plaintiff’s Facebook was not reason to believe it contained relevant evidence about his lifestyle. He distinguished the Court’s decision in Murphy v. Perger by noting the plaintiff in Murphy had produced publicly-available photos from her Facebook, therefore creating a reasonable suspicion that the private part of her Facebook contained additional relevant photos. Master Dash said the defendant, without any such evidence, was just fishing.

The appeal judge disagreed, stating:

With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.

Based on this inference, the appeal judge also said that a party should ordinarily be granted a right to cross-examine on an affidavit of documents where it does not have a right of discovery (as in Simplified Rules actions) and when a plaintiff who makes a claim that puts his or her lifestyle in issue produces “few or no documents” from his or her Facebook.

Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).

Case Report – Appeal court restores defence struck as a remedy for spoliation

On February 13th the Prince Edward Island Court of Appeal held that a motions judge erred in striking a statement of defence as a sanction for non-production. The Court suggested that such a strong sanction should not be utilized for discovery abuse in the absence of a finding of bad faith or contempt given the difficulties in assessing relative prejudice before trial. It nonetheless sanctioned the defendant by imposing conditions on the use of records subsequently found, by specifying that the trial judge may presume damages and by awarding costs of the motion and appeal to the plaintiff.

Jay v. DHL, 2009 PEICA 2 (CanLII).

Case Report – Arbitrator Simmons rejects challenge to bag search

On January 29th, Arbitrator Gordon Simmons dismissed motion to exclude evidence obtained in a bag check conducted by a municipal employer.

The employer found stolen goods after examining the contents of two bags that were left near a receiving area of a care home. One of the bags was left open and there was signage nearby indicating that personal belongings should not be left unattended. The Union argued the evidence should be excluded because the employer breached section 8 of the Charter.

In the circumstances, Mr. Simmons held that the grievor had abandoned her expectation of privacy. More significantly, he held that the Charter did not apply to the municipality in its management of the grievor’s employment relationship:

Unlike the many reported decisions the instant case does not involve a matter arising out of a criminal activity where the state is the direct actor in the form of police involvement in carrying out the search and seizure. Instead, the issue at hand involves an employment relationship with a collective agreement. While the courts do not appear tot have addressed the set of circumstances directly it would appear the Charter does not apply.

In making this finding, Mr. Simmons relied the Supreme Court of Canada finding in Dunsmuir, where it held that the termination of public sector employees is generally governed by private law.

Ottawa (City) and Ottawa-Carleton Public Employees Union, Local 503 (Nguyen Grievance), [2009], O.L.A.A. No. 37 (Simmons) (QL).

Case Report – Ont. C.A. considers pre-trial publicity, jury contamination and the internet’s long memory

On January 26th, a 3-2 majority of the Ontario Court of Appeal held that the mandatory ban on publication of bail proceedings when requested by an accused violates the Charter-protected right to freedom of the press and is not saved by section 1. The majority read down the Criminal Code ban so that it applies only to charges that may be tried by a jury.

All members of the panel agreed that the mandatory ban breached freedom of the press. They also agreed on the purpose of the ban:  to ensure a fair trial by promoting expeditious bail hearings, avoiding unnecessary detention and allowing accused to retain scarce resources to defend their cases. The panel members differed, however, on how to apply the Charter‘s saving provision, section 1.

The majority, in judgement written by Madam Justice Feldman, held that the ban was over-broad in its application to charges that may not be tried by a jury. While finding that judges are “professional decision-makers” immune to the influence of pre-trial publication, the majority was not willing to invalidate the legislation as it applied against juries given the conflicting social science evidence on the impact of pre-trial publication on jury decisions. It held that the legislature is entitled to act upon a “reasoned apprehension of harm” in enacting laws based on such disputed domains.

The minority, in a judgement written by Mr. Justice Rosenberg, held that the conflicting evidence was a basis for striking down the ban in whole (with a 12 month suspension). The minority held that the salutary effects of the ban did not outweigh its deleterious effects because the causal connection between pre-trial publicity and jury contamination is weak and speculative.

Both the majority and minority made comments on the internet and the concept of practical obscurity.  The majority said:

It is also, in my view, no longer appropriate or realistic to rely on jurors’ faded memories of any pre-trial publicity by the time of the trial as the basis for confidence that they will not remember what they read or heard. Once something has been published, any juror need only “Google” the accused on the Internet to retrieve and review the entire story.

The minority made a similar note:

On the one hand, the salutory effect of any publication ban is undermined by the ease with which the ban can be circumvented.  On the other hand, because of the nature of the Internet, information first published at the time of the bail hearing is always accessible, right up to the time of the trial.  In other words, the court cannot always simply rely upon the fact that time will have passed from when the information was first published and that this passage of time will lessen any prejudicial effects of the information.

On the whole, perhaps all that can be said about the efficacy of publication bans in the era of mass communication and the Internet is that the salutory and deleterious effects are uncertain.

The concept of practical obscurity is one favoring the maintenance of an individual’s privacy interest despite the disclosure of information because the information can be hard to find or recall.

For more detailed commentary, see the Court’s summary here.

Toronto Star Newspapers v. Canada, 2009 ONCA 59.

Workplace privacy panel notes and case citations attached

I greatly enjoyed sitting on a panel with Professor Avner Levin on workplace privacy today!  

Dr. Levin and other members of the Ryerson University Privacy and Cyber Crime Institute at the Ted Rogers School of Management have recently published a leading study on the perceptions of risk of young Canadians engaged in online socializing and how their behaviors meet with the use of online social networks by business for commercial and human resources purposes. Dr. Levin’s work raises some important and difficult questions about whether the law should cause companies who provide social networking platforms that are used predominantly by youth to take greater responsibility for user privacy (and other content-related disputes). I commend it to you.

I did promise to provide a copy of my preparatory notes (most of which we did not touch on) as well as coordinates for some of the cases that came up in discussion. Here are the notes and the cases:

Take care!

Dan

Information Roundup – 1 February 2009

The depths of winter are upon us, and what a winter it has been! I hope you are all coping. I’m doing okay, but did have to book a plane ticket to Halifax for a couple of weekends from now to give me something to look forward to. It doesn’t matter if it’s cold, as long as surf is involved I’ll be revived.

Here are some recent developments in the domain that you may find noteworthy. They are about child pornography reporting, why FOI in Ontario has not yet met e-discovery and why there is no “bright line” test for improper “campus speech.”

Child pornography reporting

Kelly Harris of Canadian Lawyer InHouse recently wrote on Ontario’s new child pornography reporting law. Kelly quoted me, and in prepping for his call I did a bit more thinking about the law than I had at the time I first reported on it. The reporting duty applies to “persons,” and though one might argue a corporation/system owner has a duty to report, the law is clearly geared at individuals. But as I told Kelly, corporations can’t wash their hands of the duty to report material found on their computer systems. It’s good workplace policy for employers to support the members of their IT staff, but employers also need to protect themselves from potential criminal liability.

In my view, one of the things the legislation does is engage “the course of justice” as soon as a person discovers what might reasonably be child pornography. The suspected pornography, which is in the custody of the employer, is now evidence and must be treated carefully given the potential for obstruction charges. This is a significant change, and rules out dealing with the found material as an internal, employment-related matter.

As for policy-buliding, Ontario school boards have great reporting protocols that employers may look at to get started. Search “child in need of protection” and “district school board.”

Why FOI in Ontario has not yet met e-discovery

Decisions about how to conceive of a “record” are so fundamental that they tend to get information and privacy people like me excited. The January 19th Arizona Court of Appeals decision that metadata is not a “public record” under Arizona open government legislation has attracted such a buzz. Here is K&L Gates’ summary of the case, which I have scanned but not read.

Our freedom of information law in Ontario is different, and allows for access to records in electronic form (see the Gombu case for an example). That said, we have not seen an escalation of electronic production demands that even remotely resembles that demonstrated in the American e-discovery experience or even the relatively mild Canadian e-discovery experience. Paper-based production in Ontario FOI procedure still prevails, likely because the system is a user-pay system where escalation does not serve requesters and because the regulation does allow for full recovery of the “invoiced costs” of e-discovery. I’m aware of just one IPC/Ontario order upholding the recovery of such costs, but it’s an important one if escalation is to be avoided.

The douchebag case – why there is no “bright line” test for improper “campus” speech

I ignored my friends’ tweets about “the doucebag case” for about two days until, with some time to kill in the back of a cab, I linked through one friend’s tweet and realized all the buzz was about a student speech case – one about a high school student who was sanctioned for referring to her school administrators as “douchebags” in her personal blog. The news that’s got people talking (or tweeting as they may) is a Connecticuit court’s January 15th partial dismissal of the student’s claim. Mary-Rose Papendrea has posted an excellent summary and critique of the judgement on the Citizen Media Law Project’s blog. She says:

…courts should be reluctant to apply Fraser to off-campus Internet speech because that case does not require a showing that the offensive expression disrupted or could reasonably be expected to disrupt school activities. Because Fraser does not require the school to make this showing, schools could restrict any indecent speech by a student, anywhere regardless of where he engages in it, without any additional showing. The idea that schools could regulate offensive speech on the Internet without showing any harm to the school would give school officials virtually limitless authority to police their students’ expression, and this should give courts pause. Although students have somewhat limited free speech rights while they are at school, they are entitled to full free speech protections outside of school.

To suggest that a sanction must be based on reasonably foreseeable harm to a legitimate interest is reasonable, but let’s look at the moral panic that this case has caused.

The article I linked through to on my cab ride was one about a proposal by a Connecticut legislator that was made in response to the case. In the name of clarity, this legislator has proposed a “bright line rule” – one that would “prohibit school authorities from punishing students for the content of electronic correspondence transmitted outside of school facilities or with school equipment, provided that such content is not a threat to students, personnel, or the school.”

To be fair, even the legislator’s proposed rule builds-in a harms-based test. The focus on the locus of the communication, however, is misplaced. I make no comment on the outcome in the douchebag case, but I do agree with the Court’s comment that locus of the communication has become less and less relevant to the balancing of interests that is required in resolving student speech cases. The Court said, “Off-campus speech can become on-campus speech with a click of the mouse.” This is indisputable. So rather than generate some false sense that individuals will not be accountable for harms caused or likely to be caused by communication made from a home computer and on a personal blog, policy should focus on the real issue – what standard of harm or foreseeable harm to the school environment justifies a restraint on speech in what circumstances. To suggest answering this question is as easy as looking at the locus of the communication is misleading.

***
I’ve been wordy today, but I’ve been enjoying using this space for telling personal stories. That’s what online social networking is about right?

We refer to this photo as “the men photo.” There’s a copy on our living room wall at home and I send it around to friends once and a while because it brings back such good memories of our time in Maui.

n655200596_4992568_8951The guy in the tux is my friend Artur Szpunar, and this was his wedding day. Art went down to Maui with me for a windsurfing trip after finishing first year of an engineering degree at Queen’s University and has never left. When I packed my bags to return home, I left Art with less than $100 and a few days of paid-up rent. Now, 11 years later, he’s got a happy family and an awesome gig as sail designer for Maui Sails.

Art’s wedding was about four years after his arrival on Maui and just a month or two after he survived a crazy and serious battle with necrotizing fasciitis (Streptococcus A or the “flesh eating bacteria”). I owe Art big, because I became infected by the Strep A bacteria shortly after him, and the only thing that convinced the hospital to take my case seriously at first was my pleas about what happened to Art. Given the early attention, I ended up checked into the hospital for only a week. I frequently wheeled myself down to visit Art, who by then was on the mend.

To Art’s right is my good friend Dan Kaseler, also a sail designer, now based out of Washington state and designing windsurf and other sails through his own company. To Art’s left is Johnny Boyle, a Scottish hellman who has now settled down with family in California. The other fellow is John’s brother “Moxie.”

The wedding plan was to have guests congregate with the groom in the parking lot of the Iao Valley State Park before hiking to meet Art’s bride-to-be, Amanda. If it was sunny Amanda would be in one place and if it was rainy she would be in another. Not a bad plan if the Iao Valley wasn’t one of those places in Hawaii where it’s almost always sunny and rainy at the same time. So it took us all a few wrong turns to find Amanda, but all worked out. Art and Amanda got married, Art healed and got back in the water and they now have a beautiful three-year-old daughter.

Telling a Maui story always reminds me that there’s more than one way to go about living life. It also helps warm my heart and put a smile on my face, even in the depths of winter. Thanks for listening!

Dan