The Ontario Court of Appeal issued reasons today for orally dismissing an application brought by Canadian Civil Liberties Association to intervene in the appeal of Tadros v. Peel Regional Police Services. This is a case from last October in which the Ontario Superior Court of Justice held that a police service unlawfully disclosed information about an individual’s withdrawn criminal charges in the course of conducting background checks (see “Breadth of disclosure in criminal background checks unlawful” here). The Court of Appeal’s procedural decision indicates that the merits of the appeal were to be heard yesterday and the day before.

On November 4th, the Divisional Court considered conflicting jurisprudence and held that section 35(9) of the Ontario Mental Health Act does not require a court application to be heard before psychiatric facility medical records can be produced to another party pursuant to a pre-hearing production order.  It held that section 35(9) only establishes a precondition to the admission of psychiatric records as evidence and to the hearing of oral testimony about information obtained in the course of assessing or treating a patient in a psychiatric facility.

Toronto Police Association v. Toronto Police Services Board, 2008 CanLII 56714 (ON S.C.D.S.C.).

On October 27th, the Ontario Superior Court of Justice ordered a party to pay $15,000 in damages for trespass plus costs on a full indemnity basis for misidentifying its intended target and seizing documents from the wrong target’s residence based on what the Court held to be an inadequate investigation.  The order was made on a motion brought by the subject of the Anton Piller, who waived any claim to mental distress damages so he could have an immediate remedy.

Multimedia Global Management v. Soroudi, [2008] O.J. No. 4383 (S.C.J.) (QL).

On November 5th, the British Columbia Court of Appeal held that it was not plain and obvious that an individual who directed an investigation into an allegation of employment-related misconduct did not owe a duty of care to the subject of the investigation.

The facts of the case are not unique.  A school board received a complaint that a principal had been physically abusive to a teaching assistant.  The superintendent retained an external investigator, who investigated and prepared a report that the superintendent relied upon in issuing a letter of discipline. Although the principal’s legal counsel objected that the principal had not been given an opportunity to review and respond to the final report before discipline was imposed and requested that the board refrain sending a copy of the letter to the British Columbia of College of Teachers before such an opportunity was granted, the superintendent nonetheless sent the letter to the College.  The principal sued the school board and the superintendent for various deficiencies in the investigation and for publishing the letter of discipline.

The Court of Appeal held the action should not be struck because it was not plain and obvious that the superintendent owed no duty of care. It distinguished the Ontario Court of Appeal’s recent finding in Correia v. Canac Kitchens as being a case about whether an employer itself owed a civil duty of care to its employees in conducting internal investigations.  Though the Ontario Court of Appeal rejected such a duty in Correia, according to the British Columbia Court of Appeal it did not address whether an individual employee could owe an independent duty of care to another employee under investigation. The British Columbia Court of Appeal also held that the policy reasons that weigh against recognizing an employer duty of care did not apply to claims made against an individual employee.

The Court also rejected the superintendent’s attempt to strike the action because he was acting strictly in the course of his employment.  It held that the well-known principle in Said v. Butt (that shields employees from liability for causing a breach of contractual duties owed by their employers) does not extend to the tort of negligence even when the acts alleged to be negligent occurred in the performance by the employee of a contract between the employee’s corporate employer and a plaintiff.

Hildebrand v. Fox, 2008 BCCA 434 (CanLII).

Here are a couple of mid-week links to check out.

• Anne M. Macrander, Bloggers as Newsmen:  Expanding the Testimonial Privilege. Seems like a flashy issue, but it’s so important. (Boston University Law Review 88:4)
• Bobbie Johnson, Cloud computing is a trap, warns GNU founder Richard Stallman.  Covers Stallman’s warning about the loss of data control associated with cloud computing. Thanks to Privacy Guy.  (guardian.co.uk) 

Just finished up three days of summer student recruiting.  It’s a job we take very seriously at Hicks.  A ton of work but always very rewarding.  I learn something about myself, my colleagues and the profession every time. We met some great some great candidates over the last few days and shared with them an intense and sometimes emotional experience.  Thank you, and wish you all the best!

See ya!

Dan

On October 30th, the Alberta Court of Appeal reinstated an action dismissed because the plaintiff had destroyed evidence. In doing so, it made some very clear and principled statements distinguishing the traditional spoliation presumption from other bases for a spoliation remedy.

First, the Court confirmed that the spoliation presumption first recognized by the Supreme Court of Canada in the 1896 St. Louis case is simply a rebuttable presumption of fact that requires a finding of intentional destruction of evidence:

Moreover, in my view, it is not appropriate to apply the presumption that the evidence would tell against the spoliator when evidence has been lost or destroyed carelessly or negligently, or something else short of the intention required by St. Louis. The presumption is no more than an adverse inference, drawn from circumstances surrounding the destruction or loss of the evidence. When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.

Next, the Court distinguished this specific remedy from the broader range of remedies that might flow from the Court’s rules-based or inherent jurisdiction to control its process. It suggested the maintenance of trial fairness should be the primary guide to the exercise of discretion and warned that the striking of an action is extraordinary: “While the court always has the inherent jurisdiction to strike an action to prevent an abuse of process, it should not do so where a plaintiff has lost or destroyed evidence, unless it is beyond doubt that this was a deliberate act done with the clear intention of gaining an advantage in litigation, and the prejudice is so obviously profound that it prevents the innocent party from mounting a defence.”

And finally, the Court noted that there is no recognized civil duty to preserve evidence in Canadian law: “The issues of whether a party may be guilty of negligence where it destroys documents it had a duty to keep, or whether spoliation exists as an intentional tort, are not engaged in this case and any comment about whether the law should be developed in these areas should be left to a case where these issues arise from the facts.” (While the duty to refrain from intentionally destroying evidence has been addressed in the well-known Spasic Estate and Endean cases, whether there’s a positive duty to preserve evidence subject to the negligence standard of care is more significant and also less discussed.)

On the facts, the Court held that the chambers judge had erred in striking the action because there was insufficient evidence to conclude that the acts of destruction alleged were intentional and because it was not possible to make a determination on prejudice before the development of a trial record. It did, however, grant the defendant leave to examine the expert it accused of misconduct.

McDougall v. Black & Decker Canada Inc., 2008 ABCA 353.

The Ontario and BC privacy commissioners have released a practice tool for violence prevention at post secondary institutions.

The tool is important and helpful, but does tend to blur the distinction between disclosure of personal information collected in the course of providing health care and disclosure of personal information collected in the course of academic and non-academic administration. For example, the commissioners state very generally, “The disclosure of personal health information allowed by BC and Ontario privacy laws is also consistent with disclosure permitted by the rules governing medical professionals such as physicians, nurses and psychologists.”

While the “life trumps privacy” message communicated by the commissioners is a critical one for health care practitioners, university and college administrators and academic staff alike, to equate the standard for disclosure of personal information collected in the course of providing health care to the standard for the disclosure of other personal information would be a radical proposition. Universities and colleges should be cautious that the commissioners did not necessarily intend to make such a finely-pointed policy statement.

I have a strong interest in this topic. For my most substantive post on violence prevention at post secondary institutions, please click here.