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Case Report – Court considers nature of spoliation claim in allowing leave to amend SOC

On August 18th, Master McLeod granted a plaintiff leave to amend its statement of claim to add an allegation of spoliation brought first on the eve of trial.

The action was brought by a doctor whose hospital privileges were revoked in 1991. He sought to add a claim that original notes of the board meeting at which his privileges were revoked were suppressed in a purposeful attempt to obscure relevant details of how the meeting unfolded. The spoliation allegation was made, in part, based on actions taken by the hospital’s former executive director and a member of the medical staff who the plaintiff alleged instigated the case against him because of a personal vendetta. The executive director was alive and denied the spoliation allegation, but the allegedly vindictive doctor had died sometime after 1991.

Master MacLeod held that the executive director had ultimate responsibility for preparation of the corporate minutes and could answer the spoliation claim. He also dismissed an argument that amendment should be denied because of the expiration of a limitation period, suggesting that spoliation should at least be available to the plaintiff as an evidentiary principle:

For the purpose of this motion it is therefore important to understand that while spoliation could be an independent cause of action in circumstances that are yet to be defined, it is not necessarily a separate cause of action. One might imagine that a court convinced that evidence has been destroyed or suppressed would first have to determine the case based on the available evidence and if the missing evidence is critical would have to decide whether to apply a spoliation negative inference. If the plaintiff is successful in proving its case on that basis, there would be no need to rely on a tort of spoliation. Moreover a court could sanction for destruction of evidence by other means including costs without resort to a novel tort. One might also suppose that spoliation could constitute an independent wrong for punitive damages purposes without being recognized as full fledged independent tort captured by the Limitations Act…

It follows that spoliation may give rise to either an evidentiary presumption or to sanctions or to both without being characterized as tortuous conduct. If an independent tort of spoliation does develop, then it is not possible to define with precision what it will ultimately look like nor when all elements of the cause of action will accrue. For these reasons, the Ontario Limitations Act, 2002 may or may not apply. The Limitations Act is not a bar to these amendments.

Consistent with his view that the litigation of the spoliation tort claim should be fully left to the trial judge, Master MacLeod also noted that the defendant could plead the Limitations Act in its defence.

Zahab v. Salvation Army, [2008] O.J. 3250 (S.C.J.) (QL).

Information Roundup – 26 August 2008

Here are some readings you may find interesting.

  • “What Price Privacy?”  This is a great self-critical video by the Australian Broadcasting Corporation on the Australian Law Reform Commission proposal for a new statutory privacy tort. Hat tip to Peter Timmins.
  • “Universities Try to Control Students off Campus.” About a trend towards more expansive non-academic codes of student conduct.  It includes an odd statement from a student services administrator who suggests the expansion is about educating students on teaching responsible citizenship. I think it’s more driven by a new recognition that off-campus behavior is relevant to on-campus safety and, to a lesser degree, by the virtualization of harms. (Associated Press) 
  • Craig Ball, “When All Agree to Delete.”  About theft of information by departing employees.  He says, “Before you include data obliteration as a condition of settlement, be certain you’ve considered all the steps needed to effectuate reliable eradication, as well as the total cost and potential disruption.” (Law.com)

Not much to report on the personal side, other than I’m in need of a good surf. Thankfully, the Atlantic surf season is upon us.

See ya!

Dan

Information Roundup – 17 August 2008

Here are a few readings you might be interested in.

Well, for the past two weekends I’ve tried to cross Lake Ontario unsuccessfully and, though positive about the experience, am going to hold off until next year.

Last weekend, Max and P.J. flew in and we stayed over in St. Catherines on Friday night. The forecast for the weekend was very mixed. Sunday was definitely out because of t-storms and the Saturday forecast called for afternoon storms. We knew we needed to get out early and have a perfect paddle, so got to the beach at just after 5:00 in Niagara-on-the-Lake. We set out and things were okay, but the winds weren’t right and we knew it would be a long haul, so turned back. Dissapointing, especially for Max and P.J., but we made some good decisions and it felt like an adventure. I also figured I learnt enough that I’d go for it solo and unsupported on the next opportunity.

So yesterday I drove out to Jordan Harbour for a morning start. It was probably a mistake to go from there because it’s five kilometres further to cross (50 km total from Jordan versus 45 from NOL) and you lose the good current coming out of the Niagara River (about 3 km/hr). I figured I would have a better bearing for tailwinds from there but the wind never veered far from the West/North West and I was paddling across and slightly into the wind the whole way, which was okay but meant I couldn’t knee paddle or relax. By 20 km there was no turning back but I was hurting and going a full third slower than my normal pace. Twenty-five to 30 km was extremely tough mentally, and when a couple km later a fishing charter came by asked if I wanted a ride I figured it might be my best option. Thanks to Endel V. for his kindness and the lift back to the Port Credit harbour. If anyone wants a good Lake Ontario fishing charter let me know and I’ll hook you up with Endel!

I’m looking forward to going it again, maybe next May when there’s more likelihood of scoring a calm day without a storm risk. Hopefully I can talk Max and P.J. into coming along. They’re solid guys who provided the whole motivation for this, and its been great to get to know them.

I have no regrets. At times in my training I felt a little nonchalant about the task, but a crossing is a lot different than paddling even long distances near shore because you’re super-committed and super-exposed. It was a really brutal feeling to be hurting so bad at half way and have nobody around and no options but to keep going, but there lies the challenge! Thanks again to Boardsports for loaning us a stand-up paddleboard and to everyone who donated. We’ve raised almost $600 to date for the Canadian Parks and Wilderness Society.

Until next year, Lake 2 versus Surf Paddlers 0.

Dan

Case Report – Workplace surveillance system survives arbitral scrutiny

On July 4th, Arbitrator Craven partially upheld a policy grievance which challenged the expansion of an employer’s in-plant video surveillance system but nonetheless gave a strong endorsement to the employer’s purpose for using video surveillance.

The grievance was about the expansion of a system video cameras in a meat packing plant. The system featured un-monitored, high resolution cameras, some of which were fixed on work areas. It recorded digital images which were retained as long as disk space permitted and apparently not based on a fixed retention period.

Although there was some ambiguity about the purpose of the system, Aribitrator Craven ultimately found that the purpose of the system was, “to investigate plant security, industrial discipline and food safety incidents that come to the Employer’s attention by other means than monitoring the video in real time or viewing or sampling the recordings.” He held this investigatory purpose was legitimate. He also made clear that the employer was not using the cameras to “systematically collect information about employees or to identify occasions for discipline.”

Arbitrator Craven’s distinction between using cameras to support an investigation and using cameras to monitor is strong. He suggests that an investigatory purpose is more likely to be upheld as a legitimate exercise of management rights and less likely to be objectionable because of its intrusiveness. On the intrusiveness issue, he explains:

Indeed, it is a misnomer to describe what the camera system does as ‘observation’ at all. It merely optically, mechanically and electronically collects, transmits and records digital information which does not constitute ‘observation’ until a human observer views the displayed or recorded images. If the cameras continued to operate but no-one viewed the images, we might still describe what was happening as ‘surveillance,’ but surely not as ‘observation.’ It is the potential for observation, not its inevitable realization, that underlies the weak analogy between camera and supervisor. (Compare the characterization of electronic surveillance as ‘inhuman’ (page 30) and indeed ‘fundamentally anti-human (page 29) in Re Puretex Knitting Co. Ltd. and Canadian Textile and Chemical Union (1979) 23 L.A.C. (2d) 14 (Ellis).)

As the Union presents its case, the main argument to the intrusiveness of the video surveillance sys-tem is its capacity for monitoring employees, whether in real time or by systematic subsequent review of the recordings. I accept the Employer’s evidence that it does not monitor employees.

Arbitrator Craven focuses on the use of the cameras rather than their mere presence. Not surprisingly then, he was uncomfortable about the lack of:

  • policy-based restrictions on the use of data (i.e. about the risk of “scope creep”);
  • the absence of a formal data retention rule; and
  • (most interestingly) the absence of rules governing union access to data.

Based on a separate finding that the employer had breached a technological change provision in its collective agreement by not engaging in discussions with the union when it expanded the system, he ordered the employer to meet with the union to engage in discussions, implying that the parties should deal with his concerns by way of mutual agreement.

Cargil Foods, a Division of Cargill Ltd. v. United Food and Commercial Workers International Union, Local 633 (Privacy Grievance), [2008] O.L.A.A. No. 393 (Craven) (QL).

All About Information Turns One – Some Reflections

I’m notorious in my family for missing birthdays, but I’ve been thinking about this one for a while. I started blogging here one year ago, and after a bit of thought, have decided to go for another. It’s been entirely rewarding, though hard work too, and I’m still energized enough to carry on.

To commemorate this anniversary I thought I’d reflect on my experience and direct my thoughts to those of you in Canadian firms who are considering blogging. I specify “Canadian” because I sense we’re a lot more conservative than our American counter-parts. I also think, even now, that there’s a lot of space out there for Canadian law blogs.  Pick a niche or create a bizarre new one like I have. It would be great to see more people get on board. I’m sounding like the now-initiated, but perhaps that’s a perspective this birthday has earned.

Here are my thoughts.

Ask first. I really did wake up in the middle of the night, open up a WordPress account and start blogging. I must have been suffering from the same disease that makes so many people post dumb things online and later regret the consequences. When it dawned on me that this might be an issue with my employer, I approached “management” and tried to plead that the blog was my purely private activity. This was too insincere an argument for me to make (a management employment lawyer after all!) and I quickly abandoned my defence and asked for mercy. Thankfully, Hicks is extremely entrepreneurial in its outlook and was happy to let me continue on.

It’s a discipline. That’s the best thing about this for me. After tracking tracking legal developments and publishing internally for years as a research lawyer, I’ve really just taken my process outside the firm and have focused more on areas that are relevant to my own practice. I have a really hard time reading a case or an article closely if I’m not forced to do something with it, so blogging is a good way for me to develop knowledge of the substantive law. Yes, learning by doing is the superior form of professional development, but most of my practice is about developing tactics and strategies and finding practical solutions. Until I get to write facta on subjects I like for at least a few hours a day, this a relatively good way to stay current.

You’re not giving anything away that isn’t worth giving away. If you do start blogging, I bet you’ll have conversations with the more traditional lawyers in your firm who will lightly imply that you’re giving away valuable information to the competition. If you do, you should tell them that information is cheap. In keeping this blog, I aggregate information, organize it into a somewhat usable form and use a bit of my own style though its communication. I like to think that I’m providing an audience of contacts and potential contacts with value though this exercise, but this is hardly the highly-specialized application of our skills that contacts turned clients demand. I’m not a subscriber to the theory that the modern business organization is irrelevant given the growth of outside networks, but I do believe there is a net benefit to engaging in a reasonable degree of extra-firm information-sharing.

It’s about marketing, not sales. Speaking about the returns, they’re hard to measure. I’ve received a number of questions from individuals who want free advice and have drawn a firm lines to avoid slipping into engagements, but I have not really received any contact that has led directly to a retainer. Is this a problem given that I justify the great amount of time I spend on this based significantly on its business benefit? Not from my perspective. I’m not fooling myself or anyone else about the business benefits of blogging, which are more about marketing and profiling than sales. For me blogging is also about relationship-building, and this has been a great vehicle for pushing relevant content to my existing contacts and some new contacts. In the most-rewarding cases I’ve been able to develop a “behind the blog” dialogue on topics of mutual professional interest.

You will need to reckon with the privacy-related ramifications of you blog. I like doing case reports because they’re not associated with a great deal of personal exposure. To be honest, posts like this one, where I come out a little more and speak in a personal voice, make me extremely uncomfortable. At the same time, I feel a natural draw towards personal exposure that’s hard to resist, and understand that the real power of online social networking is derived from the nature of the content and not just the technology.  Is a blawg really a “blawg” if its published in the style of a firm newsletter?  If you try blawging, you’ll ultimately find a level of personal exposure suits your disposition.

You’re going to self-insure. You’ll face risks of both the legal and business kind.  And though it’s fairly easy to publish within the bounds of the law of defamation, there’s about a million subtle ways to offend a member of your firm’s client base (or a member of your firm for that matter). A disclaimer is essential – and I really am not expressing the views of my employer in this blog – but in they eyes of an upset client, a disclaimer may be insufficient. I had a good track record given my former role as a research lawyer role because I was part of a team that doubled as the Hicks’s external communications department. I suspect this gives the firm some comfort as I publish away relatively uncontrolled, but I don’t have any illusions about my ultimate accountability for what I write on this website.

Thanks to everyone who has shown an interest in the last 12 months, and I look forward to this next year!

Dan

Information Roundup – 3 August 2008

Here’s an all e-discovery version of the Roundup for a change. You may want to check these out.

  • Craig Ball, “Keyword Searches: A Grimm Prognosis.” I’ve been reading Craig Ball’s comments on keyword search with great interest over the last while. He might seem slightly more conservative in his push to have lawyers train-up in search in this article given the three cases about searches gone bad which he covers. Includes good commentary on a much-discussed Maryland case called Victor Stanley. (Law.com)
  • Martin Felsky, “Principles of Litigation Management.” Martin argues that Canadian firms need to get on-top of e-discovery and its starts with good leadership. He suggests ten principles for litigation management. (Slaw.ca)
  • Denise Howell, “Cloud Computing and EULA Law.” I always enjoy listening to This Week in Law, but (despite the title) this one hit on a number of points relevant to our theme, including segments on the state of e-discovery, the Viacom v. YouTube production order and subsequently agreed-to stipulation and the production-related ramifications of “cloud computing.” (Twit.tv)
  • Peter Timmins, “UK Privacy Decision a pointer of things to come here.” Okay, not quite an e-discovery decision, though Mr. Justice Eady does consider that Mr. Mosley and “Woman A” had deleted e-mails and concludes (rather casually) that he could draw no improper inference in the context. Truth is, I spent quite a chunk of time scratching my head about something to say about the case and gave up. Now having read a good deal of the early commentary, I think I would have said something like what Peter Timmins has said here. (Open and Shut)

On a personal note, I did my last training paddle towards the lake crossing today, and I guess I’m ready because it was four hours and still felt pretty short. Max, P.J. and I are raising funds for “The Big Wild Fund,” which is being used to fund various initiatives by the Canadian Parks and Wilderness Society. If you are a regular reader of this blog please consider making a small donation. Information about our challenge and how to donate is available here. One warning: I don’t think you can make an anonymous donation; if you contribute your name and donation amount will appear on our challenge site. This is unfortunate in my view, but I encourage you to think about donating anyway, and encourage you to donate by cheque if you’re uncomfortable. One hundred percent of the money flows through to CPAWS, which CPAWS uses to fund its vision less than no more than 20% for administration and fund-raising.

I’d also like to thank Boardsports for loaning us a stand-up paddleboard. I worked at Boardsports back when I was a teenager when it was called Wind Promotions and dealt mainly in windsurf gear. Now its got all you’ll need when looking for equipment and clothing related to… well, boardsports. Thanks guys!

See ya!

Hicks Morley Information and Privacy Post – Summer edition published

My colleague Paul Broad and I have just published a new edition of the Hicks Morley Information and Privacy Post. We’ve included our regular selection of indexed case summaries (most from this blog) relating to confidentiality duties, privacy, freedom of information and the law of production and have also included a link to a newly-published paper on employee privacy entitled, “The Limits of the Application Game – Why Employee Privacy Matters.”

To download The Post please click here and for a direct link to a copy of the paper please click here.

Case Report – Balance favours disclosure of photographs on Facebook given number of plaintiff’s friends

In a judgement from last October, the Ontario Superior Court of Justice ordered a plaintiff in a motor vehicle suit to produce copies of her Facebook pages. The defendant successfully argued that the pages were likely to contain photographs relevant to the plaintiff’s damages claim, and was buttressed by the fact that the plaintiff had served photographs showing herself participating in various forms of activities pre-accident.

In balancing the interest in full disclosure against the plaintiff’s right to privacy, the Court stated:

Having considered these competing interests, I have concluded that any invasion of privacy is minimal and outweighted by the defendant’s need to have the photographs in order to assess the case. The plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to the private site.

This is a very logical, traditional and compelling statement, and is very significant given the arguments now being made for a new theory of privacy that encompasses intermediate forms of disclosure – i.e. disclosures which can be made without losing a complete privacy interest in the information disclosed.

Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.) (QL).

Information Roundup – 19 July 2008

A lazy day today spent hiding from the heat with Hugo, with Seanna heading up to the Rogers Cup to see Nadal get swarmed by fans.  Tomorrow I’ll paddle five hours, the last long paddle before I cross Lake O (Niagara-on-the-Lake to Toronto) in a couple weeks with Max from Halifax and P.J. from L.A., both who I connected with through this blog. Turns out Max from Halifax is a friend of a friend, which is exactly why I like Halifax so much.

Here are some readings that you might find interesting.

Enjoy!