The Ontario Superior Court of Justice issued an order setting aside an Anton Piller order on April 8^th. The judgement is another stressing the extreme burden on parties who seek such orders.

The Anton Piller was initially granted in 2006 in support of a departing employee claim that included allegations of fraud and breach of confidence. The Court it aside because the plaintiff failed to fully and frankly disclose material facts and failed to make reasonable inquiries into material facts. More specifically, it held the plaintiff:

• failed to ask customers whose business it claimed was lost or threatened due to the individual defendant’s actions whether they had been approached by the individual defendant;
• failed to disclose that a customer relationship on which it relied was responsible for only a 2% portion of its gross profit; and
• despite raising the difficulty in seeking production of the individual defendant’s MS Hotmail (which resided in the United States), failed to disclose that it had launched an action in Texas against the individual defendant’s new employer concurrently with its Ontario action, that it had sent a preservation letter to the new employer in conjunction with the action and that it had an agreement from Microsoft to retain the individual defendant’s MS Hotmail e-mails indefinitely.

The Court also criticized the execution of the order and, in particular, a search conducted of the purse of the individual defendant’s wife (also named). The Court said:

[The plaintiffs] were authorized to search for paper documents and electronic data related to Factor’s business, the business of Lanxess and Jean’s potential use of documents from Factor to promote his own and Bigler’s business interests. I question whether any of this material was reasonably likely to be found in Margaret Jean’s purse.

Also interesting, though it was neither challenged nor part of the Court’s consideration: the plaintiff discovered significant evidence of wrongdoing and determined the relevance of the individual defendant’s MS Hotmail account by installing spyware on his computer while he was employed.

Factor Gas Liquids Inc. v. Jean, 2008 CanLII 15900 (ON S.C.).

Still in NC, enjoying better than expcted surf. Here’s what I’ve been into lately.

• Government of British Columbia, “E-Health Statute Increases Patient Access and Privacy.” The BC government has introduced legislation billed as enabling “e-health” systems that ensure patient privacy. Hat tip to Michael Geist.
• Citzen Media Law Project, “Sykes v. Seidel.” Here’s a link to the Citzen Meida Law Project’s legal threats database entry on the Seidel subpoena. Kathleen Seidel publishes a blog called Neurodiversity on autism-related issues, and was subpoenad by plaintiffs in a austism lawsuit after posting a critique of the lawsuit and its handling. Seidel has moved to quash on a number of grounds and apparently has raised “journalists privilege.”
• Associated Press, “Threatening Graffiti Leads College to Cancel Class.” A recent campus threat response news story from the United States. (New York Times)
• Alice Mathias, “Fear and Learning on Campus.” Here is an editorial that was published in the NYT today on the Virginia Tech event’s more subtle impact on campus life. (New York Times)
• James Alan Fox, “Topics in University Security: Lockdown 101.” This editorial, also published today, criticizes emergency planning overreaction.

This is the one year anniversary of the Virginia Tech shooting. I’ve been engaged to advice on managing the privacy issues and the threat of campus violence since then. My perspective is best summarized in the attachment to this post.

Enjoy!

On March 25th, the Ontario Superior Court of Justice dismissed a motion brought by defendants after their documents and things seized under an Anton Piller order were lost by the supervising solicitor.

The disposition of the motion was strongly-driven by the defendants’ intent. The Court noted that their main reason for bringing a motion was not to attack the Anton Piller but, rather, was to seek a dismissal and damages for the plaintiffs’ role in the alleged unreasonable retention of evidence. This intent was highlighted by the defendants’ failure to attend the hearing at which the Anton Piller order was confirmed. As for the plaintiffs, their approach was to implicate an individual defendant in the loss of evidence by blaming him, for example, for failing to copy documents in accordance with an alleged agreement between the parties.

The Court held that the defendants’ had not established any basis for modifying or setting aside the Anton Piller order. It also held that the claim for damages and a dismissal of the action were premature and best resolved after a trial, except that the defendants could bring a summary judgement motion to forward their argument that the loss of evidence prejudiced their defence. On this point, it said:

The defendants therefore rely solely on the loss of the Evidence and their allegations that the plaintiffs are responsible for the loss in support of their request for a dismissal of the action. I think this is insufficient to succeed on such a motion. The loss of the Evidence by itself is not determinative of the issue of prejudice and the ultimate responsibility for the loss is irrelevant (unless the loss were due to the defendants’ actions). The important point is that there is no reason or evidence put forward by the defendants that suggests that the Evidence would have provided a defence to the plaintiffs’ allegations regarding the defendants’ business. Accordingly, the evidence before the Court on the issue of prejudice is not sufficient at this time to demonstrate prejudice that would entitle the defendants to the requested relief.

Bell ExpressVu Limited Partnership v. Echostar Satellite LLC, 2008 CanLII 12837 (ON S.C.).

This Information Roundup comes to you from the Outer Banks in North Carolina, a special place for Seanna and me because we got married here a couple of years ago. Now we have Hugo, who’s on his second surf vacation in his first year, and might even get what’s going on as Seanna and I trade off on babysitting duties and on-water sessions.

Today, Seanna windsurfed at the “Canadian Hole” while Hugo and I experienced the wonders of sand. Then I windsurfed on the ocean-side downwind to our house in shoulder to head high waves. I am not the windsurfer I used to be, but had fun anyway and didn’t break anything.

Here are some things I’ve read on my vacation.

• Scott J. Carpenter, “Immunity Under the CDA Has Its Limits According to Two Recent Federal Court Decisions.” Summarizes two recent cases dealing with the U.S. Communications Decency Act and its speech-protecting provision – section 230 . I think internet publication and Web 2.0 is going to drive developments in privacy law for the next while, so these types of stories are of interest to me. (Proskauer Rose)
• Michael Simon, “Declaratory Judgement Approach to Burdensome Pre-Litigation Demand Tried and Rejected.” A good analysis of a novel case in which a party faced with an onerous pre-litigation document hold letter brought an application to seek protection that was dismissed for want of jurisdiction. (E-Discovery Team)
• K&L Gates, “Court Sets Protcol for Forensic Examination of Employment Discrimination Plaintiff’s Home Computers.” I’m particularly interested in home computer cases. The summary of a American case from late March includes a cut of the inspection order. (K&L Gates)
• Tresa Baldas, “AGs Tell Companies: Shred it, or Regret it.” A good reminder of the lowest of low hanging data security fruit. (Law.com)
• Pamela Hess, “Citing Academic Freedom, Law School Dean Defends Professor Who Wrote ‘Torture Memo’.” This is a news story on this memorandum, by Berkeley Law School Dean Christopher Edley Jr. (Law.com)
• The Sedona Conference, “Commentary on ESI Evidence & Admissibility.” I confess that I haven’t finished reading this yet, but I’ve been sitting on this post for too long waiting to find some quiet time to digest this 28-pager. It’s amazing this content is free. (The Sedona Conference)

Enjoy!

On April 2nd, the Alberta Court of Queen’s Bench issued a significant judgement on the Alberta Health Information Act, quashing an order by the Alberta OIPC that prohibited disclosure of prescription data to IMS Health.

The Court made two substantive findings. First, it held that the OIPC did not err in limiting the scope of its investigation to disclosures to IMS only, even though a determination on the issue it was investigating could affect other related programs and other parties. Second, and more significantly, it held that the OIPC erred in finding that the Act required consent to disclose data that could be used to profile or detail a prescriber – namely, information about how a prescriber chose to diagnose and treat a patient of a particular age, with a particular condition, and specifically what medication was used, in what dosage, and for how long.

The Court declined to make the order on the basis of IMS’s broader arguments about the nature of “work product information” and health information custodians’ right of expression, so its judgement is technical and confined in its significance (though it’s a nice statutory interpretation decision).

In essence, the Court held that the OIPC read a limitation on the “business card exception” in the definition of “health services provider information” too literally and too broadly in light of the exhaustive statutory definition of “health services provider information. ” This limitation – in section 37(2)(a) – limits the disclosure of business card information (e.g. a prescriber’s name, in the circumstances) where it would reveal “other information about a health services provider.” The Court held that “other information” must mean “other health services provider information” or “other information about the health services provider that cannot be disclosed under the HIA”:

A reasonable approach to statutory interpretation required the Commissioner to recognize that the presumption of consistent expression is only one indication as to the intention of the Legislature. There are also indications of the intention in the statutory context of the HIA. A reasonable decision-maker must consider the competing indications. Is it more likely that the Legislature intended “other information about the health services provider” to have a different meaning than “other health services provider information about the health services provider” because different words are used? Or is it more likely that the Legislature intended the qualification to an exception in ss. 37(2)(a) to drastically expand the scope of protected information under the HIA and to render the apparently exhaustive definition of “health services provider information” virtually meaningless. There is really no contest. The different language used pales in significance when compared with the overall scheme of the HIA. The only reasonable interpretation, when the full context is considered, is that “other information about the health services provider” in s. 37(2)(a) means “other health services provider information” or “other information about the health services provider that cannot be disclosed under the HIA”.

Interpreting s. 37(2)(a) in this way gives the subsection a limited but real role within the scheme of the HIA. It means that the Act’s permission to custodians to disclose business card information without consent applies only where that information does not result in prohibited disclosures under the HIA. Business card information is likely to occur in the same context, perhaps in the same document as other health services provider information. Indeed, it may be the business card information that causes the other information to be individually identifiable. In the absence of s. 37(2)(a), custodians might purport to comply with the HIA by editing out prohibited categories of information while still disclosing the business card information. Because of s. 37(2)(a), business card information in this context must not be disclosed if it would “reveal” the other prohibited information. This is, as I indicated, a limited role. But a limited role is much more to be expected with respect to a statutory provision that occurs as a qualification to an exception, rather than a role that drastically expands the scope and basic definitions of the HIA.

The Ontario Personal Health Information Protection Act does not protect the personal privacy of health care practicioners as does the Alberta health privacy statute. As for PIPEDA, the Privacy Commissioner of Canada has found that prescriber data is “work product information” rather than “personal information.”

IMS Health Canada, Limited v. Alberta (Information and Privacy Commissioner), 2008 ABQB 213 (CanLII).

On March 7th the Federal Court denied a motion for relief from the implied undertaking rule to allow documents produced in one action to be used in another related action.

The Court held that the defendant (and plaintiff by counterclaim) did not meet the strict standard of “necessity” established by the Supreme Court of Canada and Lac d’Amiante du Québec Ltée and recently endorsed in Juman v. Doucette (see summary here). The Court was particularly concerned about prejudice to the opposing parties in the other action, where the trial was set to commence just over a week after the motion was heard. It said:

The impact on Servier, even though it is not a party to the Ramipril Action, must also be considered. As the Plaintiff and Defendant by Counterclaim to the Perindopril Action, it is self-evident that Servier is one of the “parties involved” (Lac d’Amiante, above at para. 77). For this motion, Apotex has selected groups of documents from the discovery process in the Ramipril Action. As a third party, Servier is unable to review the entire discovery record to determine whether there are other documents or transcript references that might assist it in responding to Ramipril Documents that would now become available in the Perindopril Action. In this, I see the potential for serious prejudice to Servier. In response, Apotex asserts that it has only “selected” entire groups of documents (for example, all of the semi-annual reports and all of the pre-Troy lab notebooks). Even accepting that this is true, I do not find this explanation to be sufficient to dissipate the potential prejudice. There may be other documents outside these defined “groups” that could assist Servier. While Servier may have tools at its disposal to overcome the potential prejudice (although none have been described), the late hour of this motion closes that possibility. Apotex has not persuaded me that Servier would not suffer any prejudice; indeed, I believe that it is more likely than not that Servier would, at best, be at a disadvantage and, at worst, be seriously prejudiced.

Further, the importance of this potential prejudice or disadvantage to Servier is heightened, in my view, by the fact that other means could have been pursued by Apotex to obtain the Ramipril Documents. Sanofi and Schering have highlighted at least five different ways — including methods explicitly spelled out in the Federal Courts Rules, S.O.R./98-106 — in which Apotex could have obtained the Ramipril Documents while still preserving the implied undertaking of confidentiality.

The Court did allow the applicant to use one set of documents that had been broadly disseminated.

Sanofi-Aventis Canada Inc. v. Apotex Inc., 2880 FC 320.

This 2007 Canadian Human Rights Tribunal decision illustrates the limits to advancing drug testing claims under human rights legislation.

The Tribunal dismissed a discrimination and harassment complaint brought by an employee who was terminated and then reinstated on the condition he abstain from using drugs and alcohol and engage in unannounced testing. The employee did not claim he suffered from an addiction, but rather, claimed the reinstatement contract created the perception that he suffered from alcoholism and was disabled. The Tribunal disagreed, finding that the contract was imposed because of objective behavior and not perceived disability. It stated:

I do not believe that [Entrop and TD-Bank a.k.a. Canadian Civil Liberties Assn.] apply to this case. For example, in the Canadian Civil Liberties Assn case, the Court found that the drug testing policy raised the likelihood of drug-dependent employees losing their employment. Consequently, the discrimination was against those employees who were drug dependent. The complainant in this case is not alcohol or drug dependent. Therefore, the respondent’s policy does not impact on him in the same manner that the drug testing policy impacted on the employees tested in the Canadian Civil Liberties Assn. case.

See this post on the recent Kellogg Brown & Root case, also on the issue of perceived disability.

Witwicky v. Canadian National Railway, 2007 CHRT 25.

Last Thursday and Friday I attended and spoke at the Canadian Association of University Business Officers workshop on Emergency Preparedness. Perhaps it was the inspirational kickoff by M. Richard Fillion of Dawson College, but it felt like a very special event and it was a pleasure to collaborate with a group of experienced administrators who are obviously committed to tackling a tough challenge.

I spoke on the legal perspective on managing on-campus violence, with a focus on the need for information sharing. Dr. Philip Klassen of the Centre for Addiction and Mental Health’s Law and Mental Health Program and Dr. Phil Wood, Dean of Students McMaster University, gave great presentations on the same subject from their own perspectives. Dr. Wood has also blogged about the event here.

Here is the full text of my speech, entitled “A Legal Perspective On Managing the Threat of On-Campus Violence.” I’ve linked to the various references that came up in the speech and the following Q&A below. I hope these are of use to the attendees and others.

• The Virginia Tech Review Panel Report. I particularly recommend Chapter 4.
• United States Secret Service and United States Department of Education, Implications for the Prevention of School Attacks in the United States. This stresses the efficacy and importance of threat assessment systems.
• Robert Bickel and Peter Lake, The Rights and Responsibilities of the Modern University. An important book on universities’ duty of care.
• IPC/Ontario, Privacy and Video Surveillance in Mass Transit Systems: A Special Investigation Report. This has a significant statement on special constables and the meaning of “law enforcement” in FIPPA.
• United States Department of Education, Family Educational Rights and Privacy Act (Proposed Amendments).
• Re Hamilton Health Sciences and Ontario Nurses Association, 91 C.L.A.S. 228 (Surdykowski). This recent case is about the collection of medical information through standardized forms for the purposes of short-term disability benefit administration. The collection of medical information for individual risk assessment and accommodation purposes is a different matter, but there are ideas in here that are significant and restrictive. I raised it in questioning whether employers should consider bargaining for some clarity on their right to collect. My earlier blog post on this case is here and I have blogged on medical information management here.
• Young v. Bella, 2006 SCC 3. This case illustrates the potential liability that can be mitigated by formal threat assessment systems.

There was a really good comment after the speech from Mike from Queen’s University, who thought the my use of the term “care team” was inappropriate given the role the university is really playing and the sensitivity about taking on an overt caregiver role. I completely agree, and from now on will work the term “assessment team” or “CUBIT” – for Comprehensive Behavioral and Threat Assessment Team – into my language. Thanks!