On February 22nd, the Ontario Superior Court of Justice dismissed a Charter application that claimed RBC violated section 8 of the Charter in investigating a case of mortgage fraud.

RBC had collected information from T-D Bank which allowed it to pursue an alleged fraud. Both banks are members of the Bank Crime Investigation Office of the Canadian Bankers Association, a designated “investigative body” under PIPEDA. They relied on sections 7(3)(d)(i) and (h.2) of PIPEDA in sharing the information. The Applicants took issue with these provisions and RBC’s actions taken in reliance on these provisions. They read:

(3)… an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is…

(d) made on the initiative of the organization to an investigative body… and the organization…

(i) has reasonable grounds to believe that the information relates to a breach of an agreement or a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed…

(h.2) made by an investigative body and the disclosure is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province…

The Court held this grant of discretion to make disclosures did not necessarily threaten Charter rights, so was not unlawful itself. It also held that RBC was not acting as a government agent in its investigation and therefore was not bound directly by the Charter.

Royal Bank of Canada v. Welton, 2008 CanLI 6648 (ON S.C.).

On February 28th, the New Brunswick Court of Appeal released the latest award in a long-running e-discovery dispute. It held that the defendants ought to have sought leave to appeal a fairly broad order to provide access to its “computer system.”

The impugned order was made in July 2006 by Savoie J. of the New Brunswick Court of Appeal. The defendants did not appeal, but also did not comply, and in 2007 the plaintiffs brought a motion for contempt. The motion was heard by Lavigne J., who held she could not upset Savoie J.’s order in a collateral motion and rejected the defendants’ argument that costs should be shifted due to the burden of providing access to electronic records. She reserved on the matter of contempt, later rejected in January 2008 (and reported here).

The Court of Appeal agreed with Lavinge J.’s approach. It stated:

In the present case, it may be that the Rules of Court were inadequate to resolve the issues raised by the plaintiff’s original motion and that the Savoie J. [sic] might have been well advised to fashion some relief inspored by [The Sedona Canada Principles and the Ontario Guidelines]. It may be that he could have done so under the authority of Rule 2.04, which provides that “[i]n any matter of procedure not provided for by these rules or by an Act the court may, on motion, give directions.” However, these questions do not arise in this appeal since no one sought leave to appeal Savoie J.’s decision.

Spielo Manufacturing Inc. v. Doucet, [2007] N.B.J. No. 510 (QL) (N.B.C.A.). [Decision not yet published on CanLII.]

The Supreme Court of Canada unanimously allowed an appeal in Juman v. Doucette today (indexed at the BCCA as Doucette v. Wee Watch). It held that the implied undertaking rule prohibits a party from making a bona fide report of criminal conduct to law enforcement without seeking court approval.

The underlying action was a negligence claim against a day care and day care worker which was filed after a child suffered a seizure while under care. The police investigation was ongoing, but the police had not yet laid charges by the time the day care worker’s examination for discovery was scheduled. The day care worker filed a motion to request an express restriction on disclosure of her transcript and the Attorney-General brought a competing motion seeking to vary the implied undertaking to allow disclosure of the discovery transcript to the police.

The chambers judge held that both motions were premature but declared that the A-G and the police were under an obligation not to cause the parties to violate their undertakings without the day care worker’s consent or leave of the court.

The Court of Appeal allowed an appeal of this order. It acknowledged an exception to the undertaking when disclosure is necessary to prevent serious and imminent harm and then went further to permit the disclosure of suspected crimes to law enforcement without court approval in non-exigent circumstances.

Binnie J. writing for the majority of the Supreme Court of Canada, favored the chambers judge’s approach. He held that giving litigants a discretion to make bona fide reports to law enforcement was a recipe for conflict:

This difficulty is compounded by the fact that parties to civil litigation are often quick to see the supposed criminality in what their opponents are up to, or at least to appreciate the tactical advantage that threats to go to the police might achieve, and to pose questions to the examinee to lay the basis for such an approach: see 755568 Ontario Ltd., at p. 656. The rules of discovery were not intended to constitute litigants as private attorneys general.

More generally, Binnie J. made a number of statements that favour a high standard for relief from the implied undertaking rule, a stance he said is justified because examinees are subject to compelled testimony. His award also includes a nice general discussion of the rule, its basis and its exceptions.

In Ontario a litigant’s privacy interest in discovery transcripts and other un-filed pre-trial productions is protected by Rule 30.1.01, but the analysis is the same. In fact, the Court considered the limited Ontario jurisprudence in endorsing a rigorous undertaking over the protection of the public interest in the detection and prosecution of crimes. See in particular: 755568 Ontario Ltd. v. Linchris Homes Ltd. (1990), 1 O.R. (3d) (G.D.) and Perrin v. Beninger, 2004 CanLII 18347 (Ont. S.C.J.).

Juman v. Doucette, 2008 SCC 8.

Looking forward to a nice paddle today, then up to my parents’ for my dad’s birthday. Happy birthday dad!

Here’s what I’ve been into in the last couple of weeks.

• Craig Ball, Clumsy Redaction Can Spell Negligence. I scan lots of the stuff I read on-screen, but if its worth fully digesting will print and highlight. I always print and highlight e-discovery articles written by Craig Ball.
• Patrick Kampert, In the era of NO PRIVACY The secret is honesty. The idea expressed in this title is a challenging one for privacy advocates. Daniel Solve counters it in this article. (Chicago Tribune)
• Gregory Fordham, Sedona Conference Releases Best Practices Update: More Is Still Needed. Mr. Fordham, a forensic IT specialist, criticizes the June 2007 update to The Sedona Principles, writing in favor of broader preservation, greater openness to inspections and other more technical points about the production of native files.
• David Ardia, Coalition of Media Organizations Challenges Prior Restraints in Wikileaks Case. Wikileaks is a website on which people can anonymously post leaked documents in the name of good governance in the public and private sectors. It was shut down by a California court several weeks ago in litigation brought by a Cayman Islands bank. David Ardia of the Berkman Center for Internet & Society has done some choice coverage, this blog post being published before the order was vacated.
• NPR Intelligence Squared U.S., Better More Surveillance than Another 911. Audio of a relatively spirited debate. I think it was “no” advocate Nadine Strossen of the ALCU, but Andrew McCarthy of the Foundation for Defence of Democracies also did well for the “yes” side.

On February 20th, the New Brunswick Court of Appeal held that State Farm Mutual Automobile Insurance Company did not need leave to appeal a January 30th order by the New Brunswick Court of Queen’s Bench. The Queen’s Bench had stayed State Farm’s application, which challenged the Privacy Commissioner’s jurisdiction to investigate its surveillance of a plaintiff in a motor vehicle claim. My summary of the January 30th case is here.

State Farm Mutual Automobile Assurance Company v. Canada (Privacy Commissioner), 2008 CanLII 6112 (NB C.A.).

On February 14th, the Information and Privacy Commissioner/Ontario held that Queen’s University could deny access to records that would reveal the identities of three female complainants whose harassment complaints led the University to issue a trespass notice to an individual who was not a member of the university community. It noted that the requester had engaged in persistent and harassing behaviour towards the complainants, held there was sufficient evidence to conclude that the requester’s motives were not benevolent and applied the exemptions in sections 14(1)(e) and 20 of FIPPA. It further held that disclosure would be presumed to be an unjustified invasion of privacy under 21(3)(b) (which protects information compiled as part of an investigation into a possible violation of law) and that that “absurd result principle” did not justify giving the requester access to e-mails he had sent the University in the course of its investigation.

Queen’s University (Re), 2008 CanLII 5953 (ON I.P.C.).

On January 29th, a panel of the Ontario Superior Court of Justice (Divisional Court) dismissed a application for review of drug testing arbitration decision in which Imperial Oil was held to have violated a collective agreement by implementing random and unannounced drug testing for cannabis impairment.

The policy challenged at arbitration was the same policy that had been upheld by the Ontario Court of Appeal in 2000 in Entrop. Based on Entrop, and the Court of Appeal’s specific finding that random alcohol testing in safety-sensitive positions did not violate the Human Rights Code, Imperial Oil re-instituted random drug testing for safety-sensitive positions by using a new testing technology that could determine current impairment by way of a saliva test.

In December 2006, the majority of an arbitration board chaired by Arbitrator Michel Picher upheld a grievance which challenged the re-implemented random drug testing policy. The board held that the Union was not barred from challenging random drug testing despite being barred from challenging random alcohol testing (based on an equitable doctrine that bars claims after inordinate delay) because random alcohol testing by breathalyzer and random drug testing by saliva test were qualitatively different tests. A key factor, as Mr. Picher’s wrote, was that the saliva testing processing in use by Imperial Oil did not provide an immediate, on-site reading of impairment. The board also found that sampling by buccal swab was more invasive than sampling by breathalyzer and distinguished Entrop by finding that the Court of Appeal’s decision was made in consideration of rights granted under the Human Rights Code rather than a collective agreement.

The Divisional Court rejected Imperial Oil’s argument that the board erred by amending the collective agreement and by relying on unsupported findings of fact. It also held that the board did not made a patently unreasonable decision given the Court of Appeal’s decision in Entrop. It said:

The Board explained why it found the testing to be an invasion of privacy and an infringement of the rights under the collective agreement. As a result of its interpretation, employees under the parties’ collective agreement receive greater protection than they would have under the Code because of their unionized status. Such an interpretation is not inconsistent with the Code, which provides minimum standards for those covered by it. However, the Code does not provide an exhaustive guide as to the meaning of dignity and respect in the workplace generally.

Based on this reasoning, the Divisional Court held that the board did not err in assessing the policy against the somewhat unique anti-discrimination clause in Imperial Oil’s collective agreement, nor did it err in assessing Imperial Oil’s exercise of management rights.

There are some limited factual bases on which other employers may attempt to distinguish the Imperial Oil arbitration decision. Despite these bases, Mr. Picher’s principled attack on random drug and alcohol testing (now upheld by the Divisional Court) is a feature which makes the decision both significant and problematic for employers.

Imperial Oil Ltd. v. Communications Energy and Paperworkers Union of Canada, Local 990, [2008] O.J. No. 489 (QL) (S.C.J.).

On January 21st, Master MacLeod of the Ontario Superior Court of Justice issued an order which allowed the parties to a complex e-discovery to proceed. He cited the Sedona Canada Principles and issued a limited order after considering the potential costs and the impact on individual privacy rights that would be associated with a definitive order for more fulsome production.

In litigating a class action claiming product liability damages caused by a heart valve, the plaintiffs brought a motion to challenge the defendants’ production of (1) two clinical trials databases which included adverse events data, (2) questionnaires used to collect adverse event data and (3) a data entry database associated with the adverse events databases. The two clinical trials databases were maintained by the University of Pittsburgh (a non-party) pursuant to a research agreement. Likewise, the questionnaires were held by clinicians thoughout the world pursuant to research agreements. The defendants’ legal rights to the data entry database (called “POP”) were less clear, a significant complication given the University’s residence in a foreign jurisdiction.

There was no dispute that 28 “freezes” of the adverse events databases (representing data stores at a point in time) included highly relevant information, but the plaintiffs claimed that the defendants’ production effort was too slow and that the defendants’ manner of production did not allow them to assess the data’s validity. One of the defendants’ key objections: the University had redacted patient initials and birth-dates from the production. The University did not adduce evidence on the motion, but the defendants argued on the University’s behalf that it would be exposed to liability and a potential breach of U. S. federal or state privacy legislation if it provided the data in unredacted form. The defendants also raised the costs the University was bearing and would additionally bear if further, more fulsome production was to be ordered.

Master MacLeod considered the competing demands and said that the production “solution” should meet four criteria. He said:

• The data produced to the plaintiffs must be substantially the same data as that which has been reviewed by the defendants’ own experts. If not then the plaintiff and defendant experts are being asked to draw conclusions based on different information.
• The forensic continuity of the data must be demonstrable such that any issues about authenticity or accuracy can be readily answered.
• The process of redaction must not leave the data less meaningful or useful. While the exact birth-dates and initials of the patients may not be necessary to analysis of data, it will for example be critical that data attributable to specific patients can still be tracked and where there are associated slides or tissue samples or other medical records produced in the litigation this can be matched to the data in the same way as previous to the redaction.
• The process of redaction must not unduly delay production.

Master MacLeod held that the current manner of production did not meet the criteria. In particular, he took exception to the fact that the defendants’ experts were apparently working with original and unredacted data, which he said could put the plaintiffs at a disadvantage. The defendants’ use of unredacted information may also have led him to conclude that patient privacy, while warranting protection, may ultimately need to yield to “the imperative of justice.”

Master MacLeod’s order was limited in that it merely established a process and criteria to allow the e-discovery to proceed. The key part of the order, for example, read:

In the event the data cannot be produced in redacted form in a timely fashion or if the redactions can be shown to compromise the integrity of the data or if the redacted data is significantly different than the data available to the defence experts, the plaintiff expert is to be given access to complete and accurate copies of the 28 data freezes as well as a current set of data.

There are other aspects of the order that are of significance. For example, Master MacLeod reasoned that the POP database (being potentially controlled by a non-resident) was analogous to deleted or residual electronically stored information as that term is used in Sedona Canada Principle 6. He said, “Only if [the plaintiffs] cannot answer the questions accurately and there remain important unexplained anomalies in the AVERT data should it be necessary to consider production of the POP database.”

For more on the Sedona Conference‘s Sedona Canada Principles and for a summary of Master MacLeod’s 2006 order in this same case, see the LexUM E-Discovery Canada website.

Andersen v. St. Jude Medical Inc., [2008] O.J. No. 430 (QL) (S.C.J.).

Second weekend out of the water in a row, and I’m feeling a little on edge. Today would otherwise be a surfing day but there’s some ice build-up along the shore that causes too much backwash to warrant getting in the water. March typically brings blue skies and calm winds for great paddles though, and its just around the corner.

Here is what I got into this week that you may find interesting.

• Al Baker and Amanda Hartocollis, Confidentiality Hinders Police in Therapist’s Killing. Ought law enforcement officials be given a broad production order to search patient records as part of a care giver’s murder investigation? That’s the issue raised in this news story. (New York Times)
• Law in Action, Justice Scalia in uncompromising form. I think the Scalia BBC interview will be one of the most interesting legal podcasts in 2008. If you’re having problems downloading from this link, it’s also on iTunes right here. (BBC News)
• L.A. Theatre Works, Top Secret: The battle for the Pentagon Papers (Panel Discussion). This is a great podcast on iTunes U. The panelists (Pamela Karlan and Philip Tubman with moderator Alan Acosta) reflect on the Pentagon Papers affair as well as how the tension between freedom of the press and government secrecy is playing out today.
• Alex Cameron and Julie DesBrisay, Privacy-based Limits in Litigation and Electronic Discovery. An overview of the relevant Canadian law. (Canada Bar Association)
• Ralph Losey, When and why should you start an e-discovery team? Mr. Losey directs this question to in-house counsel. He suggests that organizations should rely on intact teams and established processes rather than exposing themselves to the bumps that can happen when e-discovery is handed over to the litigation firm that’s brought in on a specific matter. A significant thought for those inside and outside of law firms who care about e-discovery as a business market.

Of course, there have been a number of violent incidents at American schools in the past couple weeks, including a shooting this week at Northern Illinois University. Thus far, it looks like the Northern Illinois event raises issues about plant/physical security and gun control rather than managing students at risk, but it’s probably a good time to re-link to my and my colleague Catherine Peters’s perspective on the latter issue. We published this short client update after Virginia Tech, and since then have been given some opportunity to provide guidance to colleges and universities as they work on managing privacy compliance issues so they don’t impede the development of protective threat assessment and management systems. It’s been good to work on a subject so important, but I’m nonetheless saddened and concerned by the recent events.

[Thanks to “Steve” for the tip on linking to iTunes.]