In the first case to consider the new exclusion for research-related records in the Ontario Freedom of Information and Privacy Act, the IPC held that it has jurisdiction to order production of records claimed to be excluded and otherwise inquire into the claim. The University had resisted production of records in four requests where the research-related nature of the records was clear on the face of the requests.
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Case Report – Investigator to suspect duty of care recognized by SCC
On October 4th, a 6-3 majority of the Supreme Court of Canada held that an investigating police officer owes a private law duty of care to the suspect under investigation. This is a duty of care case and not directly about information and privacy. There are, however, a couple of points of significance to readers of this blog.
First, investigations obviously involve the collection of personal information, and the new duty will inform such collections. Unlike section 8 of the Canadian Charter of Rights and Freedoms, which only operates to restrict the collection of information, the new duty could conceivably require its collection. In fact, in this case one of the allegations was that the police breached their duty of care by failing to re-investigate after receiving exculpatory evidence after charges were laid. Based on the majority’s reasoning, there is no reason why a private investigator or a member of a company’s audit or security staff would not be found to be subject to an analogous duty quite apart from any factors related to the underlying relationship between the investigator’s principal and her suspect.
Second, this is the first time the Supreme Court of Canada has commented on the important Jane Doe duty to warn case, which was relied upon by the majority (of five judges) at the Court of Appeal in recognizing the new duty. Writing for the majority of the Supreme Court, McLachlin C.J.C. said that Jane Doe was not analogous and noted that there is significant debate over the content and the scope of its ratio. For the minority, Charron J., went further and explained:
Hence, the trial judge in Jane Doe held that where the police are aware of a specific threat to a specific group of individuals, the police have a duty to inform those individuals of the specific threat in question so that they may take steps to protect themselves from harm. As Moldaver J. (as he then was) said, speaking for the Divisional Court in confirming that the action could proceed to trial, “[w]hile the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk”: Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 72 D.L.R. (4th) 580, at p. 584. Hence, Jane Doe cannot be read to stand for the wide proposition that the police owe a general duty of care to all potential victims of crime. Such an interpretation would ignore the fact that there must be more than mere foreseeability of harm before a duty of care will arise; there must also be sufficient proximity between the parties and the absence of policy considerations negating the existence of any prima facie duty of care.
Case Report – Pornographic images to be preserved but not produced
On October 2nd, the U.S. District Court for the District of Columbia ordered a plaintiff in a harassment suit to preserve six pornographic images portraying homosexual acts and allow one of the defendant’s lawyers to inspect the images.
Magistrate Judge Facciola accepted that the images were relevant to the defendant’s claim that the alleged harassment was “unwelcome.” (The test for harassment under Canadian law also includes a subjective component.) In the his view, however, relevance alone did not justify production because of the plaintiff’s competing privacy interest and because the images would not clearly be admissible at trial. In response to the defendant’s argument that a party to litigation is entitled to the production of evidence that is “reasonably calculated to lead to the discovery of admissible evidence,” Magistrate Judge Facciola held that the defendant’s purpose for seeking the images (which was to admit them as evidence of the plaintiff’s own standard of behaviour) meant that the issue of discoverability and the issue of admissibility were inseparable.
Case Report – Fiduciaries may prepare to depart
There is a line of case law in which Canadian courts have held that “ordinary employees” can take steps in preparing to compete post-departure without violating their duty of loyality and fidelity. In this August 17th Saskatchewan Court of Appeal cause case, the court held that fiduciaries may also take such preparatory steps provided they do not usurp a corporate opportunity or otherwise breach the trust upon which their fiduciary status is based. In other words, evidence of preparation alone is not enough to prove a breach. The court said:
Applying the case law to these activities, the trial judge did not err in saying that Mr. Fleming did not breach the fiduciary duty owed to his employer. The steps taken were of an exploratory nature only and fall easily into the category of contemplation and casual discussions with others. I reach this conclusion even though these were activities that would have resulted in a business capable of competing directly with Ryly’s, if they had come to fruition. To use Professor Flannigan’s analysis, however, Mr. Fleming did not reach the point of opportunistically diverting his employer’s resources to his or her own self interest rather than for the limited purpose authorized by the employer. No resource belonging to the employer was used in Mr. Fleming’s activities.
Calyniuk Restaurants Inc. v. Fleming, 2007 SKCA 85 (CanLII).
Case Report – Production of hard drive ordered
On September 11th, the Ontario Superior Court of Justice ordered the production of a forensic image of a hard drive. Although not clear on the face of the endorsement, this appears to be an order for the production of a departed employee’s former work hard drive.
The Court saw the production order as an efficient means of producing accessible metadata and noted there was no evidence that the production order would lead to the disclosure of confidential or privileged information:
The cost of redacting the non-relevant documents and associated metadata is expensive and time consuming and it is efficient and cost effective to simply reproduce the entire hard drive in its original form. Rule 1.04(1) of the Rules requires the court to liberally construe the Rules to secure the just, most expeditious and least expensive determination of the proceeding on its merits. There is no evidence to suggest that the non-relevant documents are sensitive, confidential or prejudicial in any way such that Hummingbird might be entitled to some form of protection or to warrant the ordering of the redaction, which is a costly exercise.
The Court also presumed (based on the plaintiff’s prior production of paper records from the hard drive) that production of the hard drive itself would produce additional relevant metadata:
While there was no evidence as to the precise nature of metadata, it seems to me that metadata is “data and information in electronic form”. Hummingbird has determined that certain of the documents located on the hard drive and certain of the metadata was relevant. In my view, once Hummingbird has determined that a particular document is relevant, the metadata in relation to such document should be produced. In my view, the metadata is akin to a “time/;date stamp” affixed to a letter or the “fax header” that indicated the time/date of faxing and receipt.
As the Court noted, it made its order without the benefit of affidavit evidence from either party and without the benefit of hearing submissions on any case law on the proper scope of production of records in electronic form.
Case Report – Deemed undertaking protects against disclosure
On September 10th, a panel of the Divisional Court held that a motions judge erred in ordering a plaintiff in a disability insurance action to disclose a defence medical report and surveillance video that were prepared for and disclosed to the plaintiff in a prior tort action. The motions judge had ordered disclosure subject to the deemed undertaking’s constraint on use. The Divisional Court held that the disclosure order, absent an exercise of discretion under sub-rule 30.1.01(8), offended the rule. It also held that the reference to “use of evidence obtained in one proceeding” in sub-rule 30.1.01(6) does not support disclosure subject to a constraint on use:
The motion judge was concerned that under sub-rule 30.1.01(6) one could not use evidence from another proceeding to impeach the testimony of a witness, unless such evidence had been disclosed and therefore, impliedly, the Rule cannot be read to prohibit disclosure, but merely to restrict the use of such evidence once disclosed. We are of the view that sub-rule (6) allowing evidence from another proceeding to be used for impeachment refers to evidence which is lawfully in the hands of the examining party. Sub-rule (6) refers to “evidence obtained in one proceeding …”. We agree with the appellant’s submission that sub-rule (6) does not provide for or require the disclosure of protected evidence for use in impeaching testimony. It merely provides for the limited use of such evidence, when it is lawfully available.
Kitchenham v. AXA Insurance Canada, 2007 CanLII 37892 (ON S.C.D.C.).
Case Report – Publication of teaching evaluation data lawful
Arbitrator Brent held that the University of Windsor did not violate its faculty collective agreement or the Ontario Freedom of Information and Protection of Privacy Act by publishing teaching evaluation scores on a secure network for access by students and other members of the university community.
She made three findings. First, she held that the change in practice did not breach a frozen practices provision in the collective agreement because the publication condition (freedom from publication, as was argued) was not fundamental to the employment relationship. Second, she held that the express collective agreement restriction on disclosure of faculty personal information did not apply because the information disclosed was not “personal information” under the collective agreement. In reaching this finding, she relied on permissive collective agreement language that referred to the use of teacher evaluation data to construe the term “personal information.” Finally, she held that FIPPA did not apply based on its employment-related records exclusion and the fact that the data was used in the University’s promotion, tenure and renewal process. In rejecting the Association’s argument that student use of the data brought the records under the auspices of the Act, she said:
To argue that it ceases to become a “labour relations” or “employment-related” matter once it is made available to the students would in my view have the effect of excluding SET from FIPPA when it is used for employment related purposes but then including it when it is used to provide information to students. Such a result would be contrary to the Court of Appeal’s decision that once it is determined that FIPPA does not apply to certain material, then that material is exempt from FIPPA for ever.
University of Windsor and University of Windsor Faculty Association (Re) (19 February 2007, Brent).
Case Report – Court says consensual disclosure a principle of fundamental justice
Yesterday, the Ontario Superior Court of Justice invalidated Ontario’s new adoption disclosure regime, which opened past and future adoption records to searching adult adoptees and birth parents notwithstanding individual consent. The judgement contains a significant discussion of how section 7 of the Canadian Charter of Rights and Freedoms restricts government disclosure of personal information.
The applicants, three adopted persons and a father who was recorded as a birth parent in government records despite some uncertainty about his paternity, objected the the adoption disclosure regime brought in by the provinces Adoption Information Disclosure Act. In short, the Act allowed adult adopted persons to obtain information that could be used to identify their birth parents and allowed birth parents to obtain similar information in respect of their children who had reached 19 years of age. These disclosures could be made without consent, but the regime did feature two protections. Adopted individuals and birth parents could file a “no contact” notice, in which case thier searching parents and adoptees would be restricted from contacting them despite receiving information that would allow for contact. Adopted individuals and birth parents could also apply for a non-disclosure order, to be granted in exceptional circumstances to protect against “sexual harm” or “significant physical or emotional harm.”
Mr. Justice Belobaba held that the regime violated the applicants’ section 7 rights. His key factual determination was that the applicants had established a reasonable expectation of privacy in their adoption records based on the history of the adoption regime: “Since 1927, the statutory framework in Ontario has been predicated on confidentiality.” Based on this finding and the principles articulated by the Supreme Court of Canada in R. v. O’Connor, Belobaba J. found that the applicants’ liberty interest was engaged by the propsetive dislcosure of their identifying information. He then went on to find that the applicants’ had been deprived of this interest in a manner inconsistent with the following newly-articulated principle of fundamental justice:
Where an individual has a reasonable expectation of privacy in personal and confidential information, that information may not be disclosed to third parties without his or her consent.
Addressing the seeming strictness of this principle, Belobaba J. suggested that governmental interests in disclosure may be partly managed based on the “reasonable expectation of privacy” qualifier, which he characterized as a manageable and predictable legal principle. Beyond this, he suggested that governments should be responsible for justifying non-consensual disclosures under the Charter‘s saving provision.
Counsel for the Attorney-General raised some concerns about the need to balance interests in the process of formulating a principle of fundamental justice. It wasn’t clear to me if the submissions on this point were directed at the broadly stated “right to privacy” principle or at the more refined Suggested Principle [as quoted above]. In any event, let me set out my understanding of balancing at the section 7 stage of the analysis.
The balancing of individual and societal interests within section 7 is only relevant when elucidating a particular principle of fundamental justice – and here the relevant intersts were balanced using language such as “reasonable expectation of privacy.” Once the principle of fundamental justice has been elucidated, however, it is not within the ambit of section 7 to bring into account further societal interests, such as the rights of the searching adoptee or birth parent or the implications for government record-keeping etc. These considerations will be looked at, if at all, under section 1, where the Crown has the burden of proving that the impugned law is demonstrably justified in a free and democratic society.
On the facts and despite the two protections in the Act, Belobaba J. held that the government had not met its section 1 onus and issued a declaration of invalidity.
Cheskes v. Ontario (Attorney-General) (19 September 2007, Ont. S.C.J.).
Case report – Full access to hard drives ordered
On August 31, the Alberta Court of Queen’s Bench declared that the plaintiff in a departing employee case was entitled to enforce a default order that allowed it direct access to a number of hard drives it had seized earlier in executing an Anton Piller order.
The plaintiff was granted an Anton Piller order at the outset of litigation. It seized hard drives but did not inspect them.
As the litigation proceeded, a case management judge ordered the defendants to serve and file an affidavit of records by a certain date, failing which the plaintiffs would have direct access to the hard drives (subject to confidentiality terms to be agreed upon or ordered). The parties subsequently consented to a joint confidentiality order.
The Court held that the defendants did not provide an adequate affidavit of records because they did not disclose a number of records related to their involvement in a consortium that had bid successfully for a contract formerly held by the plaintiff and did not disclose all relevant e-mails and deleted files. It also held that the defendants should have produced the passwords, systems files and software necessary to access files in their native format and should have processed the electronic records for export into a litigation support software program.
The Court also rejected the defendants’ justifications. It held that the records pertaining to the consortium would be adequately protected by the implied undertaking rule and the joint confidentiality order. It also held that the defendants had not shown that electronic production (as ordered) would be unduly burdensome. On this point, the Court said:
The unusually high level of disclosure imposed in this case is justified by: the underlying fact that the defendants were employees of the plaintiff when they began working in competition with the plaintiff, the judicial determination that this was an appropriate case in which to issue an Anton Piller order, the size of the claim, which exceeds $50 million, and the great IT expertise of the parties which presupposes that at least some of the work required to provide the required level of disclosure can be done in-house.
Spar Aerospace Limited v. Aerowerks Engineering Inc., 2007 ABQB 543 (CanLII).
Ontario IPC makes cease and desist and destruction order
As David Fraser reports, the Information and Privacy Commissioner/Ontario has used her order-making powers under the privacy part of Ontario’s public sector privacy legislation for the first time after receiving a privacy complaint about the collection of personal information relating to the sale of second hand goods. For the Commissioner’s news release click here and for a copy of the order, click here.
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