Case Report – Bendel says no power to exclude surveillance evidence

Arbitrator Michael Bendel has recently taken a very strong stance favouring the admission of evidence collected by way of surrepetitious video surveillance.  His position is encapsulated in the following statement, made in  Re Greater Toronto Airports Authority and P.S.A.C, 2007 CanLII 21:

It follows that the discussions in many of the arbitral awards, on the existence of a right to privacy (or an expectation of privacy) in various jurisdictions, on the parametrs of such an interest, on the actionability of invasions of privacy, and on the reasonableness of resorting to videotape surveillance of an employee suspected of sick leave abuse, are quite beside the point. Interesting though these debates may be, I express no views on them. They proceed on the wholly mistaken assumption that there exists a discretion to exclude evidence that is tainted by an invasion of privacy. In the absence of any such discretion, either at common law or by virtue of provisions such as section 16(c), I an unable to detect any point in these discussions about the existence of a right to privacy.

Mr. Bendel endorsed these comments again in Re General Electric Canada and C.E.P., Local 544, 2007 CanLII 408.

Case Report – B.C. Commissioner speaks on public sector “necessary collection” standard

On June 26th, the Information and Privacy Commissioner of British Columbia held that a school board met the “necessary collection” standard in the British Columbia Freedom of Information and Protection of Privacy Act in its use of an online assessment tool for teacher recruiting.  He also held that the Board had complied with the FIPPA security standard and the Act’s requirement for storing and accessing personal information outside of Canada (as the assessment was administered by a third-party with databases located in Nebraska). 

The “necessity” ruling is broad in its analysis.  The Commissioner held that the meaning of necessity depends on the context:

At the same time, I am not prepared to accept, as the Complainants contend, that in all cases personal information should be found to be “necessary” only where it would be impossible to operate a program or carry on an activity without the personal information.  There may be cases where personal information is “necessary” even where it is not indispensable in this sense.  The assessment of whether personal information is “necessary” will be conducted in a searching and rigorous way.  In assessing whether personal information is “necessary”, one considers the sensitivity of the personal information, the particular purpose for the collection and the amount of personal information collected, assessed in light of the purpose for collection.  In addition to FIPPA’s privacy protection objective is also relevant in assessing necessity noting that this statutory objective is consistent with the internationally recognized principle of limited collection.

On this standard, he held the Board’s collection of personal information was necessary.  Although the Board had successfully recruited teachers for years before implementing the new assessment process, he accepted evidence that the new process was efficacious in identifying the best teachers and allowed the Board to more rapidly screen a large number of candidates.

The USA Patriot Act part of Commissioner Loukidelis’s award is more fact-specific, but also demonstrates a pragmatic approach.  Although he held that the Board was compliant, the Commissioner did recommend that the service provider take steps to replace identifying information with unique numerical identifiers for the purposes of permanently storing data. 

 Note that the collection standard in the British Columbia Act is essentially the same as is included in Ontario’s public sector privacy legislation.  The Ontario standard was recently considered by the Ontario Court of Appeal for the first time the Cash Converters Canada Inc. v. Oshawa (City) decision, released on July 4th.  The Court adopted the standard endorsed by the Ontario Commissioner, which arguably more rigid and restrictive than the one described above. 

Order F07-10 (B.C.I.P.C.).

Case Report – Appeal court considers jurisdiction to exclude fruits of non-disclosure

On July 31st the British Columbia Court of Appeal held that a plaintiff who was granted an Anton Piller order based on a material non-disclosure should not be prohibited from using an e-mail obtained in the search.

The plaintiff (who was unrepresented) obtained an ex parte order requiring the defendant to disgorge computer hardware and electronic and physical records related to his claim.  At the same time he, was denied an Anton Piller order and granted leave to re-apply if he served a notice of application on the plaintiff the same day.  The plaintiff executed the disgorgement order but did not serve the notice.  When the defendant did not comply, the plaintiff applied for an Anton Piller order before a different judge and did not disclose service condition imposed by the first judge.  He also drafted and entered an order broader than disclosed in the transcript of the proceeding (in that it allowed for both seizure and copying and not just seizure).

Although the Court acknowledged the high standard on a party seeking an Anton Piller and noted that the plaintiff deliberately mis-drafted the order, it held that enjoining use of the e-mail would do too great an injustice to the plaintiff.  In balancing interests, it relied on (1) the fact that the motion to discharge the search order that was under appeal was brought over a year after the search, (2) that the defendant did not have clean hands in that the search was ordered after his failure to comply with the disgorgement order (in which the e-mail ought to have been produced) and (3) that the e-mail was central to the dispute.  The Court also held that the chambers judge erred in excluding a single e-mail because of its relevance to the dispute.

Solara Technologies Inc. v. Beard, 2007 BCCA 402.

Finding my own voice

Hello?  Is anyone there?

I’m Dan Michaluk, and this is my blog.  In the last few years I’ve spent a lot of time on the internet reading other people’s blogs.  The medium is amazing and I’ve learned lots from other’s generosity in sharing their information and knowledge.  Now that I’m writing this, part of me’s wondering what I’ve been waiting for.

I am a lawyer at a firm in Toronto, Canada called Hicks Morley.  We’re the biggest management-side labour and employment law boutique in Canada, but my practice is a little anomalous for the firm because I specialize in information and privacy, which I like to define broadly as including (fascinating) subjects such as the law of confidential business information, the law of production (including e-discovery) and records management.   We also have a very strong client base in the secondary and post-secondary education sectors, and I’ve been lucky to do a significant amount of rewarding work with education sector clients.  My official bio is here, and for more about me please check out my about page.

I got inspired to do this when I had a thought at about routine e-mail surveillance but didn’t know where to publish it.  We have a client newsletter called the Hicks Information and Privacy Post.  I edit it with my good colleague Paul Broad, but its a quaterly and essentially a case law update.  I really enjoy it (and please e-mail me if you’d like to subscribe) but it’s written in my “Hicks voice.”  My thought about e-mail surveillance was the kind of thought you write in an e-mail to a colleague just so you have it down – also the kind of thought you could work into a paper by spending a lot of time on it (but that will never have significantly more value than when it was simply a thought).  So I decided I needed to start this blog.   

My plan is to make at least a couple of posts a week.  I like to scan and read a lot of information and privacy case law, so I’ll post summaries here regularly.  I’ll also try my best to post an original thought once and a while.

If it all works out as planned I’ll learn lots while making some friends and business contacts.  I hope you come back often and enjoy.