The Special Case of E-Mail (as Electronic Evidence)

I attended and presented at Day 1 of  the Osgoode Short Course in Obtaining, Producing and Presenting Electronic Evidence.

Thank you to Chuck Rothman of Wortzman Nickle for fielding my question about preserving web based communications. He suggested that Adobe Acrobat does a good job of producing a reasonably true copy of web page renderings, but should be used in conjunction with good evidence handling practices – e.g., keeping a log of steps, hashing the file produced and so on. Chuck also mentioned Facebook’s new feature that allows users to download profiles as worth thinking about when dealing with Facebook preservation issues.

I presented with John Gregory on “The Special Case of Email.” John is a true authority on electronic evidence, and I’ve been lucky to do this presentation with him a few times now. Our slides are below.

For some of John’s materials on electronic evidence, check out his web page here. We also noted Stephen Mason’s excellent website as a resource on electronic evidence. It is linked here.

Owner with a site access drug testing policy not a co-employer

On January 11th, the Alberta Court of Appeal issued a significant site access drug testing decision in which it held the owner of a construction site did not co-employ a subcontractor’s employee for the purpose of Alberta human rights legislation.

The employee worked for a subcontractor on a construction site owned by Syncrude. Syncrude required all contractors’ employees to have a drug test as a condition of site access. The employee failed, filed a human rights complaint and succeeded in arguing that Syncrude was a co-employer before a human rights panel. The Panel chair stated, “It would be an organization façade to think that a company could circumvent human rights legislation by inserting a contractor between the company and the workers it requires to build its project.”

The Court of Appeal held that co-employment is possible under the Alberta Human Rights, Citizenship and Multiculturalism Act and articulated factors for assessing whether co-employment exists, but held that the Panel erred in finding Syncrude was a co-employer. It appears that Syncrude’s relationship with its general contractor and the various subcontractors on its site was nothing out of the ordinary. The Court commented:

It is Lockerbie & Hole [the complainant’s “true” employer] that must ensure that Mr. Luka’s rights under the Act are respected, and that any discrimination demonstrated by Mr. Luka is either a bona fide occupational requirement under ss. 7(3), or “reasonable and justifiable in the circumstances” under s. 11. Any duty to accommodate a disability that arises must be met by Lockerbie & Hole. Mr. Luka is not denied rights under the Act, but the burden of protecting them falls on Lockerbie & Hole…

If Mr. Luka worked for one of Lockerbie & Hole’s subcontractors, he presumably would have five employers: the subcontractor, Lockerbie & Hole, Marsulex, Kellogg Brown and Root, and Syncrude. If he was further down the contractual chain, he might have even more employers. This is not a result the Legislature should be taken to have intended by the use of the word “employer”.

This is an important site access drug testing decision. Furthermore, the Court’s reasoning on the meaning of “employer”  and the parameters for co-employment under human rights legislation are of general importance with implications outside of Alberta.

Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3 (CanLII).

SCOTUS background check case is very… American

Today, the Supreme Court of the United States unanimously decided that elements of a background check administered to contractors working at a NASA laboratory are constitutionally permissible.

The contractors challenged a question that asks whether individuals have “used, possessed, supplied or manufactured illegal drugs” in the last year and a question to those answering “yes” about “treatment or counseling received.” They also objected to the breadth of inquiries routinely made to references, including questions that sought facts potentially related to “honesty or trustworthiness,” “financial integrity,” “abuse of alcohol and/or other drugs,” and “mental or emotional stability.”

Justice Alito wrote the majority opinion. He assumes, without deciding, that a right to “informational privacy” exists under the United States Constitution but holds that, in any event, the background check questions at issue are justifiable on a contextual balancing of interests. He stresses that government, when acting as employer, has a much “freer hand” to deal with individuals, stresses the pervasiveness of similar screening questions in the private sector and stresses that the information collected is well-protected by the federal Privacy Act.

Justice Scalia, with Justice Thomas concurring, wrote a concurring opinion in which he holds there is no constitutional right to “informational privacy.” He mocks the contractors for their failure to rely on a single provision of the Constitution in written argument and criticizes the majority for its “damaging” “never-say-never” position.

Justice Scalia’s display of sharp wit is well worth a read, but as Canadian employment law practitioner, the following statement by Justice Alito is even more remarkable:

Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will“‘efficiently and effectively’” discharge their duties. See Engquist, supra, at 598–599. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics. See, e.g., Breen & Matusitz, An Updated Examination of the Effects of Illegal Drug Use in the Workplace, 19 J. Human Behavior in the Social Environment, 434 (2009) (illicit drug use negatively correlated with workplace productivity).

This shows such different values than currently reflected in our own screening law. In particular, Canadian adjudicators have expressed great discomfort with the suggestion that individuals who casually use illegal drugs outside the workplace will be less efficient, effective or reliable while at work. Justice Alito (and his six esteemed colleagues) draw the link between illegal drug use simpliciter and workplace performance so easily that it makes you wonder whether we are missing something.

NASA v. Nelson, 562 U.S. ____ (2011).

Arbitrator gives employers a “nugget” for justifying in-plant surveillance

Saskatchewan Labour Arbitrator William Hood made the following comment in dismissing a grievance that challenged the installation of video cameras in a distribution centre that supplies product to hospitals and pharmacies:

The Employer’s implementation of a video surveillance system passes the reasonableness tests both in terms of need and manner of use. To suggest there first must be a breach of the security of the premises before one can justify the use of video cameras for security purposes makes no sense to me in the circumstances. Why would management wait until someone stole the gold to install video surveillance at the Royal Canadian Mint?

This is a nice statement for employers, though the award was carried on a number of good facts.

Re Saskatchewan Joint Board, Retail, Wholesale and Department Store Union and McKesson Canada Corp. (Privacy Grievance), [2010] S.L.A.A. No. 26 (Hood) (QL).