What a beautiful weekend! Nice walks with Seanna and Hugs, who were also good to let me go on a long paddle each day. The pack ice has broken up at Cherry Beach, so I was able to get behind the Toronto Islands again. The hands-down nicest beachfront in Toronto is off of Gibraltar Point. Nice sandy bottom, and at this time of year the water is super-clean and blue.

Shorter list this week, but here’s what I’ve gotten into.

• Ralph Losey, “Sanctions Have Been Lifted Against the ‘Qualcomm Six’ and a New Trial Ordered Where They May Now Speak Freely to Defend Themselves.” Mr. Losey does a wonderful job of dissecting the tactics behind the latest turn of events in the Qualcomm sanctions case, which appears to just be getting interesting. (e-Discovery Team)
• Tom Schreiter, “Inevitable Appeal to SCC in R. v. Harrision.“ A critical commentary of the recent R. v. Harrison decision in which the Ontario Court of Appeal held that evidence obtained through an unlawful search characterized as “brazen and flagrant” should not be excluded under section 24(2) of the Charter. (The Court)
• David Ardia, “Oklahoma Curtails Online Access to Court Records.” I recently attended OBA recent seminar on Master Dash’s December 2007 decision in Moore v. Bertuzzi . It’s about our deemed undertaking rule, and affirmed that the rule clearly “opens” discovery transcripts filed on undertakings motions. Currently, there is a near-absolute bias towards openness under our Ontario regime, a bias clearly endorsed by the (very esteemed panelists). The one questioner of the night raised internet publication and searchability as as causing the end of practical obscurity and cause for concern. Like most members of the bar I favour strict limits on secret proceedings. I also question whether a near-absolute rule can be maintained. Is the Oaklahoma policy, which seems to be about sustaining openness through sustaining practical obscurity, where the answer should lie?

In this February 12 arbitration award, Arbitrator Albertyn articulates a novel and forgiving standard for use of surreptitious video surveillance as follows:

The proper context for evaluating the reasonableness of the decision to undertake the surveillance is not the ideal circumstance in which no stone is left unturned. Every aspect of the motivation need not be perfect and yet the decision may be reasonable. The question is one of weight. In every context in which a surveillance decision is made, there will be some things the employer failed to think about, there will be some check or some information which could usefully have been obtained in advance, which the employer failed to obtain. Hindsight and skilful advocacy will show what more could have been done. A gap here or there will not necessarily be fatal, though, to the reasonableness of the decision. Determining the reasonableness requires making a decision as to whether, taken overall with the lack of information that might have been obtained, and with the information that was available and was obtained, was the employer cavalier, capricious, arbitrary or careless in arriving at the decision to initiate surveillance. If, taken overall, despite the flaws in the information the employer had, the employer can show itself to have been bona fide, thoughtful and careful in arriving at the decision, and to have had substantive grounds for suspicion, the surveillance will be reasonable.

The reasonableness standard applies because the mutual respect of management and employees requires that an employee be given the benefit of the doubt until the employee has given some reasonable cause for the employer to believe (possibly erroneously) that the employee is cheating, taking advantage of the situation and obtaining a benefit that is not justified.

In the circumstances, Mr. Albertyn allowed the evidence to be admitted. He said:

I find, despite some deficiencies, that Ms. Peters had reasonable cause for her decision to use surveillance. As Employer counsel submits, Ms. Peters was not acting on a whim. From her perspective, the Grievor had been duplicitous in the past, her attendance record was bad, she appeared not to have needed physiotherapy when she worked previously at PMH, there were no restrictions on what the Grievor could do at work yet the physiotherapy had gone on for many weeks, and, had Ms. Peters asked the Grievor for consent to check on her continuing need for physiotherapy, she thought she might face another harassment complaint. Taken together, there was enough for her to doubt the veracity of the Grievor’s continuing visits to physiotherapy, week after week, and to warrant undertaking a check to see if her suspicions were justified.

Re University Health Network and Ontario Public Sector Employees Union, 2008 CanLII 4546 (ON L.A.).

I managed a decent surf yesterday. It was a thigh-high shore-break session over concrete and re-bar. Oh yeah, minus six centigrade too. Not exactly reminiscent of the islands, but fun anyway. I needed the surf because the “spring forward” weekend can otherwise be a bummer, especially when it snows a foot.

Here’s what I’ve found interesting this week.

• Eric Freedman, Reconstructing Journalists’ Privilege. This is timely given the recent National Post case (report here). Professor Freedman argues for a class privilege akin to solicitor-privilege, stating that, “any qualified reportarial privilege which depends on judicial balancing of the importance of disclosure in individual cases is inherently structurally defective.” (Social Science Research Network)
• Office of the Privacy Commissioner of Canada, Radio Frequency Identification (RFID) in the Workplace: Recommendations for Good Practices. This has been a published as a consultation paper, so may lead to a more pointed opinion in the future. As it stands, it is very reserved, with the Commissioner only coming out firmly against the use RFID implants for any purpose. The paper is nonetheless useful. It discusses some of the technical options that employers should run-through in building systems that limit collection. It also has a nice general discussion of the meaning of personal information, with references to PCC orders and other sources. (Office of the Privacy Commissioner of Canada)
• Guidelines for Overt Video Surveillance in the Private Sector. Published this week by the PCC, the Alberta OIPC and the British Columbia OIPC. Hat tip to David Fraser.
• Thomas J. Smith, Now Watch the Lawyers Blitz: The NFL destroyed the tapes. But it still hasn’t escaped the sack. This is an extremely interesting spoliation news story (likely to become a case) about video taken by the New England Patriots of other teams’ defensive signals. The NFL demanded tapes from Patriots and destroyed them immediately after completing its cheating investigation in September 2007. Just over a week after the NFL announced the tapes had been destroyed, the Patriots and its coach Bill Belichick were hit with a class action lawsuit filed on behalf of New York Jets season ticket holders. The tapes could contain evidence of whether the stealing of signals gave the Patriots an unfair advantage, but are now gone. Did the NFL have a duty to retain them? (Law Times, reprinted at K&L Gates).
• Judge John G. Koeltl, The Virtue of Brevity. Excellent. Words to practice by. (American Bar Association Section of Litigation)

On January 4th, arbitrator Watters upheld a termination based on the admission of evidence obtained by surrpetitious video surveillance which revealed the grievor performing activities inconsistent with his medical restrictions.

Mr. Watters viewed the evidence before determining whether it would be admitted under a two part reasonableness test: (1) was there a reasonable basis to engage in surveillance? and (2) was it conducted in a reasonable manner? In determining that the evidence was admissible, he considered that:

• the Union had advised its members of the employer’s practice in using video surveillance;
• the grievor worked in the highly-regulated gaming industry (which lowered his expectation of privacy, presumably based on the trust required of gaming sector employees);
• the grievor had not shown a material improvement in his condition in approximately four months, even after the company medical adviser had questioned whether there was an objective basis for the medical claim;
• the manager initiating the surveillance had reason to doubt the grievor’s credibility because she had administered two previous WSIB claims in which the his medical claims had been rejected; and
• the grievor was not forthright at the hearing, which supported the reasonableness of the manager’s decision to engage in surveillance rather than confront the grievor.

Arbitrator Watters also rejected the Union’s argument that the evidence of malingering should be excluded because the employer had improperly terminated the grievor’s modified work arrangement (as he had found). Instead, he ordered compensation as a remedy.

Re National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Local 444 and Windsor Casino Ltd. (Hideq Grievance), [2008] O.L.A.A. No. 35 (QL) (Watters).

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.