Case Report – Arbitrator says thorough probing is a prerequisite to surveillance

On November 27th, Manitoba labour arbitrator A. B. Graham excluded video surveillance evidence that showed an employee who was on light duties playing sponge hockey, in part, because the company ought to have been more direct in questioning the employee about his off duty conduct.

When the employee was confronted about playing sponge hockey, he did not lie but his answers were evasive. As a result, the company hired a private investigator to conduct video surveillance. Although the arbitrator excluded the video surveillance evidence based on a finding that the company should have asked the employee pointed questions first, he also held that the employee breached a duty to cooperate in the accommodation process by being more forthright about playing hockey and whether it was consistent with his medical restrictions.

Re Praxair and General Teamsters Local Union 979, [2007] M.G.A.D. No. 37 (Graham).

Case Report – Court says casual drug user not protected under human rights legislation

Yesterday the Alberta Court of Appeal issued its much-anticipated Chiasson v. Kellogg Brown & Root award, and in doing so, found that a casual drug user who was terminated after failing a pre-employment drug test was not subjected to discriminatory treatment under Alberta human rights legislation.

The key issue addressed by the Court of Appeal is whether zero tolerance drug testing policies are de facto discriminatory because they rest on a presumed assumption that casual drug users are at greater risk being impaired at work, in turn, because they are likely to fall into a “cycle of abuse.” This issue – let’s call it the perceived disability theory of casual drug user protection issue – was raised but not clearly determined in the Ontario Court of Appeal’s leading Entrop decision. It is critical in Canadian drug testing law because it determines the scope of legal protection against “unnecessary” drug tests. Ironically, Alberta is one of three provinces that have passed broadly-applicable regimes for protecting employee privacy rights. In fact, a drug testing complaint in which Kellogg Brown & Root is a respondent is now proceeding before of Alberta’s Information and Privacy Commissioner. In other jurisdictions, including Ontario, casual users who are given offers of hire conditional on testing clean have no clear avenue of redress should they feel their privacy rights have been violated.

The Court of Appeal held that the Alberta Court of Queen’s Bench had erred in finding that the complainant was treated as if he was drug dependent and likely to report to work impaired. It rejected the idea that a zero tolerance policy necessarily targets those who are at risk of becoming addicted and held that all the Kellogg Brown & Root policy does is protect against the lingering deleterious effects of cannabis use (a point apparently proven in evidence). The Court of Appeal said:

Chiasson testified that what he did on his own time was his business. He did not at any time suggest that he would cease his recreational use of drugs while employed by KBR. As we have already stated the evidence established that effects of cannabis use lingers for days particularly given that the concentration of active ingredients is now many times higher than it was in the past. Given these concerns the policy’s effects are not misdirected in their application to Chiasson.

We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles. Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safely. This is a legitimate presumption. Its goal is laudable since carnage on the highways is a leading, but often ignored, cause of death nearing epidemic proportions. Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.

On this view, whether a drug and alcohol policy discriminates against casual users is a question of fact. This is consistent with the employer-favoured reading of Entrop, in which an Imperial Oil policy was that was found to discriminate against all drug users included langauge stating a belief in the “cycle of abuse” to which all drug users subject themselves. The Alberta Court of Appeal suggested that the perceived disability finding in Entrop was simply based on this language.

Chiasson v. Kellogg Brown & Root, 2007 ABCA 426.

Information Roundup – December 27, 2007

Here’s a new feature that I’ll resolve to keep with for the next while. Every one or two weeks I’ll post a handful of articles or blog posts that have caught my interest and are related to the subject matter of this blog. Here are some from my holiday readings (in no particular order):

Alan Taneja, Buying typical storage for video surveillance? Rethink that! A nice synopsis of new records management issues associated with video surveillance.

David Hecheler, Lockheed Employee’s YouTube Video Sounds Ethics Alarm. A thorough account of the story of whistleblower Michael DeKort.

Ron Ashkenas, Simplicity-Minded Management from the December 2007 Harvard Business Review. About simplifying business structures, products and business processes. The processes part has a bit about information management, which reminded me of a comment that came up in a recent conversation with a friend of mine who’s a GC. It went something like, “The mass of available information and the pace of business is leading to a crises of quality decision making.” I like this topic.

Kelly D. Talcott, Cutting out Privacy in the Office. Locking down work e-mail systems, the subject of this article, is a hugely important issue. I’d like to thank my managing partner, Stephen Shamie, for passing this one on.

Joe Bartling, Post-Termination Employment Forensics. Very prescriptive blog post on an important topic.

Ralph Losey, Best Buy Wins Key e-Discovery Ruling in Fraud Case. Here’s Mr. Losey’s summary of the much-discussed Best Buy Stores L.P. v. Developers Diversified Realty Corp. e-discovery award, a case on the duty to preserve a litigation database that is likely to be useful in subsequent litigation.

Enjoy!

Case Report – Court comments on competing burdens in disputes over litigation privilege

On December 14th, the Ontario Superior Court of Justice issued a principled judgement on litigation privilege, commenting on both the nature of the evidentiary burden on a party claiming the privilege and the burden on a party seeking disclosure notwithstanding the privilege on the basis that the records would be arguably relevant to the misconduct alleged.

The Court held that the party claiming litigation privilege has either a one or two-step evidentiary burden. Where the court can infer from the circumstances that all documents prepared after litigation is reasonably anticipated were prepared for the dominant purpose of the anticipated litigation, it will do so, meaning that the claimant need only prove that litigation is reasonably anticipated. Where such an inference cannot reasonably be drawn (where there are numerous issues between the parties, only some of which being the subject of reasonably anticipated litigation, for example), the party claiming privilege must prove that litigation is reasonably anticipated and must also prove, on a record-by-record basis, that the records were prepared for the dominant purpose of the anticipated litigation.

On the burden facing a party who seeks disclosure notwithstanding litigation privilege, it held that relevance alone will not overcome the privilege. This case involved a bad faith claim against an insurer. The plaintiff had argued the insurer’s claim file was highly relevant and that the it would be constrained in proving bad faith without it. The Court disagreed, holding that a party seeking records subject to privilege must prove a prima facie case of misconduct first.

I noticed this case after reading a very good and far more detailed entry on Cavanaugh Williams’ blog, an excellent blog on civil litigation and insurance law. Please see its summary here.

Mamaca v. Coseco Insurance Company, 2007 CanLII 54963 (Ont. S.C.J.).

Case Report – E-mails from employee hotmail account admissible

On December 11th, Alberta labour arbitrator Allen Ponak issued an award ruling that e-mails produced from a forensic analysis of an employee’s work computer were admissible in evidence.

The employer retained a forensic IT specialist to conduct the analysis after terminating the grievor (a college professor) for engaging in inappropriate relationships with at least three students. When it conducted the search, the college already had received a complaint from one student, had found corroborative evidence in the grievor’s e-mails sent and received on its own e-mail system (the admissibility of which was not challenged) and had received a corroborative report from another individual. The college claimed that conducting word searches by the names of the grievor’s former students was the most effective way of determining whether he had engaged in additional inappropriate relationships.

Arbitrator Ponak admitted the evidence on a rather unremarkable application of the Doman Forest Products three-part test. At the outset, however, he did comment on the expectation of privacy the grievor had in information sent and received through a hotmail account but on a computer owned by the college.

We start from the premise that employees have some expectation of privacy in the receipt and transmission of emails from an internet provider that is not their employer’s (Weir; McIsaac et al.). Thus, it was reasonable for the Grievor to believe that emails on his hotmail account were beyond the reach of the College. In the Board’s view, if the Grievor’s hotmail was exclusively located on the Grievor’s own private computer it would be inadmissible without the Grievor’s consent. The Grievor, however, used the computer provided to him from the College for some of his hotmail email, changing the circumstances. The College computer was intended primarily for College work and it belongs to the College, factors which give the College some rights to access that computer. The Grievor’s right to privacy for the contents of the College computer is not absolute. At the same time, recognizing that the policy against using the College computer for non-College matters has not been rigidly enforced (if enforced at all), the Employer’s access to the contents of the computers it provides its employees is not unfettered either. The Employer’s right to search the contents of an employee’s computer must be balanced against an employees expectation of privacy and is subject to a test of reasonableness.

Arbitrator Ponak did find that the search was conducted in a reasonable manner, but in doing so did not specifically endorse the narrow search protocol used by the college as preferable to a broader search protocol or manual review. This demonstrates a more “hands off” approach to scrutinizing a reasonable grounds investigation than demonstrated in the recent and well-known University of British Columbia case, which I discussed here and here.

Re Lethbridge College and Lethbridge College Faculty Assn. (Bird Grievance), [2007] A.G.A.A. No. 67 (Ponak) (QL).

Case Report – Court stresses burden on party challenging keyword search protocol

On December 3rd, the Alberta Court of Queen’s Bench dismissed a motion for more fulsome production, finding the applicant failed to discredit the respondents’ keyword search protocol.

The dispute centered on a set of 50,000 records that were identified and collected in a related action. The respondents reviewed 15,000 of the records manually and conducted a keyword search on the remaining 35,000. This process resulted in a set of 110 records that were produced.

The Court cited the “Ontario e-Discovery Guidelines” and its Principle 10, which endorses the use of electronic tools to identify information and records of arguable relevance. It held that the applicant had the burden of proving the inadequacy of the search protocol, held that it would be improper to draw an inference about the quality of the search from the number of records produced and held that the applicant did not otherwise prove inadequacy. In reaching this conclusion, the Court suggested that the applicant ought to have challenged the protocol more vigorously in its cross examination or ought to have called expert evidence with the same intent.

Shell Canada Limited v. Superior Plus Inc., 2007 ABQB 739 (CanLII).

Regulation permitting issuance of electronic pay statements proposed

On December 15th, the federal Minister of Labour proposed a regulation that will permit federally-regulated employers to issue electronic pay statements. Currently, employers without seeking a ministerial exemption.

The government is relying on the provision in Part 2 of the Personal Information Protection and Electronic Documents Act that deems a legal requirement that a document be in writing to be satisfied by an electronic document where (among other things) a regulation establishing the conditions for use of an electronic document is put in place.

The proposed regulation establishes the following conditions for use:

the employer must inform each employee where electronic pay statements are stored
the pay statement must be readable and printable only by the employee
the pay statement must remain accessible by the employee through electronic means for a period of at least three years from the first date it is made available
the pay statement must be readable and printable on a computer and printer to which the employer shall provide the employee with private access

The Regulatory Impact Analysis Statement and the proposed regulation can be found here.

Case Report – Facts gathered by legal counsel not privileged

On December 3rd, the Northwest Territories Supreme Court held that facts gathered by Department of Justice lawyers on behalf of the Commissioner of the Northwest Territories and a government department were not subject to litigation privilege.

The plaintiff, a government doctor, brought an action for wrongful dismissal. He was terminated for other reasons, but argued that the termination decision was tainted in part by allegations that he was a known pedophile in the United States. Department of Justice lawyers made inquires of the R.C.M.P. about these allegations, and the timing of these inquires and the facts gathered by the Department of Justice were relevant to the plaintiff’s bad faith claim. The government claimed that information related to the inquiries was subject to solicitor-client and litigation privilege.

The Court rejected both claims. It rejected the litigation privilege claim, in part, because the information was gathered by counsel. It said:

As I have already stated, the purpose of litigation privilege is to create a “zone of privacy” to facilitate investigation and preparation for trial in the context of an adversarial process. Bearing this context in mind, I think there is merit to the argument that a distinction should be drawn between information generated by investigations conducted on behalf of one’s client, or documents created by counsel in the context of imminent or existing litigation, as opposed to pre-existing information or documents that are simply copied or gathered by counsel.

This reasoning has been accepted by the Ontario Court of Appeal in Chrusz, but was left open in Blank, the Supreme Court of Canada’s leading litigation privilege judgement.

Bargen v. Canadian Broadcasting Corp., [2007] N.W.T.J. No. 101 (QL).

Government ordered to return electronic records seized under warrant

On December 11th, the Ontario Superior Court of Justice found the Ministry of Labour violated Booth Centennial Healthcare Linen Services’ section 8 Charter rights and ordered it to return electronic records seized under an extremely broad search warrant. Mr. Justice Corbett’s order states, “The search and seizure of electronic records in this case was grossly overbroad, in the circumstances. There was no evidence before me of the practicality of an on-site search for electronic records, an approach that, as a matter of common sense, ought to be possible in a case like this.” We expect supplementary reasons to be issued in January.

Case Report – Preservation order substituted for Anton Piller in e-docs case

On November 23rd, the Ontario Superior Court of Justice set aside an Anton Piller order in favour of a preservation order.

The Court held that the plaintiff had failed to prove a real possibility that the defendant would destroy incriminating documents or things and, alternatively, that the scope and quality of the electronic records seized weighed against the order. There are significant parts to both findings.

On the possibility of destruction finding, the Court rejected the plaintiff’s argument that the impermanent nature of arguably relevant electronic evidence justified the Anton Piller. Although not entirely clear from the award, the plaintiff appears to have argued that records of web-browsing were relevant and that the search was necessary because web pages and IP log files stored in memory and swap files would be subject to loss in the ordinary course. The Court said:

This evidence does not support an allegation of intentional destruction of evidence, to justify the court’s interference. It does not tell the court when evidence may be lost by use of computers in the ordinary course of business. Inadvertent over-writing of files by on-going use of computers could be addressed by a demand to preserve evidence.

The Court was also not impressed with the plaintiff’s execution of the order. For one, it seized a home computer belonging to a personal defendant without authorization. More fundamentally, the Court took issue with scope of the order itself (citing Celanese for the proposition that the scope of the order should be as narrow as possible) and the fact that it enabled the plaintiff to seize virtually all of the defendant’s records. It said:

The scope of documents seized under the order is breathtaking. It includes documents that are personal in nature, such as private e-mails unrelated to the Wasaya workplace, individual banking records, income tax returns, personnel files, patient’s medical records, and other materials that have no relevance whatever to the allegations NAC makes in this litigation. It also includes confidential business records such as financial statements for Wasaya, marketing plans, restructuring plans and other documents bearing on Wasaya’s market position as NAC’s competitor. Documents related to other litigation involving Wasaya, and protected by solicitor-client privilege, were also caught in the net.

In the result, the Court substituted a non-specific order to, “preserve documents relevant to the issues in this litigation and to produce such documents as may be required in accordance with the Rules of Civil Procedure.”

NAC Air, LP v. Wasaya Airways Limited, 2007 CanLII 51168 (Ont. S.C.J.).