Case Report – Anton Piller order affirmed by Ontairo court

On November 21st, the Ontario Superior Court of Justice dismissed a motion to set aside an Anton Piller order granted to the plaintiff on evidence that the defendants had been involved in the sale and acquisition of satellite piracy hardware.

Motions to set aside Anton Piller orders are often granted for failure to meet the very high standard of disclosure (“full and frank”) or the equally high standard of conduct in execution. In this case, the defendant raised ten bases for setting aside the order, all of which were rejected by Madam Justice Pepall. Of greatest significance:

  • Pepall J. refused to set aside the order because it was not executed by a peace officer. She stated that an Anton Piller need not be executed by a police officer despite the Court’s earlier statement in Ridgewood v. Robbie. She noted that the Supreme Court of Canada’s subsequent decision in Celanese did not endorse such a requirement.
  • Pepall J. followed Ferenczy to excuse the fact that the computer forensics specialist whose evidence was adduced in support of the Anton Piller ought to have been licensed under the now-repealed Private Investigators and Security Guards Act.

In one sense, this award demonstrates effective use of an important and powerful civil remedy. In another, it may highlight how a defendant’s response to an Anton Piller can work to its prejudice. The defendant initially denied entry to his premises and, though he permitted entry later the same day, two computers subject to the search were missing hard drives. One wonders whether this misconduct (found earlier to be done in contempt) tempered Pepall J.’s inclination to apply the extremely unforgiving approach typically applied when persons who have executed Anton Piller orders are brought back before the court.

Bell ExpressVu Limited Partnership v. Rodgers (Tomico Industries), 2007 CanLII 50595 (Ont. S.C.J.).

Case Report – Privacy interest in personal e-mails outweighed by need for openness

On November 19th, a Kentucky court judge ordered the state to disclose personal e-mails exchanged between a requestor’s wife and another former state employee, requested because he suspected the two individuals were having an affair.

The request was for all “Personal non-work related emails between Bobbie Malmer and David Moss dated between 11-01-05 thru 6-01-06.”

In weighing the privacy interest of the affected individuals against the interest in open government, the Court stressed that the individuals had a reduced expectation of privacy because the state had reserved a right of inspection in its acceptable use policy, because it had prohibited personal use on its computer system and because the extent of a state employee’s personal use is itself a matter of public interest. It said:

The privacy exception does not protect public employees from the disclosure of improper or embarrassing personal communications that were made during working hours through the use of the state electronic mail system. See KRS 61.871. It is not an “unwarranted invasion of personal privacy” to disclose such non-work related communications made during working hours on the state computer system. This principle applies with even greater force when the state employees have been informed that all information conveyed through the state email system is the property of the state, and is subject to public oversight and control. In these circumstances, no privacy interest can be legitimately claimed.

Moreover, the Court agrees with the observation of Justice Brandeis that “Sunlight is said to be the best of disinfectants.” The best deterrent for improper use of the state email system for nonwork related activity is to apply the plain language of the Open Records Act to ensure the enforcement of the principle that public employees are accountable for their use of public time and public resources. The public has a right to know the contents of non-work related emails transmitted through the state email system by state employees being paid with tax dollars during working hours. If the subject matter of the email is truly private, it should not be communicated through the state email system.

Personal e-mails sent and received on Ontario public sector e-mail systems are presumptively subject to public access, but will often fall within our own “unjustified invasion of personal privacy” exemption. Although Kentucky’s open records regime appears to have a different emphasis than our own, this is an issue that is clearly relevant here at home, and a similar balancing test will often apply.

An article from the Globe and Mail says the state will appeal.

Justice and Public Safety Cabinet v. Malmer (19 November 2007, Ky.).

One to watch – Telus Mobility at SCC

In 2004, the federal government passed Bill C-45, An Act to Amend the Criminal Code (capital markets fraud and evidence gathering). The Act is most known in my practice for creating criminal whistleblower protection, but it also created a new investigative tool called a “production order” by which third-parties may be required to produce documents, produce data or even prepare documents (based on existing data) for production. A production order is meant to be an easier-to-administer alterative to search warrants. The Department of Justice backgrounder on the Bill also says production orders are privacy-protective because they do not involve the fishing that’s associated with the execution of a search warrant.

In Telus Mobility, the basic issue is whether a third-party can seek reimbursement for the costs of complying with a production order. According to Julian Ho’s good summary at The Court, the Supreme Court of Canada will hear oral arguments on the case on December 13th. Julian’s detailed summary of the case is here.

Case Report – IPC interprets scope of new “compassionate reasons” exception

The Office of the Information and Privacy Commissioner/Ontario has released its first two orders interpreting the new “compassionate reasons” exception in section 14(4)(c) of MFIPPA and section 21(4)(d) of FIPPA.

In 2006, the government passed Bill 190, the Good Government Act. Schedule N of this omnibus bill created a new provision in both acts to create an exception to the mandatory “unjustified invasion of personal privacy” exemption to the right of public access. The carve out allows “close relatives” of a deceased individual to obtain personal information notwithstanding any invasion of privacy where disclosure is “desirable for compassionate reasons.”

MO-2237 – Test articulated

In MO-2237, dated October 19, Assistant Commissioner Beamish ordered a police services board to disclose records created in the course of an investigation into the death of the requestor’s daughter based on the new exception.

Mr. Beamish first held that the exception applies to the personal information of a deceased individual that is mixed with another individual’s personal information. This is significant because the investigations that are likely to produce records litigated under the exception will often include “mixed personal information.” In this case, the mixed personal information was provided by the deceased’s former roommate and was about her interaction with the deceased.

Mr. Beamish then gave meaning to the trigger language, “desirable for compassionate reasons.” He explained that the provision requires a “broad and all encompassing” analysis that involves consideration of both the surviving family member’s need for the information and the privacy interest of both the deceased and any other person whose personal information is mixed with that of the deceased.

Balancing these factors, Mr. Beamish ordered disclosure of most of the information in dispute. While it is not surprising that that deceased’s own privacy interests did not prevail against her mother’s interest (given they were not estranged), it is more significant that Mr. Beamish ordered disclosure of the roommate’s personal information, especially because it appears the information was partly about the roommate’s own health. He characterized the issue as “difficult” but after careful consideration held that the balance weighed in favour of disclosure.

MO-2245 – Limitations made clear

On November 9th, the IPC issued a second order interpreting the exception. It is significant for its rejection of two positions that weigh against disclosure.

First, the IPC made clear a head should readily accept the requestor’s expressed compassionate grounds:

Having been informed that disclosure of the videotape and photographs may be upsetting and disturbing, in my view the appellant is in the best position to determine whether disclosure is in her interests. In general, institutions may have an obligation to inform spouses and close family members of the nature of the information they have requested under section 14(4)(c); for example if it is particularly graphic or disturbing. However, having provided that advice, it does not then rest with an institution to make decisions on behalf of that grieving spouse or relative as to whether disclosure is in their best interests. A well-informed adult can make that decision on their own behalf.

Second, the IPC made clear that a head should not consider a disclosure to the requestor a disclosure to the world in considering the new exception. While this concept is generally accepted as a valid means of ensuring an individual’s right of privacy is not lessened because of the motivations or identity of a specific requestor, the IPC held that the new exception is unique in that it contemplates disclosure to a specific individual.

MO-2237 (19 October 2007, O.I.P.C.) and MO-2245 (9 November 2007, O.I.P.C.).

More on proportionality and civility

Ralph Losey’s E-Discovery Team blog is my absolute favorite blog, by a long-shot even. I have not read the 185 page opinion in the October John B. v. Goetz case from Tennessee in October, but thought I’d pass on the link to Mr. Losey’s case comment because of the recent Osborne Report on civil justice reform in Ontario, which stresses the ever-increasing importance of proportionality and civility in maintaining an accessible civil justice system.

In the Goetz case the Court renewed a motion to compel discovery that would cost the defendants up to $10 million. Mr. Losey dissects District Court Judge William Haynes Jr.’s proportionality-based reasoning and also comments about his unique (and ultimately unsuccessful) attempt to facilitate dispute resolution. This attempt involved excluding counsel from the process of protocol building and turning that process over to the parties’ IT experts alone. Mr. Losey comments:

Judge Haynes seemed to be onto something here. By simply requiring experts to hash out agreements on technical e-discovery issues by themselves, these disputes could be resolved quickly and relatively inexpensively. Judge Haynes’ idea to transcend the adversarial process, at least for purposes of e-discovery, is in line with that of most experts. They all agree that complex e-discovery issues do not lend themselves to effective solution in the adversarial model. Complex technical issues are best solved with a degree of cooperation and transparency previously unheard of in our adversarial system. The Bench and Bar are being pushed in this new, and some would say “radical,” peaceful-collaborative direction out of necessity. The traditional “hide the ball” model simply does not work in complex ESI discovery. It frequently costs the parties far more than the case is worth, and can produce huge, time consuming, and sometimes outcome dispositive mistakes.

I’d encourage you to and add E-discovery Team to your feed reader and check out Mr. Losey’s comment on the Goetz case, which is posted here.

Civil justice reform report addresses discovery abuse

On November 22nd the Ontario government released the Summary of Findings and Recommendations from the Civil Justice Reform Project. The report, authored by The Honourable Coulter Osborne, contains 81 recommendations on civil justice reform. Here is a summary of the four recommendations most significant to the readers of this blog, with excerpts from Mr. Coulter’s rationale for each.

1. Establish proportionality as an overarching principle of interpretation

Proportionality, in the context of civil litigation, simply reflects that the time and expense devoted to a proceeding ought to be proportionate to what is at stake. It should be expressly referenced in the Rules of Civil Procedure as an overarching, guiding principle when the court makes any order.

2. Narrow the scope of discovery by implementing a “relevance” standard

The “semblance of relevance” test ought to be replaced with a stricter test of “relevance.” This step is needed to provide a clear signal to the profession that restraint should be exercised in the discovery process and, as the Discovery Task Force put it, to “strengthen the objective that discovery be conducted with due regard to cost and efficiency.” In keeping with the principle of proportionality, the time has come for this change to be made, which I hope in turn will inform the culture of litigation in the province, particularly in larger cities.

3. Give weight to the Ontario E-Discovery Guidelines and Sedona Canada Principles

I believe it would help if reliance on the E-Discovery Guidelines and The Sedona Canada Principles were encouraged through a Practice Direction. This would state that the court may refuse to grant discovery relief or may make appropriate cost awards on a discovery motion where parties have failed to consider and, to the extent reasonable, apply the E-Discovery Guidelines and The Sedona Canada Principles – in particular the requirement to meet and confer on the identification, preservation, collection, review and production of electronically stored information.

4. Make litigation budgets mandatory

In addition, counsel should as a matter of routine provide clients with a pro forma budget setting out, albeit in a somewhat imprecise way, the estimated cost (legal fees and disbursements, including expert witness fees) of commencing or defending a proceeding. Periodic updates should also be provided. There is, of course, no need for this in personal injury litigation where contingency fee arrangements are typical. Nor would this requirement be applicable to defence counsel retained by property (casualty) insurers who have developed their own methods of controlling solicitor and client cost exposure.

The government has stated that Mr. Coulter’s full report will be released later this year.

Data breach due diligence

I spoke at our annual pension and benefit conference this morning on the role of the company medical advisor and data breach due diligence. The latter issue is as topical as ever, and I was happy to drive home the message that managing the personal habits and attitudes of employees is critical to a complete due diligence program. I’ve posted a copy of my slides here.

Case Report – Settlement correspondence to be produced despite clear terms of settlement

On November 16th the Nova Scotia Supreme Court ordered the plaintiff in an action for LTD benefits to produce correspondence he had sent and received in the course of settling a claim against his former employer.

The plaintiff settled a wrongful dismissal action and a human rights claim brought against his former employer for $65,000. The amount was expressly allocated as general damages in the settlement agreement. The plaintiff continued his action against the LTD insurer for non-payment of benefits, which raised the issue of whether any portion of the $65,000 would be deductible under the LTD plan as “earnings recovered.” To address this issue, the insurer requested production of the settlement correspondence. The plaintiff resisted by raising settlement privilege and claiming that the settlement document itself (which had been produced) was proof that none of the damages were deductible.

The Court ordered the documents to be produced, noting that the plaintiff could still raise a parole evidence argument at trial. It rejected the plaintiff’s argument that the express allocation to general damages weighed against production, noting that the plaintiff had a duty of good faith to the insurer:

There may not have been a contractual right to control the settlement process, but the plaintiff does have good faith obligation in dealing with the LTD Fund, in circumstances where lost earnings may have been a significant factor in arriving at settlement.

Inglis v. Nova Scotia, 2007 NSSC 314.

 

Investigators beware! A license to investigate is not necessarily a license to fish.

This is the title of the forward to our just-published Hicks Morley Information and Privacy Post. If you follow this blog you’ll be familiar with most of the content, which we aggregate, edit down to size and index for convenience in order to create The Post. Please download a copy here.

This edition contains some of my favorites and most notables since August, including:

  • The Prince Edward Island decision –HZPC Americas Corp. – on conversion claims and intangible property
  • The Cheskes adoption disclosure decision, in which the Ontario Superior Court of Justice said that consensual disclosure is a principle of fundamental justice
  • A pair of decisions by the British Columbia IPC on the collection of personal information – the School District No. 75 decision on the psychometric profiling of employment candidates and the University of British Columbia decision on investigations into employee computer misuse
  • The Ontario Divisional Court’s holding in Kitchenam that the deemed undertaking rule protects against disclosure

We hope you enjoy!

Case Report – Court takes broad view of law enforcement “matter” in FOI case

On October 30th, the Ontario Superior Court of Justice (Divisional Court) allowed a judicial review application of an Information and Privacy Commissioner/Ontario order to disclose a police firearms database.

Consistent with its prior jurisprudence, the IPC had held that the content of the database was not exempt from public access because it was assembled because of statutory recordkeeping requirements and not because of a specific and ongoing law enforcement “matter.” The Divisional Court held this was an error:

The plain and ordinary meaning of the word “matter” is very broad. We find that “matter” does not necessarily always have to apply to some specific on-going investigation or proceeding. The Adjudicator, in our view, erred in taking too narrow a view of the word “matter” in this particular case.

In an related application heard at the same time, the Court upheld the IPC’s finding that “law enforcement intelligence” is limited to activity in which information is collected in a covert manner to further the detection and prosecution of crime.

Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2007] O.J. No. 4233 (Ont. Div. Ct.) (QL).