Why your author has been quiet of late

I’m not one to apologize for not blogging enough! This blog has been a labour of love since 1997 and has always been about my own need for exploration, learning and expression.

I’m happy, though, to explain that I’ve been busy with practice and also side tracked by some big adventures with my maturing family – most involving the ocean and a paddleboard or surfboard.  Here’s a video from last month’s adventure – one involving a 22 mile paddle (prone) to Catalina Island (off of LA), running the Catalina Marathon the next day and then paddling 22 miles back. I’ve never had a nature experience quite like the one we had paddling over (as you’ll see). With all the craziness in the world there still is plenty for which to be grateful.

Best regards and thank you for reading.

Dan

The Australian “Ben Grubb” decision and its link to Canada

There’s been some talk about the Federal Court of Australia’s recent decision in the “Ben Grubb” case – Mr. Grubb being the journalist who requested and was denied access to certain data related to his mobile phone usage from his carrier. Although the data was linked to Mr. Grubb’s mobile phone usage, the Court held it was not “information about” Mr. Grubb and therefore was not “personal information” that Mr. Grubb could access under the Australia Privacy Act. The Court explained:

…in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual. This will require an evaluative conclusion, depending upon the facts of any individual case, just as a determination of whether the identity can reasonably be ascertained will require an evaluative conclusion.

In some instances the evaluative conclusion will not be difficult. For example, although information was provided to Mr Grubb about the colour of his mobile phone and his network
type (3G), we do not consider that that information, by itself or together with other information, was about him. In other instances, the conclusion might be more difficult. Further, whether information is “about an individual” might depend upon the breadth that is given to the expression “from the information or opinion”. In other words, the more loose the
causal connection required by the word “from”, the greater the amount of information which could potentially be “personal information” and the more likely it will be that the words
“about an individual” will exclude some of that information from National Privacy Principle 6.1

In other words, there must be more than a link between information and an individual for the information to be “personal” information. The information must also reveal something “about” the person in a way that engages a reasonable expectation of privacy. I am not sure whether this “guts” the rights provided by the Australia Privacy Act as reported, but this reasoning has been a feature of Canadian law, most notably supported in our Federal Court of Appeal’s Nav Canada case – an authority the Australian court relied upon in determining the outcome of Mr. Grubb’s access request.

Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 (19 January 2017).

ONSC awards $15,000 in privacy damages

On December 12th of last year, Justice Fragomeni of the Ontario Superior Court of Justice ordered a man to pay $15,000 in damages to his estranged spouse for surreptitiously installing a camera in a bathroom (prior to separation) to take photos “for a couple of days.” There’s little analysis about liability. Here are the damages factors listed by the Court:

1.   the nature of the intrusion. It took place in a bedroom and bathroom, places which are very private. The privacy interests of Sheth were significant.

2.   the intrusion takes place within a domestic relationship

3.   although Sheth was embarrassed and shocked at the intrusion no medical information was filed to support and establish an evidentiary basis to find any significant effect on Sheth’s health or welfare

4.   the conduct of Patel in lying about the intrusion at his Discovery and even attempting to blame Sheth herself for the camera being installed is extremely aggravating and demonstrates a lack of any insight into what he did as being wrong.

Note also that the photos recovered and tendered in evidence by the plaintiff did not show anything explicit.

Patel v Seth, 2016 ONSC 6964 (CanLII).

Newfoundland court says salary information not accessible to public

On December 22, the Newfoundland and Labrador Supreme Court (Trial Division ) held that the amount of taxable income earned by a Newfoundland public sector employee is not accessible under the Newfoundland Access to Information and Protection of Privacy Act. 

The analysis ought to have turned exclusively on the deeming provision embodied in section 40(2)(f), which reads as follows:

A disclosure of personal information is not an unreasonable invasion of a third-party’s privacy where… (f) the information is about a third party’s position, functions or remuneration as an officer, employee or member of the public body or as a member of a Minister’s staff

This “deeming provision” is intended to foster transparency regarding public sector employment and compensation. The word “remuneration” is used in contrast to the phrase “salary range” that appears in other provinces’ access and privacy statutes – an indication that the Newfoundland legislature intended information about the specific salary earned by every public sector employee to be accessible to the public. This intent is consistent with a recommendation made by a legislative committee, which stated “The Committee concludes it is unfair to single out employees at any particular income level, and recommends that salaries and benefits of all employees a public bodies be subject to disclosure.” The language of the statute and the legislative context therefore strongly suggest that the Newfoundland legislature chose against a “sunshine list” model of public sector salary disclosure that requires proactive disclosure of salaries over a threshold amount  and, instead, created a broad right of access to specific salary information upon request. 

The Court failed to grasp this text and context and accepted an argument that the above deeming provision does not apply because does not specify that it precludes the disclosure of remuneration information together with an individual’s name. It ought to have accepted the Government’s and the Privacy Commissioner’s argument that such specification is unnecessary given the function of the deeming provision. This decision should be appealed.

NLTA v Newfoundland and Labrador English School District, 2016 NLTD(G) 211. 

NLCA holds that implied undertaking does not apply to medical report

On December 21st the Newfoundland and Labrador Court of Appeal held that the implied undertaking does not apply to a medical report produced in a related personal injury action.

The plaintiff was injured in a motor vehicle accident and submitted to an examination in his action against the driver. That action settled, but the plaintiff continued a separate action against his own insurer for disability benefits, which prompted the insurer to seek the report. The Court commented:

In this case, it is difficult to see how the implied undertaking rule is engaged.  A medical report, being factual in nature, would be neutral insofar as encouraging the provision of complete and candid discovery, one of the rationales for the rule.  Further, the proposition stated by Binnie J. [in Juman v Doucette] that “whatever is disclosed in the discovery room stays in the discovery room” loses its impact and relevance when considered in the context of the factual nature of medical reports and the operation of rules 31 and 34.

The Court also held that the undertaking – implicit rather than express in Newfoundland – is “overridden” by the provisions of the Newfoundland Rules of the Supreme Court that favour production of medical reports.

Unifund Assurance Company v Churchill, 2016 NLCA 73 (CanLII).

Arbitrator admits surreptitious audio recording

On October 27th, Arbitrator Dorsey held that a surreptitious audio recording should be entered into evidence because its probative value outweighed the potential prejudice to harmonious workplace relations. He was impressed that the recording was made spontaneously at a work team dinner (rather than during work proper) and that “tone” of the communications recorded would be relevant.

Arbitrator Dorsey commented:

I find the balance between real or potential prejudicial effect of an unplanned recording in the not staged, relaxed situation away from the stress of being on the fire line is outweighed by the probative value of having an accurate record of apparently unprovoked words and tone that became the subject of a complaint and the employer’s disciplinary decision.

The effect the recording might have on either the presentation of the union or employer’s case is secondary to the prejudicial effect exclusion of the recording will have on the credibility and acceptability of the outcome of this arbitration process.

It will be inexplicable to the employee witnesses at the dinner table why their recollection of the words and tone over 15 months ago, which will be subject to time consuming dissection to expose differences in recollection, is the approach preferred to determining what was said in what tone over listening to a recording of what was said with whatever limitations and frailties it might have. They would be justified in regarding such a fact-finding process as an anachronism lacking common sense; operating in a world in which they do not live; and should be treated with a corresponding lack of respect.

BCGEU and BC Public Service Agency (27 October 2016, Dorsey).

Arbitrator says reference to record in opening statement does not extinguish implied undertaking

On September 9th, a British Columbia arbitrator held that a Union’s reference to a “secret recording” in an opening statement did not bring the implied undertaking to an end. The employer, he therefore concluded, breached the undertaking by attempting to investigate the making of the recording after the Union made its opening statement and before the recording was adduced in evidence. The arbitrator referred to the leading cases, which establish that the undertaking comes to an end when records are adduced in evidence. He also held that, in arbitration (which lacks pleadings), it is good policy to sustain the undertaking beyond opening statements because doing so encourages parties to make fulsome opening statements.

Fortis BC Energy Inc and IBEW, Local 213 (9 September 2016, Peckles).

BCCA discusses redaction of information from otherwise relevant documents

On December 12th, the British Columbia Court of Appeal adopted the following statement from North American Trust Co. v. Mercer International Inc. (1999) 1999 CanLII 4550 (BC SC), 71 B.C.L.R. (3d) 72 (S.C.) on the redaction of irrelevant or sensitive information from otherwise relevant documents:

Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of the document is producible if a part of it relates to a matter in question. But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues.

This same statement has been adopted as reflective of Ontario law by the Ontario Superior Court of Justice: see McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII).

Este v. Blackburn, 2016 BCCA 496 (CanLII).

 

BCCA issues decision on implied waiver of privilege

On November 29th, the Court of Appeal for British Columbia held that a party must voluntarily inject into the litigation legal advice it received or its understanding of the law before waiver of solicitor-client privilege can be implied. It is not enough, according to the Court, for the privilege holder’s state of mind to be relevant. The Court therefore held that a party had not waived privilege over legal advice obtained that related to a misrepresentation by another that it pleaded it had reasonably relied upon.

Soprema Inc. v. Wolrige Mahon LLP, 2016 BCCA 471 (CanLII).

SCC issues decision lending weight to litigation privilege

On Friday, the Supreme Court of Canada held that a legislative provision cannot abrogate litigation privilege unless it does so with clear, explicit and unequivocal language. 

This principle was established for solicitor-client privilege by the Court in its Blood Tribe decision of 2008. It now extends to litigation privilege.

The Court also used Friday’s decision to establish litigation privilege as a “fundamental principle of the administration of justice.” It affirmed:

  • litigation privilege is a class privilege, entailing a presumption of immunity from disclosure once the conditions for its application have been met;
  • litigation privilege is only subject to clearly defined exceptions and not to a case-by-case balancing exercise; and
  • litigation privilege can be asserted against third parties, including third parties who have a duty of confidentiality.

Litigation privilege retains its status as a kind of junior privilege to the almighty solicitor-client privilege. According to the Court, however, litigation privilege is an important, class privilege that behaves like a class privilege. Arguments that litigation privilege must give way to the truth seeking function because of the circumstances will now ordinarily fail. 

Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 (CanLII).