Ont CA addresses inadvertent disclosures and privilege waiver

On July 15th, the Court of Appeal for Ontario said the following about when an inadvertent disclosure of a solicitor-client communication will result in the waiver of privilege:

Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:

  • The way in which the documents came to be released;
  • Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
  • The timing of the discovery of the disclosure;
  • The timing of the application;
  • The number and nature of the third parties who have become aware of the documents;
  • Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and
  • The impact on the fairness, both actual or perceived, of the processes of the court.

See Airst v. Airst (1998), 1998 CanLII 14647 (ON SC), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and Chapelstone Developments Inc. v. Canada, 2005 NBCA 96 (CanLII), 191 C.C.C. (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.

In the circumstances, the Court held that a party had not inadvertently waived privilege. The disclosure, however, was not without a consequence. The Court said, “This is not a case for costs, given that the issue arose as a result of the moving party’s own counsel’s error.”

R v Ward, 2016 ONCA 568 (CanLII).

Ont CA addresses privilege in communicating a sex assault allegation

On July 20th, the Court of Appeal for Ontario allowed an appeal of a civil sexual assault finding and, at the same, time awarded defamation damages to the party alleged to have committed the assault.

The matter dealt with assault and sexual assault claims brought by a sister against her older brother. She alleged the assaults occurred many years ago, the action being commenced based on “recovered memory.” Before the sister commenced her claim, she came out with the allegations in an e-mail to her brother, his wife and children, her two sisters and their families, her daughters and a woman she had been friends with in high school. She then sent similar communications to the same group as well as to her own lawyer and a lawyer involved in the administration of her mother’s estate.

The Court held that communication to the family members and lawyers was subject to qualified privilege but communication to the friend was not. The privilege in communicating with the family members was rooted in the sister’s need to “prevent future abuse or seek out emotional support” and the recipient’s reciprocal interest in deciding whether to take “protective action.” The privilege in communicating with the lawyers appears to be rooted in the nature of their retainers. Regarding the friend, the Court said:

However, there was no duty or interest on the part of the respondent’s former high school friend to receive the respondent’s communications. The respondent admitted that their friendship did not last after high school had ended and that they only briefly reconnected after the death of the respondent’s mother.  She did not testify as to her reason for copying the friend on the defamatory emails. There was no evidence that she asked her friend for assistance or advice, or that the friend ever responded to her communications. In these circumstances, there was no legitimate interest to be protected by the statements; as a result, they did not merit protection under the auspices of qualified privilege:  R.T.C. Engineering, at para. 15; Milgaard v. Mitchell (1996), 1996 CanLII 6950 (SK QB), 151 Sask. R. 100 (Q.B.), at para. 36.

Assault and sexual assault survivors can describe their allegations in seeking assistance and pursuing complaints, but may be liable for communicating their allegations too broadly. This finding gives fairly permissive scope to the (protective) qualified privilege doctrine, but also illustrates that its protection is has limits.

The Court also made a finding about the use of opinion evidence for the purpose of assessing credibility. This use of evidence is impermissible as “oath helping” and, in this case, rendered the trial judge’s sexual assault finding erroneous.

Whitfield v Whitfield, 2016 ONCA 581 (CanLII).

BCSC dismisses privacy claim against lawyer

On July 26th, the Supreme Court of British Columbia dismissed a claim against a lawyer based in part on his service of application materials and based in part his conveyance of information about the plaintiff in a casual conversation with another lawyer.

The application that became the subject of the claim was made in an earlier family law proceeding. It was for production of financial documentation from the plaintiff relating to seven companies in which he had an interest.

The defendant represented the plaintiff’s wife. He served the companies with application materials (a notice plus affidavit) without redaction and in an unsealed envelope. Apparently his process server left the materials with two unrelated companies in an attempt to affect service.

The Court dismissed this claim because the lawyer was at all times acting as counsel in furtherance of his client’s interest and was protected by absolute privilege. Justice Griffin commented favorably on the lawyer’s conduct in any event, declining to give effect to the plaintiff’s argument about the need for redaction and sealed envelopes and giving wide berth to counsel’s judgement. She said:

As a matter of ethics, professionalism and good practice generally, I do agree that lawyers should consider the privacy of litigants and not unnecessarily reveal the private information of the opposite party nor should they seek to embarrass the opposite party… But that does not mean that an action lies for a lawyer’s steps in the conduct of litigation if the opposite party does not like how the lawyer exercised his or her judgment in bringing and serving applications which disclose private information.

The “casual conversation claim” arose from a discussion the lawyer had with another lawyer during a break in discovery in another case. The lawyer said he represented a woman whose former husband had sold a business in Alberta for $15 million and that the couple had three young children. Another person who was present came to believe the lawyer was speaking about the plaintiff.

The Court dismissed the claim because the plaintiff had not proven the fact of the $15 million sale was private. More notable is Justice Wilson’s obiter finding that the lawyer’s disclosure was not “wilful” because he could not reasonably have expected the plaintiff to be identified. She said:

I have found the question of whether Mr. Lessing was wilful in violating Mr. Duncan’s privacy to be a difficult one. On balance, however, because the information he stated was very innocuous; he did not reveal names of the persons or the companies; and there is no evidence that he ought to have known someone in the room would know Mr. Duncan, I find that it cannot be said that he “knew or should have known” that what he said would breach Mr. Duncan’s privacy. I therefore find that if Mr. Lessing did breach Mr. Duncan’s privacy it was not a wilful violation of privacy within the meaning of the Privacy Act.

Duncan v Lessing, 2016 BCSC 1386 (CanLII).

Ont CA majority says no Charter right to text in private

In a case that speaks to the bounds of digital privacy, the Court of Appeal for Ontario recently held that a text message sender has no reasonable expectation of privacy in text messages stored on a recipient’s phone.

Text messaging is a unique form of communication. To text certainly invites the feeling of engaging in a private conversation, but a sender’s texts are received by another person who typically has no duty of confidence and who has exclusive control of the “inbox” in which the texts are invariably left to reside. Like digital messages of all kinds, once sent, a text message is beyond control.

The question for courts in these matters is a normative one – what ought to be treated as private in our society? – so the loss of control over information does not necessarily invalidate a Charter-based privacy claim. Nonetheless, there’s a real practical consequence to the loss of control that Courts must reckon with. If they do not, we risk unduly restricting the free flow of information and free expression. Privacy is always a matter of striking an appropriate balance.

The Court issued its balance-striking judgement about text messaging on July 8th. Justice MacPherson wrote for the majority that denied privacy protection, and held that control was of “central importance” in the context. He wrote:

The facts of this case demonstrate that, unlike in Spencer and Cole, the ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.

This is far from being a question of whether the appellant had “exclusive control” over the content. He had no ability to regulate access and no control over what Winchester (or anyone) did with the contents of Winchester’s phone. The appellant’s request to Winchester that he delete the messages is some indication of his awareness of this fact. Further, his choice over his method of communication created a permanent record over which Winchester exercised control.

It has never been the case that privacy rights are absolute. Not everything we wish to keep confidential is protected under s. 8 of the Charter. In my view, the manner in which one elects to communicate must affect the degree of privacy protection one can reasonably expect.

Justice Laforme dissented – clearly differing from the majority on the importance of control, citing numerous cases in which the loss of control has not precluded the recognition of a Charter-protected privacy interest, stressing that privacy is a normative concept and in general ascribing great value to texting in private.

While the debate between majority and minority about the significance of control and standing to raise section 8 of the Charter is important, the majority and minority do not differ by much in principle. Where they clearly do differ is on the value they ascribe to text messaging. To start with the minority, Justice Laforme says texting is the “modern version of a conversation,” and is nearly romantic about it: “In my view, these private communications are an increasingly central element of the private sphere that must be protected under s. 8.”  Justice MacPherson, in contrast, has no interest in constitutionalizing texting. In a humorous and effective appeal to authority, he links to the Ontario health and physical education curriculum, under which we teach 12-year-olds across the province, “If you do not want someone else to know about something, you should not write about it or post it.” This, of course, dovetails with Justice MacPherson’s important point about electing how to communicate. To people older than 12, we typically say something like, “You want privacy, pick up the phone.”

R. v. Marakah, 2016 ONCA 542 (CanLII).

Federal Court of Appeal reverses certification of privacy class action

On June 24th, the Federal Court of Appeal overturned the certification of a number of causes of action in a class action that claims damages for the sending of a letter that identified the sender as the “Marihuana Medical Access Program.”

The intended recipients were, in fact, individuals authorized to possess medical marihuana. They claim the letter disclosed this fact and exposed them to various harms. The Federal Court certified the action last July based on a finding that the claim set out a number of valid causes of action.

The Federal Court of Appeal allowed the action to proceed based on claim alleging that the government’s negligence (and breach of confidence) caused the following damage: costs incurred to prevent home invasion, costs incurred for other personal security, damage to reputation, loss of employment, reduced capacity for employment, and out of pocket expenses. The Court of Appeal affirmed that a claim for such damages is actionable and “not entirely speculative.”

The Federal Court of Appeal overturned certification of three other causes of action:

  • It held that the pleading did not establish a valid claim of contractual breach because it set out no exchange of promises backed by valuable consideration. The existence of an enforceable contractual contract was also not apparent in the circumstances given the arrangement between government and the representative plaintiff was invited and structured by statute.
  • It held that the pleading did not establish a valid claim for public disclosure of private facts because the pleadings did not support a finding that the government “published” private facts: “…the concept of ‘publicity’ means that ‘the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.'”
  • It held that the pleading did not establish a valid claim for intrusion upon seclusion because it did not support a finding of the required state of mind (i.e., intent or recklessness): “At best, the material facts pleaded support the notion that an isolated administrative error was made.”

The Court’s limitation of the claim to one based on negligence is significant because it precludes access to “moral damages.” While the Court said the pleaded special damages were not so speculative to disallow the claim, it’s questionable whether the actual damages suffered by members of the class amount to much at all.

Canada v John Doe, 2016 FCA 191.

Privacy and accommodation of disability in Ontario

Last week I sat on a panel about privacy and the accommodation of disability. I sat opposite union counsel Andrew Astritis from Raven Cameron, and Emma Phillips of Goldblatt Partners moderated. Andrew and Emma both know privacy law well, and we had a fun, engaging and even balanced discussion! I’ve put my “paper” and speaking notes below.

Arbitrator orders $25,000 in damages for privacy breach

Arbitrator Stout’s April 28th decision has received ample coverage, but I’d like this site to be a relatively complete repository of privacy damages awards. Mr. Stout ordered an employer to pay $25,000 in general damages after a supervisor disclosed an employee’s visual disability to three other employees after learning of the disability in a prior arbitration proceeding. The supervisor apologized orally and in writing, which presumably mitigated the breach. He did not testify, however, and Mr. Stout inferred that the disclosure was undertaken as retaliation for the outcome of the prior arbitration, a significant aggravating factor. The grievor also suffered distress that required him to undergo medical treatment and the employer “did very little” to remedy the breach in its response (e.g., discipline on the supervisor).

Canadian Pacific Railway Company v Teamsters Canada Rail Conference, 2016 CanLII 25247 (ON LA).

Some relevant comments on e-discovery in recent Ontario order

Master Callum McLeod – long time member of the Sedona Canada Working Group – was recently appointed a judge of the Ontario Superior Court of Justice. On June 6th, still sitting as master, he issued an order that addressed a number of e-discovery issues. Here are some snipets of Master McLeod’s views.

…on the utility of manually producing a Schedule A

This is not a new problem. But it is a problem that is greatly compounded when dealing with any significant amount of electronically stored information. In such cases, listing and describing all relevant documents is virtually impossible and threatens to become a hugely expensive make work project of little practical utility. What is required instead is to unearth the important and probative documents that will be necessary to prove or disprove facts that are in issue.

Under the Sedona Canada Principles incorporated into the rules, counsel are to actively co-operate in formulating a practical discovery plan. Counsel are required to seek agreement on the subset of potentially important relevant information and how it is to be located, preserved, exchanged, organized, described and retrieved. Some form of mutually acceptable electronic indexing that permits rapid identification and retrieval of each document should be adopted for purposes of production, discovery and trial. It is for this reason that the parties are now expected to engage in a collaborative discovery planning exercise in which they are to robustly apply the principle of proportionality.

…

Of course production through affidavit of documents process is not the end of the story. There are at least four other ways to extract documents from the other party. The first is a demand to inspect documents under Rule 30.04, the second is by listing documents in the Notice of Examination, the third is by cross examination on the affidavit of documents as part of the discovery process and the fourth is by obtaining disclosure and undertakings through the discovery process itself.

… on the use of shared document repositories

In the case at bar, the record is replete with technical production problems and unilateral attempts to satisfy production obligations. Malfunctioning USB keys, courier delivery of hard copies, delivery of copies on DVDs and refusal to make use of web based technology such as Google Docs are some examples. While there are many issues with cloud based storage of sensitive documents almost all of these can be overcome. The advantages and speed of a secure web based document vault utilizing standardized document formats and software should be readily apparent. Correctly utilized, such tools can eliminate production delays and arguments about who produced what and when.

… on providing access to cloud-based evidence as an alternative to production

As I understand it, the defendant is not taking the position that the logs are not relevant, they are simply inviting the plaintiffs to access the information themselves. They have not listed the Google logs in the affidavit of documents. As I indicated earlier, there is much to be said for web based production and the use of document vaults. This is not the same thing as inviting the other party to access the originals of the web site and to extract their own information without concern for forensic continuity or admissibility of the evidence. Counsel should not be put in the position of becoming a witness as to the provenance of documents.

For more, see:

Thompson v Arcadia Labs Inc, 2016 ONSC 3745 (CanLII).

Why “Border Security” was shut down

The media has reported that a Report of Findings recently issued by the Privacy Commissioner of Canada (OPC) led to the cancellation of the television show “Border Security” – a privately produced documentary that covered the operations of the Canada Border Services Agency (CBSA).

How is it that the CBSA was made liable for a breach of the federal Privacy Act for intrusive action taken by an arm’s-length producer?

In its 26-page report the OPC does probe at the degree of control the CBSA exercised over the producer’s activity but ultimately declined to find that the producer’s collection of personal information was also the CBSA’s collection of personal information. The OPC explained:

However, the question of whether the CBSA can be said to be participating in the collection of personal information for the purpose of the Program is not determinative of our finding in this case. In our view, the CBSA is first collecting personal information in the context of its enforcement activities and thereby has a responsibility under the Act for any subsequent disclosure of the information that is collected for, or generated by, such activities.

Following our investigation, we are of the view that there is a real-time disclosure of personal information by the CBSA to Force Four [the producer] for the purpose of Filming the TV Program. Under section 8 of the Act, unless the individual otherwise provided consent, this personal information collected by the CBSA may only be disclosed for the purpose(s) for which it was obtained, for a consistent use with that purpose, or for one of the enumerated circumstances under section 8(2).

By this reasoning the OPC distinguishes the information flow under assessment from one in which CBSA is simply being observed while conducting its operations. The OPC finding seems to rest on the CBSA’s purposeful provision of access to personal information that would have otherwise been inaccessible – access that invites a “real-time” disclosure of personal information. The OPC applies a novel, expansive conception of a “disclosure.”

From time-to-time organizations are faced with a concern about the potentially invasive activities of others on their property or otherwise within their domain. Most often, they can take comfort in the availability of an “it’s not my collection and not my doing” defence. This OPC finding illustrates when such a defence might not be available.

Report of Findings dated 6 June 2016 (PA-031594).

The Saskatchewan OIPC okays health authority’s incident response

On June 8th, the Office of the Saskatchewan Information and Privacy Commissioner issued an investigation report in which it held that a regional health authority responded appropriately to a privacy breach. Most notably, the OIPC reinforced a recommendation about notification included in its 2015 publication, Privacy Breach Guidelines. The recommendation:

Unless there is a compelling reason not to, [health information] trustees should always notify affected individuals.

This is a novel and conservative variation on the normal harms-related principle that guides notification. It is simply a recommendation – and one directed only at public agencies and health information trustees in Saskatchewan. It is notable nonetheless, however, in that it reflects an arguably developing public sector norm. Right or wrong, there is a unique pressure on public sector institutions to notify that should always be considered as part of a public sector institution’s careful response to a data handling incident.

Investigation Report 101-2016 (8 June 2016).