SCC says the voluntary identification of an anonymous internet user is unlawful

Last Friday’s Supreme Court of Canada’s decision in R v Spencer renders it unlawful for a telecommunications service provider (or any other commercial actor) to voluntarily identify an anonymous internet user to help the police investigate crime.

Spencer is about the means by which police have investigated the trading of child pornography on the internet – i.e., by identifying objectionable online activity that is associated with an IP address and by asking the service provider who assigned the IP address for “subscriber information” that identifies the holder of the account to which the IP address was assigned. This legality of this means of investigation – enabled by service provider cooperation – has been heavily litigated; in 2012, the Court of Appeal for Ontario held that the police do not breach section 8 of the Charter by obtaining the identity of an anonymous internet user without judicial authorization because such a user has no reasonable expectation of privacy.

The Supreme Court of Canada has now unanimously reached the opposite conclusion. The Court stayed true to the case law that establishes that the protection afforded by section 8 of the Charter should not be debased by framing the activity that the proponent seeks to protect as criminal and therefore unworthy of protection. Although the police may have an entirely legitimate interest in pursuing criminal activity that we all can observe on the open internet, the issue according to the Court was (more neutrally) whether “people generally” have a right to use the internet anonymously.

The Court said “yes” and, in doing so, offered some principled support for online anonymity. It also said that the service provider’s contractual terms and the provision of the Personal Information Protection and Electronic Documents Act that allows for voluntary disclosures to law enforcement were both too ambiguous to weigh against a reasonable expectation of privacy finding.

The Court then held that police requests for subscriber information are not reasonable because they are not  “authorized by law.” Notably, the Court did not consider whether the search was authorized by the common law nor did it consider the interplay between section 8 of the Charter and the common law constraint on police action, which a majority of Court said is less constraining than section 8 in R v Kang-Brown (see para 56). To the contrary, the Court’s decision in Spencer appears to be heavily driven by the proposition that the police only have the power to ask questions “relating to matters that are not subject to a reasonable expectation of privacy.”

Spencer is a very significant decision on the reasonable expectation of privacy concept, internet anonymity and police powers.

R v Spencer, 2014 SCC 43 (CanLII).

SCC affirms broad public sector decision-making privilege

Yesterday the Supreme Court of Canada held that the “advice and recommendations” exemption in Ontario’s freedom of information legislation exempts both suggested courses of action and evaluative analysis from the right of public access.

The advice and recommendations exemption provides public servants with a zone of privacy in which to make good decisions that are free from the pressures of partisan politics. Justice John Evans of the Federal Court of Appeal has described the purpose the exemption as follows:

It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.

The Supreme Court of Canada held that the IPC/Ontario’s interpretation of the advice and recommendations exemption as shielding only the recording of a “suggested course of action that will ultimately be accepted or rejected by the person being advised” was unreasonable. It said that the IPC’s interpretation gave insufficient meaning to the word “advice,” which has a broader meaning than the word “recommendation.” It also said the IPC’s interpretation unduly limited the protective purpose of the exemption.

The Supreme Court of Canada’s ruling applies equally to government ministries and other Ontario FOI institutions. It means that recordings of decision-supportive “evaluative analysis” made by public servants, employees, consultants and others will generally be exempt from the right of public access. This may include, for example, lists of alternatives with comments about advantages and disadvantages or simply lists of alternatives. It may also include, according to the Court, drafts of the same kind of recordings.

John Doe v Ontario (Finance), 2014 SCC 36 (CanLII).

Court dismisses application for information about business partner’s employees

On April 2nd, the Ontario Superior Court of Justice dismissed an application for the disclosure of detailed employee payroll information from an employer to its partner in a joint venture.

The partner was partially responsible for the employer’s wage bill and relied on its right to inspect records under the joint venture agreement. The employer argued that, despite the agreement, it could not disclose employee personal information without violating PIPEDA. As an alternative, the employer offered to have an audit conducted and share the results. The partner felt this was insufficient.

Justice Perell held that he had no power to make an order that would relieve the parties from the PIPEDA consent requirement, stating “s. 7(3)(c) of PIPEDA does not provide a free-standing jurisdiction to grant exemptions.” He dismissed the application without prejudice to the filing of a new application based on the “activation” of another PIPEDA exemption.

Mountain Province Diamonds Inc v De Beers Canada Inc, 2014 ONSC 2026 (CanLII).

NSCA addresses relevance, prorportionality and privacy in the ordering of forensic hard drive reviews

On January 28th, the Nova Scotia Court of Appeal affirmed an order that required a plaintiff to produce a hard drive for forensic review because it contained data relevant to his lost income claim (i.e., the amount of time he spent working at a home office each day).

The Court held that the data was relevant and therefore producible subject to rebuttal by the plaintiff. It set out the following list of factors for Nova Scotia judges to consider in deciding whether or not to grant production in similar cases:

1. Connection: What is the nature of the claim and how do the issues and circumstances relate to the information sought to be produced?

2. Proximity: How close is the connection between the sought-after information, and the matters that are in dispute? Demonstrating that there is a close connection would weigh in favour of its compelled disclosure; whereas a distant connection would weigh against its forced production;

3. Discoverability: What are the prospects that the sought-after information will be discoverable in the ordered search? A reasonable prospect or chance that it can be discovered will weigh in favour of its compelled disclosure.

4. Reliability: What are the prospects that if the sought-after information is discovered, the data will be reliable (for example, has not been adulterated by other unidentified non-party users)?

5. Proportionality: Will the anticipated time and expense required to discover the sought-after information be reasonable having regard to the importance of the sought-after information to the issues in dispute?

6. Alternative Measures: Are there other, less intrusive means available to the applicant, to obtain the sought-after information?

7. Privacy: What safeguards have been put in place to ensure that the legitimate privacy interests of anyone affected by the sought-after order will be protected?

8. Balancing: What is the result when one weighs the privacy interests of the individual; the public interest in the search for truth; fairness to the litigants who have engaged the court’s process; and the court’s responsibility to ensure effective management of time and resources?

9. Objectivity: Will the proposed analysis of the information be conducted by an independent and duly qualified third party expert?

10. Limits: What terms and conditions ought to be contained in the production order to achieve the object of the Rules which is to ensure the just, speedy and inexpensive determination of every proceeding?

The Court also suggested that, although “the semblance of relevance” test for production has been abolished under the Nova Scotia Rules, in gleaning what might ultimately be relevant at trial, “it is better to err on the side of requiring disclosure of material that, with the benefit of hindsight, is determined to be irrelevant rather than refusing disclosure of material that subsequently appears to have been relevant.”

Laushway v Messervey, 2014 NSCA 7 (CanLII)

No reasonable expectation of privacy in bad breath

On January 7th, the Ontario Superior Court of Justice overturned a trial decision that had recognized a Charter-protected expectation of privacy in the odour emanating from one’s breath. A doctor who had treated the accused following a motor vehicle accident told a police officer that the accused’s breath smelled of alcohol, following which the police obtained an warrant to seize a blood sample. The Court also noted that the doctor was not acting as a state agent in making his observation and reporting to the police.

R v Maureen Daly, 2014 ONSC 115 (CanLII).

OPC issues important decision for federally-regulated employers on access to “mixed personal information”

Federally-regulated employers should pay heed to OPC report of findings 2013-004, issued in July 2013. It contains the most detailed guidance on how to administer requests for access to personal information about employees that is received from other employees in confidence – information sometimes called “mixed personal information.”

The OPC adopts the case-by-case balancing of interests approach endorsed by the Federal Court of Appeal in a Privacy Act case called Pirrie: “In determining the right to have access to this information under PIPEDA, the interests of the individuals concerned should be balanced against each other along with the public interest for and against disclosure.”

This test does not support a “bright line,” so the OPC guidance is welcome. It uses 2013-004 to distinguish between two scenarios:

  • The OPC held that notes containing peer feedback that an employer received in conducting a routine performance feedback process were exempt from the right of access. It helped that the employer had provided the complainant with a high-level summary of feedback and helped that the complainant himself had expressly promised to his peers that their feedback would be given anonymously.
  • The OPC distinguished its prior treatment of information gathered in an internal investigation from witnesses when the investigation led to the complainant’s dismissal from employment. The OPC affirmed the complainant’s right of access in this scenario, but specified that the complainant required access to her personal information “as part of her efforts to be re-instated in her position,” which suggests that the complainant had either commenced litigation or that litigation was reasonably contemplated. The OPC also noted, “there were no formal assurance made that the information the investigation participants provided would be kept confidential.”

This gives federally-regulated employers some indication of the OPC’s perspective on a common and significant access issue, though the analysis invited by the Pirrie test is very contextual and outcomes will differ based on a wide range of potentially relevant facts. While the OPC’s decision on access to information gathered from witnesses in an internal investigation might be of some concern to employers, employers cannot provide witnesses with an absolute promise of confidentiality given witness statements may be producible in litigation. If the OPC decision merely suggests that witness statements are likely to be accessible under PIPEDA when litigation is reasonably contemplated it will be rather harmless in its impact.

Bank provides former employee with insufficient access to his personal information, 2013 CanLII 71855 (PCC).

Happy New Year from AAI!

Happy New Year! 

2013 was a good and busy year for your AAI primary contributor. I’ve paddled a traditional paddleboard for about twelve years now but committed to a dedicated year of competition in 2013, knocking off my first Molokai 2 Oahu crossing with a surprisingly good result and a win (!) against a small but core group of prone paddlers at the Chattajack 31 in Tennessee. I’m over 40 but feel like a kid again and am going to channel my current paddling obsession into another year of competition. If all goes well, I’ll repeat the Molokai 2 Oahu crossing and add a first time result in the famed and highly-competitive Catalina Classic. If you’re in Toronto and prone paddling looks interesting get in touch in the Spring. I’d be glad to loan a board and go for a paddle.

This is all to say that AAI suffered slightly from paddling-, family- and practice-induced anemia in 2013. We posted about 75 entries. They were on the most relevant of content, selected more conservatively than in years past, but this was lower output for a blog that’s now has 825 entries since its birth in the summer of 2007. We’ll aim for more of the same in 2014, thank you for reading and hope you enjoy. We hope you had a nice holiday and are feeling invigorated and ready for a good 2014!

Dan

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BC arbitrators embrace openness in face of broad request for grievor annonymity

Two British Columbia arbitrators have held that, despite British Columbia PIPA, shielding a grievor’s identity from the public is an exception to the general rule of openness.

Both cases involved discharge grievances brought by the United Food and Commercial Workers, Local 1518. The Local argued that grievor identities should not be revealed in an arbitration award without individual consent. It based its argument on the consent requirement in British Columbia PIPA and, alternatively, by arguing that anonymity should be the default in a proper exercise of arbitral discretion.

Arbitrator Sanderson issued a brief award on July 22nd. He concluded that the shielding of a greivor’s identity is a matter within an arbitrator’s discretion notwithstanding British Columbia PIPA. Arbitrator Sanderson also held that “the open court principle should prevail in decisions of labour arbitrators” though an anonymity order may be granted as justified based on proof of an “unreasonable impact” on personal privacy.

Arbitrator Lanyon issued an award on October 28th. Like Arbitrator Sanderson, Arbitrator Lanyon held that identification of a grievor is the norm, with a discretion to grant anonymity as otherwise as justified. Arbitrator Lanyon also added:

  • that there is a particular pubic interest in disclosing the identity of those charged with serious disciplinary offences;
  • that an aribtrator’s balancing should be principled, recognizing “the importance of privacy and the difficulties that may arise as a result of publication on the awards on the internet”; and
  • that arbitrators should be open to “lesser protections” in addressing the potential harms associated with publication, at the very least by refraining from publishing sensitive identifying information such as birth dates and social insurance numbers.

Neither arbitrator’s means of resolving the consent requirement in British Columbia PIPA is particularly clear, though both view the issue as governed by arbitral discretion. In applying this discretion, both arbitrators dismissed the Local’s request because it was made as a matter of right and not on any fact-based justification. The Lanyon award indicates that the Local had plans to appeal any award “not in accord with its views of this matter.”

Husband Food Ventures Ltd v United Food and Commercial Workers International Union, Local 1518 (unreported, 22 July 2013, Sanderson).

Sunrise Poultry Processors Ltd v United Food & Commercial Workers, Local 1518, 2013 CanLII 70673 (BC LA, Lanyon).

[Note also that most recent Advocate’s Quarterly (vol 42, 2013) has an article entitled The Protection of Privacy Interests in Administrative Adjudication in Ontario by Chris Berzins, who has written often on this topic. Chris’s most recent article calls on the Ontario/IPC to give better guidance to Ontario administrative bodies on how to to address the privacy issues related to the publication of decisions as well as other privacy issues related to their adjudicative proceedings.]

Arbitrator orders damages for employer’s unauthorized call to personal doctor

On September 25th the Grievance Settlement Board ordered the province to pay $2,500 in damages for making an authorized call to an employee’s personal doctor. Vice-Chair Fisher based the award on the province’s failure to respond appropriately to the breach and evidence of mental distress:

However the Grievor is also entitled to a further remedy for this serious breach of the MOS. I am deeply troubled by the fact that Ministry apparently made no attempt to ascertain who in fact made this improper phone call. One would think that the Ministry would have some interest in trying to determine who in fact made such an inappropriate phone call, but apparently they did not.

The Grievor indicated that these series of events caused him distress and that he felt disgusted by the actions of the person whom made the call to his doctor without his consent. The Grievor is entitled to monetary damages for his distress. Although he did not receive any medical attention for this distress, it does not mean that his distress was not real.

The Union proved the call and not the identity of the caller, but the province did not take steps to rebut the inference that the call came from someone in its employ. The caller obtained information about appointments the grievor had attended from a medical secretary who was subsequently reprimanded for her breach.

Ontario Public Service Employees Union (Spicer) v Ontario (Labour), 2013 CanLII 72580 (ON GSB).