Privacy claim survives based on allegation of pretexting

On October 23rd, the Ontario Superior Court of Justice allowed a borderline privacy claim to proceed because it alleged the deceptive use of personal information to obtain evidence for a family law proceeding.

The plaintiffs brought a motion to vacate a non-dissipation order on their developed property so they could build on another property. In support of the motion, one of the plaintiffs swore and filed an affidavit that included financial data that supported the need to mortgage the developed property.

The respondent to the motion (the former spouse of one of the plaintiffs) lived with a mortgage broker, who took some of the financial data and obtained a letter of interest that suggested construction financing on the undeveloped property was an option. The respondent filed the letter and succeeded in her response to the motion, at which point the plaintiffs took issue with the mortgage broker’s conduct and eventually filed suit.

Justice Hambly was most troubled with the misimpression allegedly given by the mortgage broker to the finance company, who said that it thought the mortgage broker asked for the letter on behalf of the plaintiff. Assuming that the mortgage broker was acting on behalf of the respondent’s counsel (as he pleaded), Justice Hambly said that is was not clear “that a party or a person acting on the instructions of a party can release private personal financial about another party derived from the court files in a family law action to a third party for the purpose of getting an opinion under the guise that he is acting in the other party’s interest without the other party’s consent.”

Rosati v Cornelio, 2013 ONSC 6461 (CanLII).

Lancaster House panel on monitoring job performance and productivity

I spoke today at a Lancaster House labour arbitration conference on a good panel with Arbitrator Paul Craven and union counsel Samantha Lamb, with Sean McGee of Nelligan O’Brien Payne as our chair.

I quite like this Cargill Foods case by Arbitrator Craven, in which he distinguishes between omnipresent surveillance (my words) and other continual collections of personal information that are more benign. His comments on Cargill today highlighted to me that there is no proscription against collecting personal information for the purpose of improving job performance (as is often suggested) but quite a real proscription against collecting personal information in a manner that is highly invasive and a substitute for in-person supervision.

I’ve put my speaking points below. They include some ideas about the BC OPIC’s recent Kone case, a case which further illustrates this point.

IPC accepts “unreasonable interference” argument in e-FOI case

On November 27th, the IPC/Ontario held that a request for twelve years of electronic data on incidents involving houses used for illegal marijuana grow operations and/or clandestine labs was not a request for “records” because the required production process would “unreasonably interfere” with the operations of the Ministry of Community Safety and Correctional Services. As it has done successfully before, MCSCS argued that the security sensitive nature of its data precluded outsourcing. In this case, MCSCS also successfully argued that its data was not structured in a manner that allowed for production without a manual review for responsiveness; at an estimated 10 minutes per record for review, the request would have taken at least 2334 hours to answer.

Ministry of Community Safety and Correctional Services (Re), 2013 CanLII 77834 (ON IPC).

Div Ct affirms decision to give access to government contract

On December 2nd the Divisional Court affirmed an IPC/Ontario decision that granted access to a municipal contract. The decision is an administrative law decision, but the Court does summarize the principles that govern access to government contracts as follows:

absent evidence to the contrary, the content of a negotiated contract involving a government institution and a third party is presumed to have been generated in the give and take of negotiations, not “supplied” by the third party under section 10(1) of the Act [and therefore potentially subject to exemption]
the inferred disclosure exception arises where information actually supplied does not appear on the face of a contract but may be inferred from its disclosure
the immutability exception arises in relation to information actually supplied by a third party which appears within a contract but which is not susceptible to change in the give and take of the negotiation process such as financial statements, underlying fixed costs and product samples or designs

Under these principles government contracts are very accessible, so much so that the IPC has suggested that Ontario access legislation be amended so contract requests give rise to fewer disputes.

On administrative law, the Court applied Newfoundland Nurses and held that the IPC’s “conclusory” reasons were not sufficient grounds for review in light of the record.

Miller Transit Limited v Information and Privacy Commissioner of Ontario, 2013 ONSC 7139 (CanLII).

[Here’s another contract case from November 28th, also written by Justice Himel but too fact specific to warrant a post. Partial access appeal decision affirmed: HKSC Developments LP v Infrastructure Ontario and Information and Privacy Commissioner of Ontario, 2013 ONSC 6776 (CanLII).]

The wheels of justice must turn – intrusion upon seclusion claim dismissed

On November 27th, Justice Carole Brown of the Ontario Superior Court of Justice dismissed a intrusion upon seclusion and negligence claim brought against lawyers who had acted in the defence of a personal injury claim. The claim alleged the lawyers acted unlawfully by:

providing the plaintiff’s medical information to and requesting addendum reports from defence medical exports for the purposes of trial and discussing the contents of the reports at trial;
serving copies of a Rule 30:10 (third-party production) motion; and
obtaining the plaintiff’s university transcript for purposes of trial.

This is not surprising, though the university transcript was apparently obtained in advance of trial after service of a summons to witness. Justice Brown noted that the defendants did not deceive the summonsed witness and that, in any event, the plaintiff herself adduced the transcript at trial.

Baines v Sigurdson Courtlander, 2013 ONSC 6892 (CanLII).

IPC says full balancing applies in mixed personal information cases

On September 27, 2013 the Information and Privacy Commissioner/Ontario issued a significant decision on the exemption from the right of access to personal information in section 38(b) of MFIPPA (and 49(b) of FIPPA by implication) by finding that a disclosure that is presumed to constitute an unjustified invasion of privacy for the purpose of answering a general records access request is not so presumed for the purpose of answering a request for access to one’s own personal information.

Individuals have a right of access to their own personal information that is in the custody or control of Ontario institutions subject to a number of discretionary exemptions, including an exemption that applies if “the disclosure would constitute an unjustified invasion of another individual’s personal privacy.” This exemption often arises in cases in which individuals seek access to personal information about themselves that is contained in complaints and incident reports (which record information from witnesses, complainants and others about more than one person).

The “unjustified invasion” question is informed by the mandatory exemption for unjustified invasion of personal privacy that applies to “general records” access requests. The mandatory exemption includes a provision that deems certain disclosures to be a presumed unjustified invasion. Here is the MFIPPA provision:

14(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;

(d) relates to employment or educational history;

(e) was obtained on a tax return or gathered for the purpose of collecting a tax;

(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;

(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or

(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations.

In Seguin Township, Adjudicator Cropley held that the application of this deeming provision does not end the analysis in a personal information request as it does in a general records request. A head should go on to consider the other relevant factors (including those listed in the Act) to determine if, on the balance, the invasion of privacy to the person other than the requester is “unjustified” in the circumstances. Adjudicator Cropley said that her interpretation consistent “legislature’s intent in creating a separate, discretionary exemption claim that makes a distinction between an individual seeking another individual’s personal information and an individual seeking his own personal information.” It invites both greater access to personal information and greater uncertainty in dealing with access to personal information requests.

Seguin (Township) (Re), 2013 CanLII 64274 (ON IPC).

SCC favours expression over privacy without restraint

Here is Paul Broad and my summary of today’s remarkable Supreme Court of Canada decision in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401. (The Court struck down Alberta PIPA as violating section 2(b) of the Charter.)

I’m more open in this forum to think openly about the decision, which strikes me as being most characterized by its unrestraint. The Court could have issued a pronouncement clearly confined to the precise labour-relations context before it, but did not. The general questions it raises about how privacy legislation operates may be quite well-founded, but are not helpful. The decision today is likely to cause litigation that – after much time and energy – leads to necessary clarification and confinement.

There are “narrowing cues” in the decision. For example, the Court suggests that our federal commercial privacy statute (PIPEDA) is better positioned to withstand a challenge because restrains only commercial expression. The Court also signals that some publicly available information will warrant privacy protection.

These cues are mixed in with big questions that are dealt with briefly and in no factual context. The policy makers should not over-react, and should brace themselves for a fight!

Privacy, Law and the Contemporary Workplace – November 2013 Conference

The Queen’s University Faculty of Law – Centre for Law in the Workplace is hosting a conference in Toronto this November 22nd. I’m on the steering committee, and we’ve put together a great lineup of speakers that features British Columbia Commissioner Elizabeth Denham and top academic and expert practitioners. I’m excited about it and hope you can make it. Details below!

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