Ontario court says PIPEDA does not apply to LawPro

On August 28th, the Ontario Superior Court of Justice held that LawPro (who insures Ontario lawyers) was entitled to report various allegations made against an insured to the Law Society of Upper Canada.

LawPro made the report after the insured was sued and before it denied him coverage. The Court held that LawPro wrongly denied coverage but dismissed the insured’s breach of confidence and privacy claim.

The Court held that LawPro did not breach PIPEDA because it is not engaged in commercial activity. It explained:

Counsel for LawPro submits, correctly in my view, that the providing of mandatory professional liability insurance to the province’s lawyers is not a commercial activity within the meaning of section 4(1)(a) of PIPEDA. Although LawPro is designed to conduct itself in a financially viable manner, its principal shareholder is the Law Society – a regulatory body – and its mandate entails “a commitment to working with the bar in the public interest over the long term”. LawPro, Our Story: 15 Years of Making a Difference (Lawyers Professional Indemnity Company, 2010), online: http://www.practicepro.ca/LawPROmag/15Anniversary Booklet.pdf, at p. 4. That mandate takes LawPro outside of the type of activities to which PIPEDA applies.

The Court also held that LawPro acted properly in making the report notwithstanding the insured’s argument that his communications with LawPro were made to a solicitor in his and LawPro’s common interest and were therefore subject to solicitor-client privilege. The Court held that LawPro had a duty to report that superseded solicitor-client privilege.

(Is there really such a duty? I question whether the decision merely suggests that LawPro was entitled, as a matter of public interest, to report.)

Cusack v The Lawyers’ Professional Indemnity Co., 2013 ONSC 5511 (CanLII).

SCC addresses the line between hunch and suspicion

The Supreme Court of Canada issued two decisions today that attempt to define the “reasonable suspicion” standard – a relaxed standard that allows for searches in the absence of prior judicial authorization in certain investigative contexts, including sniffer dog searches and school searches, for example.

The more principled of the two decisions is R v Chehil, which involves a sniffer dog search at an airport that the police conducted after determining that the accused fit the profile of a drug carrier: (1) he was traveling on a one-way plane ticket; (2) his flight originated in Vancouver; (3) he was traveling alone; (4) he purchased his ticket with cash; (5) his ticket was the last one purchased before the flight departed; (6) he checked one piece of luggage; (7) his flight was overnight; (8) his flight took place mid- to late-week; and (9) he flew on a WestJet flight. These factors, based on their training and experience, led the police to form a suspicion that the Court unanimously held was reasonable.

Justice Karakatsanis wrote the decision in Chehil. She held that the existence of a reasonable suspicion must be assessed against the totality of the circumstances. The police must assess all the objective factors that weigh for and against the possibility of criminal behavior and may have a reasonable suspicion even if the factors (each on their own or together) could support an innocent explanation.

Though the ratio of Chehil is therefore permissive, Justice Karakatsanis does state that the police must be subject to “rigorous judicial scrutiny”:

The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer’s training and experience.

Evidence of police training and experience was a prominent feature of the dialogue in R v MacKenzie, a case in which the Court split five to four in affirming a police search.

MacKenzie is about a sniffer dog search that the police executed after conducting a highway traffic stop. The factors at issue were about guilty appearance and demeanor and more equivocal than in Chehil: the accused slowed down and pulled over upon sight of the police; he was nervous when confronted, he was sweating (on a warm day); he was breathing rapidly; he had pinkish eyes; he was driving west to east; he corrected an initial response given about travel dates. The police evidence about the probity of the factors was also more qualified; the police testified that the factors were associated with drug carrying, but not strongly.

The majority and minority in MacKenzie differ on how much weight to give a police opinion that is based on training and experience. Both accept that police opinions based on training and experience should be considered in assessing the probity of the factors. Justice Moldaver (for the majority) says that deference is not “necessarily owed to a police officer’s view of the circumstances” but that that police should be “allowed to carry out their duties without undue skepticism.” Justice LeBel (for the minority) says quite clearly that the police are owed no deference.

R v Chehil, 2013 SCC 49 (CanLII).

R v MacKenzie, 2013 SCC 50 (CanLII).

The ins and outs of the e-FOI process

Here’s a presentation I delivered today in an Ontario Hospital Association webcast. I’ve been following “e-FOI” developments for a while and was happy to finally build and deliver a presentation to lend some structure to the topic. Stay tuned for more!

CanLII law, government and open data conference and hackathon

Those interested in access to government information and open data might like these presentations, given today at the CanLII conference in Ottawa.

I watched two sessions, one by federal information commissioner Suzanne Legault about legislative reform and another by Glen McGregor of the Ottawa Citizen about “data journalism.”

Ms. Legault’s clear focus of concern is on electronic communications, which contain data that is unstructured and extremely difficult to deal with. She calls instant messages “black holes into which information hides or disappears.” Ms. Legault ties this to the duty to record, a topic I’ve touched upon here.

Mr. McGregor relies heavily on access legislation in his (fascinating) work and gives a good reporter’s perspective on database requests – i.e., requests for structured data. He tells a good story about a database request that started with a $100,000 plus fee and ended with a $40 fee.

Ms. Legault is very negative. Mr. McGregor is very optimistic. The juxtaposition is notable.

Voluntary bank disclosure to police lawful

On August 7th, Justice Fuerst of the Ontario Superior Court of Justice held that the police did not breach an individual’s reasonable expectation of privacy by receiving information from two banks and using the information to obtain restraint orders.

The judgement is notable for the Court’s recognition of the banks’ legitimate interest in providing voluntary assistance to the police. Justice Fuerst said:

The bank was directly implicated in allegations of money-laundering. It had a legitimate interest in preventing the criminal misuse of its services, particularly in circumstances where accounts associated to the applicant were alleged to be offence-related property subject to forfeiture.

Disclosing personal information to the police (within certain parameters) is permitted by section sections 7(3)(c.1) and 7(3)(d) of the Personal Information Protection and Electronic Documents Act, which Justice Fuerst noted in her reasonable expectation of privacy analysis. Section 7(3)(d) authorizes disclosures initiated by commercial organizations. Notably, Justice Fuerst held that section 7(3)(d) allows for some two-way dialogue between the disclosing organization and the police: “It is unreasonable to interpret s. 7(3)(d) so narrowly that police officers to whom information is given by organizations like banks about possible criminal activity can do no more than passively receive it and are prevented from asking for specifics or details necessary to take steps in response.”

R v Kenneth James, 2013 ONSC 5085 (CanLII).

Non-party witness can receive document subject to litigation privilege

On August 23rd, the Supreme Court of British Columbia held that a non-party witness should have access to a statement she gave to an insurance adjuster even though it was subject to the adjuster’s litigation privilege. It said:

Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement. The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it. I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below. I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties. The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake. The mistake can be only embarrassing to the non-litigant and/or it can distort the evidence before the court. Neither is desirable.

Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective. The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it. She did not do that. In my view, she did not have to do it and nor should she now be at a disadvantage greater than a party for failing to do it.

It ordered the statement to be produced to the witness with the proviso that it the witness keep the statement confidential.

Minnie v ICBC, 2013 BCSC 1528 (CanLII).

Twin BC commissioner reports okay use of telematic data

On August 28th, the British Columbia OIPC affirmed two elevator companies’ (Kone’s and Thyssenkrup’s) use of telematic data for the purpose of managing their service employees.

The outcome is not surprising. The Commissioner herself affirmed another elevator company’s fleet management program in a thoroughly-reasoned decision last December. Also, all Canadian decisions (by privacy regulators and arbitrators) have recognized the legitimacy of such programs (which rest on the collection of location data and vehicle operation data). Kone’s program was unique in that it collected data from cellar telephones (rather than vehicle units). The OIPC held that Kone’s program collected more sensitive personal information but was nonetheless reasonable.

The decisions are notable for the OIPC’s conclusion that an organization in BC does not need a stand alone GPS or Telematics policy to comply with the notice and “policies and practices” requirements in BC PIPA. It held that Kone complied with its obligation by giving a detailed PowerPoint presentation that outlined the specific purposes for which it would use employee personal information in advance of implementing its program. Thyssenkrup breached its obligations; it had difficulty establishing that it had a formal communication program that addressed the purposes of its program in any detail.

Order P13-01(28 August 2013).

Order P13-02 (28 August 2013).

Employer’s Privacy and Confidentiality Policies Upheld by Court

A recent decision of the Supreme Court of British Columbia underscores that courts will view any breach of an employee’s right to privacy and confidentiality in the workplace as a serious infraction.

In Steel v. Coast Capital Savings Credit Union, the plaintiff was employed on the Helpdesk where she had access to confidential information, including personal folders of other employees. The employer had policies in place regarding access to private and confidential information, including a protocol to be followed by Helpdesk employees when they needed to access the personal folders in order to provide technical assistance. The plaintiff was aware of these policies.

When the employer learned the plaintiff, a 20 year service employee, had accessed confidential information contained in a personal folder without following the protocol in place, it terminated her employment on the basis that her actions constituted a severe breach of trust. The Court upheld that termination, finding that as a member of the Helpdesk, the plaintiff was in a position of “great trust” and she worked for an employer (a credit union) that operated in an industry where trust was of “central importance”. It stated:

[27] It was not practicable for Coast to monitor which documents Ms. Steel accessed and for what purpose. The employer had to trust Ms. Steel to obey its policies and to follow the protocols. It had to trust Ms. Steel to only access such documents as part of the performance of her duties and to follow the protocols when she did so. Such trust was fundamental to the employment relationship in relation to Ms. Steel’s position. It was, to use the language of Iacobucci J. in McKinley, “the faith inherent to the work relationship” that was essential to this employment relationship.

The willingness of the Court to uphold the cause termination of a 20 year employee for a violation of the employer’s policies sends a strong signal that courts will not hesitate to enforce and apply clearly drafted employer privacy and confidentiality policies, in order to protect confidential information.

Steel v. Coast Capital Savings Credit Union, 2013 BCSC 527 (CanLII)

FC confirms ATIA institutions can make only one access decision

On July 11th, the Federal Court held that an Access to Information Act institution’s access decision was null and void because it had made a prior access decision in response to the same request. It confirmed that institutions can only make one decision, though they may make supplementary disclosure based on an Information Commissioner recommendation (pursuant to section 29) and change their position in responding to a section 44 application to Federal Court.

Porter Airlines Inc v Canada (Attorney General), 2013 FC 780 (CanLII).