Information Roundup – Volume 2013, Edition #1

The “Information Roundup” is back!

This is something I’ve run in the past that features a compilation of tweets plus a personal note of some kind. I’m going to bring it back because I’ve started tweeting links to information and privacy decisions that don’t quite deserve a full post and want a good record of them somewhere. It will also be nice to add a little bit of colour back into the blog.

So here’s the first list for 2013, with a more to come as we go:

As for me, I’m quite obsessed by paddling (a prone paddleboard) right now and recorded this video just after Toronto had its big snowstorm this Christmas. It’s quite a beautiful thing to be on the Lake O at this time of year. Dark and moody but beautiful. I hope the video gives you an appreciation of the variety of experiences the Lake can offer and maybe an urge to get wet.

BC commissioner uses fleet management complaint to answer BIG questions about PIPA

On December 19th, the British Columbia Office of the Information and Privacy Commissioner dismissed a complaint about the collection and use of vehicle location and operation data for the purpose of managing employee performance. In doing so, the OIPC opined broadly on the meaning of “personal information” and “work product information” and on the standard of reasonableness for collecting and using employee personal information under BC PIPA.

The case deals with an elevator company and its field mechanics. The mechanics objected to the company’s collection of data about service vehicle location and data about service vehicle operation – e.g., distance travelled, speed and incidents of harsh braking. The company argued this information is not regulated by BC PIPA at all because it is not “personal information” or, alternatively, is “work product information.”

The OIPC rejected the company’s primary argument and held that vehicle location and operation data is personal information. In doing so it rejected a narrow definition of personal information that requires personal information to be “about an identifiable individual” in that it reveals something private or intimate about the individual – a concept accepted in some case law and loosely related to the “biographical core” concept featured in Charter search and seizure jurisprudence. Instead, the OIPC said that information about an identifiable individual is personal information if it “is collected, used or disclosed for a purpose related to the individual.”

The OIPC also rejected the company’s alternative argument and held that vehicle location and operation data is not work product information. It reasoned that vehicle location and operation data is not “prepared or collected” by an individual in the course of work and that, generally, data that is automatically recorded “without directed conscious input by an individual” is not work product information.

While these principles favour privacy protection, the OIPC also demonstrated respect for employer interests in finding the company’s collection and use of employee personal information was reasonable for its purposes. The OIPC expressly rejected a four part reasonableness test (generally disliked by employers) in favour of a more flexible “reasonableness in all the circumstances” test:

The assessment of reasonableness will occur in the context of the established purposes for the employer’s collection, use or disclosure and thus should have some regard to that context. But the assessment may also address a number of other possible considerations.

As part of its reasonableness discussion, the OIPC also noted that an organization need not adopt the least privacy-intrusive alternative regardless of cost or consequences (though should be able to demonstrate that it has given “reasonable consideration” to less intrusive alternatives).

Schindler Elevator Corporation (Re), 2012 BCIPC 25 (CanLII).

Ontario court stresses that law tolerates rough political debate

On December 21st, the Ontario Superior Court of Justice ordered a retrial of a successful defamation action in a case that nicely illustrates the heavy burden on a party seeking to sue another for a defamatory publication that is made on an occasion of qualified privilege.

The defendant was a municipal councillor who responded to an e-mail sent by a community activist to council members about a matter of public interest. The defendant’s response stated that the plaintiff was “a destructive mean spirited liar that does not deserve the time of day.”

The appeal court held that the trial judge erred by applying the wrong legal test for qualified privilege. In essence, it explained, the trial judge relied upon the malice inherent in uttering defamatory words to conclude that qualified privilege did not arise instead of recognizing the occasion of privilege and properly assessing whether the plaintiff had proven “express malice.” To illustrate, the appeal court noted that:

  • the trial judge held that the defendant made his publication negligently, but did not find that he spoke “dishonestly” or “with knowing disregard for the truth” as required by to rebut the presumption of honest belief; and
  • the trial judge held that the defendant made his publication “to re-enforce his own political goals and to discredit his opponents, and in particular, their spokesman [the plaintiff],” which signalled an intent too valid to warrant a finding of malice.

Although the appeal court acknowledged these findings, it held that it could not render a final judgment because the factual findings at trial did not address the proper tests. It ordered a new trial on the question of malice alone.

Whitehead v Sarachman, 2012 ONSC 6641 (CanLII).

IPC issues strong order limiting access to “constitutency records”

On December 21st the IPC/Ontario issued an order that held that communications about “cycling issues” between two councillors were not under a municipality’s custody or control.

The IPC reached its finding even though the requested records (assuming their existence) would relate to municipal business and be found (at least in part) on the municipality’s information technology system. It explained, in general terms, that records arising exclusively out of a councillor’s political activity – commonly called “constituency records” – are not subject to the right of public access:

Although the distinction between “constituency records” and “city records” is one framework for determining custody or control issues, it does not fully address the activities of municipal councillors as elected representatives or, as described in St. Elizabeth Home Society, above, “legislative officers.” Records held by councillors may well include “constituency records” in the sense of having to do with an issue relating to a constituent. But they may also include communications with persons or organizations, including other councillors, about matters that do not relate specifically to issues in a councillor’s ward and that arise more generally out of a councillor’s activities as an elected representative.

The councillors have described such records as “personal” records but it may also be appropriate to call them “political” records. In any event, it is consistent with the scheme and purposes of the Act, and its provincial equivalent, that such records are not generally subject to access requests. In National Defence, the Court stated that the “policy rationale for excluding the Minister’s office altogether from the definition of “government institution” can be found in the need for a private space to allow for the full and frank discussion of issues” and agreed with the submission that “[i]t is the process of being able to deal with the distinct types of information, including information that involves political considerations, rather than the specific contents of the records” that Parliament sought to protect by not extending the right of access to the Minister’s office.

The policy rationale applies with arguably greater force in the case of councillors who, unlike Ministers, do not have responsibility for a government department and are more like MPP’s or MP’s without a portfolio. A conclusion that political records of councillors (subject to a finding of custody or control on the basis of specific facts) are not covered by the Act does not detract from the goals of the Act. A finding that the city, as an institution covered by the Act, is not synonymous with its elected representatives, is consistent with the nature and structure of the political process. In arriving at this result, I acknowledge that there is also a public interest in the activities of elected representatives, and my determinations do not affect other transparency or accountability mechanisms available with respect to those activities.

Toronto (City) (Re), 2012 CanLII 81955 (ON IPC).

Ontario claim attacking a report of concerning behavior and university response may proceed

On December 20th, the Ontario Superior Court of Justice dismissed a motion to strike a defamation and negligence claim that arose out of a student’s report of concerning behavior to her university.

The plaintiff alleges he was wronged by the student’s report of the following facts and the university’s further (and allegedly negligent) “reporting” and “publication” of the following facts (as summarized by the Court):

  • Two weeks earlier the plaintiff had approached the individual defendant after class and advised her he really liked her, had strong feelings for her, and wanted to pursue his feelings in a relationship knowing she had a boyfriend.
  • That the plaintiff told the individual defendant he was not able to sleep, paced in his bedroom all night to fall asleep, and also advised her he could not live without her.
  • That the individual defendant was concerned for the plaintiff’s health as he might hurt himself and did not seem to have any friends or family in the area.
  • That the individual defendant had reported that the plaintiff had asked her out four times and had said things that made her feel uncomfortable.

The Court held that there was no basis for concluding the claim was about an academic matter within the university’s exclusive jurisdiction. It also held that the claim, as pleaded, appeared to disclose a reasonable cause of action.

This preliminary decision is of no great significance, though the issue raised by the claim itself is important to post secondary educational institutions. Colleges and universities in Ontario and elsewhere have worked hard to encourage community members to report concerning behavior so it can be properly assessed and managed. Notably, in this case the university and the student defendant are jointly represented.

Thode v University of Ottawa, 2012 ONSC 7284 (CanLII).

Alberta arbitrator says employer’s broad direction to report personal legal troubles reasonable

On July 13th of last year, Arbitrator Sims held that an employer could promulgate and rely upon a policy that requires employees to report legal troubles with the potential to affect the their ability to work or, more generally, the company’s interests.

The policy language at issue read as follows:

Involvement in a legal matter

If you are involved in a legal matter or a police case which has the potential to affect your ability to perform your job or harm the interests of TELUS, you must immediately inform your manager.

Arbitrator Sims held that this language, read in the context of the employer’s entire ethics policy, was a reasonable means of enabling the employer to assess whether potential risks to its interests needed to be addressed. He was impressed that the employer offered employees a confidential ethics line to seek guidance on their reporting duty, but the decision does not appear to rest on this fact.

Telus Communications Inc v Telecommunication Workers Union, 2012 CanLII 51085 (AB GAA).

Existence of unfound docs no reason to allow a hard drive inspection (Ontario)

On December 19th, Justice Morgan of the Ontario Superior Court of Justice made the following statement of principle in dismissing a request to inspect a party’s hard drive that followed the party’s service of a supplementary affidavit of documents:

Plaintiff’s counsel submits that computers do not err, and the fact that a document was overlooked the first time implies that the search was unredeemably deficient. However, computer storage and search systems, like traditional filing systems, are subject to human error. The Defendant’s obligation is to make every effort to produce what the Rules require it to produce, but there must be evidence stronger than a corrected error for a court to order that the Plaintiff actually take control of the search through the Defendant’s computer hard drive.

Justice Morgan also dismissed a request for an order requiring the provision of information about how the party’s electronic search was conducted. He commented that the Rules “do not require a party to explain how or where the relevant documents were found or the methodology of its search for those documents.”

Zenex Enterprises v Pioneer Balloon, 2012 ONSC 7243 (CanLII).

No disclosure of information from Facebook in Ontario case

On December 21, the Ontario Superior Court of Justice dismissed a motion for production of all content on the private portion of a plaintiff’s Facebook account.

The plaintiff alleges she sustained permanent impairment as a result of motor vehicle accident that lessened her ability to participate in recreational, social, household and employment activities and caused a loss of enjoyment of life. The evidence on the defendant’s motion for production indicated the plaintiff had 139 Facebook friends and had made postings on her (publicly-available) timeline stating that she was feeling better and that “Life is good!” Notably, in response to the motion the plaintiff filed evidence that described the content of the private portion of her Facebook account, attached pictures (under seal) and reconciled the images in the pictures (of her standing, sitting and leaning) with her claim.

Regional Senior Justice Heeney held that the photographs he reviewed were not relevant:

I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff water skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations that she has testified she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.

Justice Heeney made clear that he was not endorsing the withholding of any otherwise producible information based on a privacy claim, though it is clear that he had particular concerns about the invasive nature of the defendant’s production request. In particular, Justice Heeney suggested that a production request for an individual’s entire Facebook account is highly problematic:

Before the dawn of the internet age, people often communicated by writing personal letters to each other. It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them. They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past. However, it is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff’s claim for non-pecuniary damages. The shocking intrusiveness of such a request is obvious. The defendants’ demand for disclosure of the entire contents of the plaintiff’s Facebook account is the digital equivalent of doing so.

Stewart v Kempster, 2012 ONSC 7236 (CanLII).

Lawyer’s notes of opposing party’s statements to be produced

On October 30th the Ontario Superior Court of Justice issued a decision that illustrates the burden on a party who claims that notes taken of an opposing party’s statements are subject to litigation privilege.

The Court rejected a litigation privilege claim because it was impossible to discern from a review of the notes alone that they contained solicitor’s work product – i.e., confidential comments, remarks and notes personal to the transcriber and made for the dominant purpose of preparing for litigation. Although the notes contained some annotations and underlining, the Court held that it was not self evident these markings were work product. It also held that counsel’s submission that certain text in the notes represented an evaluation of the opposing party’s value as a witness was not sufficiently persuasive to justify a withholding of otherwise producible information.

Hart v (Canada) Attorney General, 2012 ONSC 6067 (CanLII).

Plaintiff left to lie in its e-mail mess

On November 15th, the Supreme Court of Nova Scotia dismissed a motion to amend a production order that caused a pension plan great difficulty given its committee members had used their work e-mail accounts to send and receive relevant communications.

The pension plan sued its investment advisors to recover investment losses. About a year ago the Court ordered it to conduct keyword searches involving 51 terms. This required the pension plan to search for e-mails sent and received by its committee members who held day jobs for the plan sponsor (a separate legal entity) and used their work e-mail accounts to send and receive relevant communications. Matters were made worse because the pension plan’s litigation counsel was actively engaged in matters adverse to the sponsor, which meant the sponsor was unwilling to let the pension plan review e-mails without first vetting them itself. The 51 terms produced too many responsive records for the sponsor, who objected to the pension plan. In response, the pension plan moved for relief. It argued that the 51 terms produced too many “false positives” and asked for an amendment.

The Court dismissed the motion. It held that an amendment to the order could only be justified based on “compelling reasons” given that the order was the product of argument, reasoning and a lengthy decision and because it would invite selective application of a narrower search (to the benefit of one party) than applied to all other data sources under the parties’ control. The Court held that the pension plan failed to meet this burden. It was unimpressed with the evidence adduced through counsel’s paralegal, who gave hearsay evidence about search quality analysis conducted by the pension plan’s litigation support company. The Court explained:

I have no direct evidence from CWL and am not satisfied that the evidence shows CWL to have the capability to reliably identify relevant documents subject to disclosure. I have little evidence upon which to assess the correctness of CWL’s assessment of what constituted a “false positive”. I am particularly concerned because the context in which the revised search was conducted intended to minimize the number of documents to be reviewed. I cannot say whether CWL sacrificed the quality of the search to meet the goal of reducing the quantity of captured documents.

The Court did not clearly rely on the committee members’ use of the sponsor’s e-mail system in dismissing the motion, but did comment that the pension plan’s situation was “of its own making.”

Halifax (Regional Municipality Pension Committee) v State Street Global Advisors Ltd., 2012 NSSC 399 (CanLII).