All About Information’s #Clawbies2012 Nominations

This year I nominate The Trial Warrior Blog by Antonin Pribetic and Morton’s Musings by James Morton. Blogs driven by genuine interest in the law are becoming more and more distinct as those with a more promotional bent are pouring in. I like both these blogs because they are pure in spirit. Bonus points to Pribetic for his honesty and feisty spirit and bonus points to Morton for contributing good, concise educational content.

I also nominate FMC’s Data Governance Blog, driven mostly by the efforts of Tim Banks. It competes most closely with the content from this blog, but is good.

The other side of the balance: employer interests, work systems and R v Cole

Here’s a link to a essay that describes the impact of the Supreme Court of Canada’s in R v Cole – the work system privacy case. I appeared with my colleague Joseph Cohen-Lyons on behalf of the Canadian Association of Counsel to Employers, and the paper represents the intellectual end point of a great experience. Whether you agree with the position or not, I hope it sparks some ideas!

OCA denies access to identity of person paying bankrupt’s legal fees

On November 29th, the Court of Appeal for Ontario held that the identity of a person paying the legal fees of a bankrupt person was protected by solicitor-client privilege.

The Court stated the applicable law as follows:

From these developments in the jurisprudence I take the law to be that administrative information relating to the solicitor-client relationship – including the identity of the person paying the lawyer’s bills – is presumptively privileged. The presumption may be rebutted by evidence showing: (a) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications (Maranda, at para. 34 and Ontario (Assistant Information and Privacy Commissioner), at para. 9); or (b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client (Cunningham, at paras. 30-31).

The Court applied this in dealing with a trustees’s pursuit of assets from a person it alleged to be holding assets for the bankrupt. The bankrupt had lost a motion in the matter and was ordered to pay a large costs award which, unpaid, led the trustee to move to discover the identity of the person paying the bankrupt’s fees.

The Court held that the trustee could not rebut solicitor-client privilege because the identity of the payor was relevant to the trustees’s broader allegation if not the motion that had led to the costs order. Much more broadly, it also held that disclosing the identity of the payor would reveal a confidential communication between the bankrupt and his counsel about how the bankrupt would pay his fees – a communication necessary to the bankrupt’s process of obtaining legal advice.

Kaiser (Re), 2012 ONCA 838 (CanLII).

Court understands that PIPEDA does not limit its power to assist execution creditors

The Ontario Superior Court of Ontario issued an endorsement on November 19th that demonstrates a proper understanding of the Court of Appeal for Ontario’s judgement in Citi Cards v Pleasance. Justice Morgan said (with emphasis added):

Both parties’ counsel concede that the mortgage companies are wary about disclosing information about a mortgage debt to anyone other than the debtor himself due to the operation of Ontario’s [sic] privacy legislation . The Personal Information Protection and Electronic Documents Act (“PIPEDA”) would seem to prohibit banks and other organizations from making precisely the type of voluntary disclosure that the Plaintiff seeks. It is little wonder, therefore, that the Plaintiff cannot obtain the up to date mortgage statements by simply asking the mortgagees for them.

The Court of Appeal has pointed out in Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3 (CanLII), 2011 ONCA 3, at para. 29, that under PIPEDA “[a]n organization may disclose personal information…only if the disclosure is [authorized by one of the exemptions]”. Those exemptions are contained in section 7.3 of PIPEDA. That section provides, inter alia, that disclosure of information is permitted by an organization such as Griffin’s mortgagees where that disclosure is “required to comply with a subpoena or warrant issued or an order made by a court…” The Plaintiff did not join the mortgagees as respondents to the motion before me, but he is of course free to do so at a future date.

The last statement suggests that a Court will entertain a motion for production of a mortgage statement from a mortgagee notwithstanding PIPEDA. Citi Cards says that courts should grant such orders sparingly given PIPEDA protects the privacy of mortgagors but does not mean that a court is prohibited from making such an order. There has been some confusion about this point.

McBean v Griffin, 2012 ONSC 6555 (CanLII).

BCSC says PIPA does not have quasi-constitutional status

The British Columbia Supreme Court issued an oral judgment last January that appears to just recently have been published. The Court found that the clear right to membership information given to members of a co-op under the British Columbia Cooperative Association Act does not conflict with  prohibitions in the British Columbia PIPA and is not superseded by  prohibitions in British Columbia PIPA. Justice Gaul commented:

While the respondent is correct in noting that the Supreme Court of Canada in Lavigne considered the “quasi‑constitutional” nature of privacy legislation, the court did so with specific reference to the Privacy Act RSC, 1985, c. P-21. This federal legislation focuses on the privacy obligations of governmental organizations as opposed to private organizations. That is an important distinction when it comes to the case before me because the PIPA is a legislative enactment designed to govern the privacy obligations of private organizations. I am unpersuaded that the PIPA has any “quasi-constitutional” roots or purpose that would give it the special status the respondent argues it has.

The Court issued a declaration that any member of the respondent co-op in good standing may obtain a copy of its membership list.

Pearson v Peninsula Consumer Services Cooperative, 2012 BCSC 1725 (CanLII).

Ministry of Labour breaches FIPPA in administering an OLRB production order

On November 9th the Information and Privacy Commissioner/Ontario held that the Ministry of Labour breached FIPPA’s safeguarding duty after it investigated the administration of a production order made by the Ontario Labour Relations Board.

The directors of a bankrupt employer appealed an order to pay wages and vacation pay to 309 former employees to the OLRB. The directors and the prosecutor agreed to a consent order that required production of relevant financial information about the 309 employees, and the prosecutor agreed to one or more participating employees that all 309 employees (as parties to the proceeding) would receive the production. The OLRB mailed an unencrypted CD-ROM containing the 309 employees’ names, social insurance numbers, total annual remuneration, period of earnings and address information. After complaints were lodged by some recipients the OLRB attempted to recall the mailing, but in the end did not recover 137 of the CD-ROMs.

The production order itself was the real source of difficulty here, but the IPC rightly acknowledged it had no jurisdiction to scrutinize the OLRB’s exercise of procedural powers. Instead, the IPC looked at the adequacy of the OLRB’s and Ministry’s security practices, recommending first that the OLRB take the added precaution of making clear to parties that they can request orders to restrict the manner and scope of disclosure. The IPC also held that the Ministry ought to have used a bonded courier service, ought to have considered encryption and ought to have attempted to confirm addresses.

Is this an adequate resolution? What can be done that respects tribunals’ independence but promotes better protection of privacy?

Ontario (Labour) (Re), 2012 CanLII 71576 (ON IPC).

Errant e-mail communication to plaintiff results in waiver of privilege

On November 13th, the Ontario Superior Court of Justice dismissed an application for leave to appeal a privilege waiver finding that was based on the unfairness that sustaining the privilege would work on the plaintiff.

The plaintiff sued for constructive dismissal after being inadvertently copied on an e-mail from her employer to its legal counsel. The e-mail was sent for the purpose of seeking legal advice on the plaintiff’s termination. The employer was unsuccessful in recovering the e-mail despite its attempts.

Waiver ordinarily requires proof of intent to waive. However, Justice Bielby held that sustaining the employer’s privilege in the unique circumstances would be unfair to the plaintiff because its inadvertent communication was the foundation of her claim:

There is no doubt that the email affected the plaintiff’s state of mind. It was the catalyst for the subsequent steps taken by the plaintiff and the position underlying her claim of wrongful dismissal. She copied the email and contacted counsel to whom she disclosed the email. She presumably and with legal advice, considered her continued employment and took the position, rightly or wrongly, that the email effectively terminated her employment.

Of course, this is no endorsement of the plaintiff’s seemingly questionable theory.

Fernandes v Marketforce Communications, 2012 ONSC 6392 (CanLII).

Councillor records not subject to MFIPPA

The exclusion of “constituency records” from the right of public access in Ontario is not new but has garnered recent attention. On October 30th, the IPC held that a request for councillor records “discussing or tracking public opinion on specified issues” was not a request for records under the custody or control of a municipality. Adjudicator Liang held that, although the request was for records relating to matters within the municipality’s mandate, given the municipality had not authorized the named councillors to consider or track public opinion, the request targeted constituency records – records made by the elected officials exclusively in their political capacity.

Toronto (City) (Re), 2012 CanLII 69026 (ON IPC).

Case nicely illustrates how duty of fidelity constrains negative expression in the workplace

On June 13th, Arbitrator Herlich issued an award in which he affirmed discipline meted to an employee who made various negative comments in the workplace but reduced the penalty because the discipline rested in part on an internal e-mail communication that was not culpable.

The employee worked at a convention centre. He was disciplined for expressing negative views on three occasions. Two occasions led to customer complaints. The third was in the workplace where clients were in attendance. The discipline also rested on an e-mail the employee sent to a senior executive that was critical of the employer (though not of any specific individuals). The employer felt the employee did not follow the proper procedure for raising a complaint.

Arbitrator Herlich said the following about the three occasions of negative expression in the workplace:

The grievor obviously has an extensive workplace and labour relations agenda. He is entitled to his views and he is entitled to engage in legitimate trade union activities, including, should he so choose, seeking trade union office and engaging in the politicking that may attend those efforts. That freedom, however, is not absolute and does not provide him with a license to freely express his views at work to, or within the earshot of, the employer’s customers or guests. The grievor clearly did not and, I fear, still does not understand this.

He felt that sending e-mail was different and, in the circumstances, not culpable. Based on this and a consideration of other factors, Arbitrator Herlich reduced the employer’s five day suspension to a three day suspension.

United Steelworkers and The Crown in Right of Ontario (Ottawa Convention Centre) (13 June 2012, Herlich).

Court affirms order to disclose salaries based on public interest override

On October 30th, the Divisional Court affirmed a 2010 order by the IPC/Ontario that required a police board to publicly disclose the specific salary entitlements of a police chief and two deputy chiefs.

The request dealt with base salary entitlements for various years (as granted and recorded in employment contracts). Total salary to be paid to the affected employees exceeded the $100,000 threshold for annual publication under the Public Sector Salary Disclosure Act. The requested disclosure, therefore, would reveal the amount of performance pay received by the affected employees.

The IPC held that disclosure of the affected employees’ salary entitlements would constitute an unjustified invasion of personal privacy based on a provision that shields an employee’s “income” from public disclosure. However, it also issued a broadly-framed finding that disclosure of the “senior level” employees’ personal information was nonetheless warranted based on the “public interest override.” The Divisional Court affirmed the latter finding as reasonable.

York (Police Services Board) v (Ontario) Information and Privacy Commissioner, 2012 ONSC 6175 (CanLII).