Ontario Biometric Timekeeping System Jurisprudence now Strongly Favours Employers

On August 29th, another Ontario labour arbitrator dismissed a biometric timekeeping system grievance. Arbitrator Susan Tacon dismissed the grievance on some rather strong evidence adduced by the employer, but did make the following general comment about the very conservative IKO Industries case (which the Ontario Superior Court of Justice – Divisional Court upheld as reasonable):

With respect, I also do not find the reasoning in IKO Industries, supra, compelling. The standard for establishing an “invasion” of privacy is set so low and the business rationale must be so critical to the company that no other system is possible. The test really espoused in IKO Industries, supra, is that any infringement of privacy, however minor, will outweigh a legitimate business rationale which is not essential to the continued operation of the company. In my view, that approach undermines the concept of proportionality, unduly weakens the management rights clause in practical terms and is not consistent with the weight of the arbitral jurisprudence. In any event, for reasons which will be given infra, the decision is distinguishable on the facts.

The weight of arbitral authority in Ontario now strongly favours the adoption of biometric timekeeping systems provided the chosen system has a number relatively common security features to protect against misuse and secondary use of biometric data and provided the chosen system does not invite a violation of any uniquely restrictive collective agreement terms. Employers who run through the security-related considerations with a checklist-like tool and seek input from counsel on the effect of their collective agreements will gain a very strong appreciation of the risks associated with adoption. In many cases, employers will be safe to proceed.

Gerdau Ameristeel v. United Steelworkers, Local 8918 (Biometric Scan Grievance), [2011] O.L.A.A. No. 405 (Tacon) (QL).

Well-Litigated Background Check Dispute Sent Back to the B.C. OIPC

On September 6th, the British Columbia Supreme Court allowed a judicial review application of a finding that the British Columbia Ministry of Children and Family Development breached British Columbia FIPPA by failing to make every reasonable effort to ensure the accuracy of personal information before using it to answer an background check inquiry.

This is a very well-litigated dispute about a communication made by the Ministry to a social services employer who contacted the Ministry, with consent, to check into the background of a new employee. The Ministry disclosed the existence of a complaint made against the employee. It also noticed some irregularities in its file, did a full review of the file (without going behind the file to make inquires) and rendered an opinion to the employer that the employee needed to be supervised when in contact with children.

The employee was terminated and has since been on a long campaign to seek redress. In May 2010, the British Columbia Court of Appeal dismissed the employee’s $520 million action against the Ministry and others as disclosing no reasonable cause of action. About a year earlier, the Court of Appeal heard an appeal of the employee’s privacy complaint and sent it back to the B.C. OIPC so the OIPC could consider whether the Ministry breached section 28 of B.C. FIPPA. Section 28 imposes a duty to make every reasonable effort to ensure the accuracy of personal information that is used to make a decision that directly affects an individual.

In reconsideration, the OPIC affirmed the employee’s complaint. It held that the Ministry had made a “decision” that engaged the section 28 duty and held that the Ministry had failed to make every reasonable effort to ensure the accuracy of the employee’s personal information. The OIPC explained:

In this matter, the evidence is clear that the social worker made no effort, let alone every reasonable effort, to ensure the accuracy and completeness of the information she relied upon to come to her interim decision recommending Mr. Harrison not be left alone with youth in his workplace. Her opinion was based in part on her belief that the matter had not been “properly” investigated. Yet she did not make a single inquiry of any one of the several Ministry employees who had had dealings with Mr. Harrison over the previous decade. To compound matters, she admitted that, when she made her recommendation concerning Mr. Harrison, it had been more than twenty-four years since she had worked in the field of child protection. This decision, based on allegations determined at the time to be without substance and warranting no further investigation, has led to consequences that cannot be remedied. …

In addition, it is not clear to me whether the Ministry has a strategy, policy or process dealing with the management of files concerning unsubstantiated or worse, uninvestigated, allegations of sexual (or other) abuse. It is however clear that those who have been subjected to the latter are in an unenviable situation in which there can be no successful outcome. Since no investigation ever takes place, the veracity of the allegation is not conclusively resolved. Yet no further investigation will ever take place, frustrating closure to the matter and leading to the possible loss of reputation or other harm.

The Court held that the OIPC erred by rendering its decision without considering the public interest in disclosure about potential threats to children and the Ministry’s duty to protect children under the CFSCA. It referred the matter back to the OPIC for resolution.

Harrison v. British Columbia (Information and Privacy Commissioner), 2011 BCSC 1204 (CanLII).

Alberta Court Lends Constitutional Protection to the “Cyber-Picket Line”

The Alberta Court of Queen’s Bench issued a remarkable privacy decision on June 30th that didn’t get much attention until David Fraser posted about it last week. (Thank you David.) Madam Justice Goss of the Court held that Alberta PIPA violates section 2(b) of the Charter because it doesn’t give organizations wide enough latitude to record and disseminate images of people at public social or political events.

Picketers often employ video cameras and still cameras, a practice thought by some to be a form of intimidation. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and evidence that the union had used images to attack individuals in a manner described in the Alberta OPIC order under review as follows:

As well, exhibits were entered showing that images of this Complainant’s face were included (which he stated was without his consent) in issues of the Union’s newsletter or strike leaflets, in one case superimposed over the head of a person driving a miniature train, associated with text which began “There goes [the Complainant] with his train full of scabs”, and in another case, superimposed onto a turkey. In a third image, in which Complainant C is seen leaning over a railing gazing down at the floor below, the associated text begins: “What is [the Complainant] thinking? Is it jumping? …” and continues with other comments related to the strike and the Complainant’s possible thoughts.

Madam Justice Goss suggests that this activity – and “ridicule” and “mockery” in general – does not warrant constitutional protection. She nonetheless holds that PIPA is too restrictive of expression in a free and democratic society because it restricts unions from engaging in “union journalism” relating to labour disputes and picket lines. While significant, Madam Justice Goss’s finding does preserve a rather fundamental limit on the “cyber picket line” (a term used by the union’s expert): the dissemination of images to ridicule, mock and intimidate can and should be restrained by applicable privacy legislation.

Of course, the decision has implications that go beyond the picket line. At its broadest, the matter raises a rather gargantuan issue about how much government can restrict the expression of information about things people do in public as a means of promoting and protecting personal privacy.

United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415 (CanLII).

Ont. C.A. Affirms Sealing Order to Protect Settlement Privilege Pending Agreement’s Approval

Today the Ontario Court of Appeal affirmed an order that sealed information about the amount of monies to be paid under a settlement agreement that was subject to court approval.

The order applied only to information about monies to be paid and not to the entire agreement. It also had a provision that allowed non-settling parties to obtain access to sealed information upon signing a confidentiality agreement to allow them to participate in the approval proceeding without encumbrance.

The Court held that the the order was based on the important interest in promoting settlement that is recognized by litigation privilege doctrine and that this interest was not outweighed by the interest in holding an open approval proceeding. It also held that the order was not over-broad.

Court approval of the proposed agreement was required under the Companies’ Creditors Arrangement Act. In making its finding, the Court said, “we leave to another day the issue of whether the privilege always attaches to other settlements requiring court approval, for example, class action settlements or infant settlements, where different values and considerations may apply.”

Hollinger Inc. (Re), 2011 ONCA 579.

HRTO Orders Applicant to Consent to Use and Disclosure of Student Record for Proceeding

On August 5th, the Human Rights Tribunal of Ontario held than an applicant implicitly consented to the use and disclosure of information in his Ontario Student Record by putting the information into issue in his application.

Section 266 of the Ontario Education Act deems the OSR to be privileged subject to student or guardian consent. The applicant (through his next friend) referred to information in his OSR in his application and expressed an intention to use information in his OSR in pursuing his application. The applicant was not, however, forthcoming with consent to allow the responding school board to use the OSR in it’s defence.

The Tribunal did not entertain the board’s argument for a finding that the section 266 privilege is waived in whole upon the filing of an application by a student in respect of educational services. It did articulate a principle that supports implicit consent to use and disclose relevant information in an OSR in support of a defence:

Based on the particulars in the Application, as well as the applicant’s own expressed intention to rely on parts of the OSR, the applicant has implicitly consented to at least some use and disclosure of the OSR by the respondent in order to defend itself. However, in subsequent correspondence and submissions the applicant’s next friend explicitly seeks to place a number of conditions on her consent. I am not satisfied that the restrictions she seeks to place are necessary to protect the privacy of the OSR documents and information. The respondent is not receiving documents, through a disclosure process, in which it otherwise has no interest or responsibilities. It is still subject to its obligations under the Education Act. To the extent that it may use or disclose documents or information from the OSR for the purposes of the proceeding before the Tribunal, it is also subject to the Tribunal’s Rules on the confidentiality of documents. The applicant cannot rely on documents and information from the OSR in the Application, while seeking to prevent the respondent from using the same in order to present its case. I find it necessary, for a fair and just proceeding, for the respondent to be able to use and disclose documents and information from the OSR, subject to the time limitation addressed below.

…

Where an application is filed which claims discrimination in educational services and it is apparent that a respondent school board must use and disclose information from an OSR in order to defend itself, including to file a full response, the Tribunal will consider, on request from such a respondent, whether the application should proceed unless an applicant provides explicit consent to use and disclose information that information.

The Tribunal ordered the applicant to provide explicit consent for the use and disclosure of information falling within a relevant time period, failing which it would consider dismissing the action as an abuse of process.

T.S. v. Toronto District School Board, 2011 HRTO 1471 (CanLII).

Ontario Court Requires Notice to Non-Parties Whose Privacy Interests at Stake in Production Dispute

On August 15th, the Ontario Superior Court of Justice deferred a motion for production of medical records so two non-parties could be given notice of the production motion.

The action was by a patient of a psychiatric facility who was allegedly assaulted by two other patients. The facility resisted production of records in its custody based on a concern for the privacy of the non-parties, but also did not dispute the records’ relevance.

Mr. Justice Ricchetti ordered production of occurrence reports that recorded facts pertaining to the alleged assaults without requiring notice. Ricchetti J. suggested that the records contained information that was as much about the plaintiff as the two non-parties. He also recognized the occurrence reports were not about the provision of care though they were placed in both of the non-parties’ patient records. Though these factors led him to order production without notice to the non-parties, Ricchetti J. did order the non-parties’ attending physicians to be given notice and an opportunity to object based on criteria for doing so set out in the Mental Health Act, ordered redaction of names and identifying information and ordered receiving counsel to safeguard copies of all information received.

Regarding production of other medical records, Ricchetti J. ordered that notice be given to the affected non-parties. He said:

Rule 30.10 of the Rules of Civil Procedure requires that any motion seeking third party disclosure be on notice to the third party. The real third party in this case are the patients. The purpose of this rule is to ensure that the party whose documentation is to be disclosed has an opportunity to object or consent or request some limitation on the disclosure. This purpose, in my view, is defeated if the “real” owner or person with the “real” interest in the disclosure of the documentation or information is not given notice.

I cannot imagine why a request for disclosure of the patient’s medical records containing PHI should not be on notice to the patient. It is the patient’s PHI, protected by the PHIPA, that disclosure is sought.

…

In my view, where an order is sought under s.41(1)(d) of the PHIPA or s.35(5) of the MHA, such an order should be obtained, if at all possible, on notice to the patient whose record is sought and not just the custodian of the patient’s medical records containing the PHI.

This is a sensible application of the power over procedure. Note, however, that health information custodians are authorized under PHIPA to disclose personal health information for the purpose of providing production without any notification requirement. Is notification “if at all possible” in the event of dispute too conservative and too costly? Should courts require health information custodians (who are accountable to privacy regulators under statute) to attempt to negotiate a reasonable scope of production and reasonable protective terms before stepping in? These are important questions that are yet to be answered.

M.L. v. Homewood Health Centre Inc. et al, 2011 ONSC 4790 (CanLII).

Social Media Risks and Rewards at AMO 2011

I presented yesterday at the Association of Municipalities of Ontario conference with Brian Lambie of Redbrick Communications. Brian gave great practical insight on the messaging municipalities should strive for in their social media initiatives and I discussed the kind of control structures that are necessary for reaping the benefits of social media without excessive risk.

This wasn’t new content for me, but the audience – about 70% elected officials – was. This led to a rewarding Q&A.

A Kingston councilor noted that Kingston has adopted a “no handhelds in council rule,” a concept that received endorsement from another councilor in the audience despite his acknowledgement that the pressure to deal with handheld communications in long meetings can be significant. I tied the rule back to a council’s interest in decorum, transparent dealing and perceived transparent dealing.

A mayor of a different Ontario municipality raised a good question on creating separate social media profiles for use in support of election campaigns. Although an incumbent councilor’s legal status does not formally change into and out of campaign periods, strict campaign finance requirements may justify completely separating communications made in the capacity of office holder from communications made in support of a campaign. This is a good issue that I was not aware of prior to His Worship’s input.

Thank you to AMO and to Brian and his staff, who created the slides below. I’ve also linked to the State of Victoria’s wonderful social media awareness video, an example I used to make the point that municipalities might want to lead with an internal communication campaign rather than a “policy heavy” approach.

Ontario Court of Appeal Relieves Media of Elevated Costs Order in Privacy Dispute

The Ontario Court of Appeal reduced a full indemnity costs award made against the Toronto Star on Tuesday. The motion judge made the extraordinary costs award against the Star because it was a “media giant” that had unsuccessfully taken on an individual who was trying to protect his personal privacy. The Court of Appeal held that the Star’s action in seeking to publish potentially embarrassing personal information about the individual was not conduct worthy of sanction even though it affirmed a finding that the the Star was motivated, in part, by its private interests. Though notable to readers of this blog, given how it was handled this case is arguably more about the exceptional character of elevated costs orders than about media rights and privacy.

Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555 (CanLII).

E-Discovery, Production and Non-Party Privacy

I presented at the Canadian Bar Association Legal Conference and Expo on Tuesday on “e-discovery, production and non-party privacy.”

I started by stating that:

  • the litigator’s role is to help the trier of fact uncover the truth;
  • the litigator takes information and uses it as evidence to do so; and
  • it is essential to the administration of justice that this use of information be unfettered.

That stated, I asked the audience to not to lambaste me for preaching that litigators ought to take steps to protect privacy in going about their work. From presenting and from listening to co-panelist Patricia Kosseim launch the OPC’s new “PIPEDA and Your Practice” handbook for lawyers it is clear to me that many of the privacy issues facing litigators have little to do with litigation and civil procedure itself.

My slides are below.