IPC/Ontario says personal information received on an unsolicited basis is not “collected”

The Information and Privacy Commissioner/Ontario issued a notable privacy investigation report on July 8th. It held that a municipality did not “collect” personal information under MFIPPA by receiving unsolicited correspondence. Investigator Ratner said:

I have considered the City’s position. Sections 31 and 32 of the Act both make reference to personal information having been “obtained or compiled” by an institution. In my view, in drafting the Act, the legislature intended the meaning of the term “obtained or compiled” to be different from the term “collect,” which is employed in section 28. Had the legislature intended sections 31 and 32 to only apply to personal information that is collected, it would have used that terminology in those sections.

I note that personal information may come into the custody or control of an institution in a variety of circumstances: it may be actively solicited, it may be passively received, or it may be created by the institution. In my view, the term “obtained or compiled” is intentionally broad, and is intended to accommodate the various ways in which an institution may acquire personal information. This analysis supports the notion that the term “collect” is intended to be interpreted narrowly so as not to apply to situations such as this where correspondence is sent to institutions voluntarily and without solicitation.

Vaughan (City) (Re), 2011 CanLII 47522 (ON IPC).

Court Directs Employer to Give Former Employee Access to E-Mails for Privilege Review

On June 29th, Justice Moir of the Supreme Court of Nova Scotia directed a means by which parties to a wrongful dismissal action could deal with privileged communications sent and received by the plaintiff on his former employers’ work system. He directed a review by the plaintiff and his counsel, either at the defendant counsel’s office or elsewhere with an undertaking by plaintiff’s counsel not to make copies.

Justice Moir’s order also includes a thorough discussion about the discovery of facts obtained by a witness in a communication that is subject to litigation privilege.

Hat tip to Peg Duncan!

Saturley v. CIBC World Markets Inc., 2011 NSSC 310.

Federal Court Upholds Pension Regulator’s Refusal to Order Disclosure of Member Information

On July 21, 2011, the Federal Court released a decision in a long running pension fight. The applicants in Buschau v. Rogers Communications Inc., 2011 FC 911 have been pursuing access to the surplus in their pension plan since 1995. This decision has been to every level of Court, and sometimes twice. Most recently, the applicants requested that the Federal Superintendent of Financial Institutions (the “Superintendent”) order that Rogers be required to disclose the following information:

the employment and pension data of any new members it proposes to add to the Pension Plan…
the information Rogers has, or should have, as to which members of the Pension Plan it has offered a “buy-out”, the value of such “buy-out” and the members’ acceptance or rejection of such offers…

The applicants purported to require this information to be able to identify potential new members of the Pension Plan to inform them of Rogers’ past actions allegedly taken in bad faith (notwithstanding existing decisions indicating that Rogers has been acting in compliance with legislative requirements) and to determine what happened to any applicable surplus relating to members who accepted a buy-out.

The Superintendent refused to order the disclosure. The Superintendent determined that the Pension Benefits Standards Act, 1985 (“PBSA”) (the legislation governing the Pension Plan), specifically section 28 and the associated Regulations, set out Rogers’ disclosure requirements and the requested information did not fall within the legislative requirement. The Superintendent also indicated that Rogers’ was obliged to comply with the provisions of the Personal Information Protection and Electronic Documents Act. The applicants sought judicial review of the Superintendent’s decision.

The Federal Court agreed with the Superintendent’s determination and found that she decision was reasonable. Of particular note for plan administrators facing disclosure requests from members, the Federal Court stated the following:

[100] I find that the Superintendent’s decision in this regard was reasonable. Section 28 of the PBSA sets out the members’ “Rights to Information”. It also indicates that the plan members are entitled to certain information as set out in the Pension Benefits Standards Regulations, 1985, SOR/87-19 [Regulations]. Neither section 28 of the PBSA nor the associated Regulations mandate that the respondent, in the current circumstances, is obligated to disclose the type of information that the applicants are seeking.

This decision is one of the first examining the scope of a plan administrator’s disclosure obligations under the Federal pension legislation. Plan administrators will likely take comfort in the finding that their disclosure obligations are limited to the specified documents (such as plan texts, amendments, trust agreements, valuation reports, financial statements) and there is no obligation to disclose information outside of the scope of the PBSA requirements if requested to do so by other members.

Ontario Arbitrator Okays Collection of Driver’s License Numbers for Driving Safety Program

On May 11th Arbitrator David McKee held that an employer could collect driver’s license numbers to check the driving records of employees who drive personal vehicles in the course of their duties.

Arbitrator McKee had previously allowed the employer to conduct driving record checks on employees who drive company owned vehicles. In this decision, he holds that it is reasonable to conduct the same check on employees who drive personal vehicles in the course of their duties (and who are reimbursed by the employer for doing so) regardless of the extent to which they actually drive. Arbitrator McKee bases his conclusion on a contextual balancing of interests that stresses the following factors:

the information at issue (the DL number and information in the driving record) is “not extraordinarily sensitive”
the employer had taken steps to protect employee privacy in administering the program (i.e., by using an external service provider to conduct the check and only receiving driving record information for a class of “high risk” drivers)
the employer established a legitimate, albeit general, interest in promoting safe driving and a safety-conscious public image
the employer did not discipline employees with bad driving records but, rather, used the information to mitigate risk through training and management

Arbitrator McKee’s approach is pragmatic. Citing Justice Whitaker’s recent Jones v. Tsige decision, he says, “There is no legal doctrine that gives a particular weight or priority to everything that can be characterized as a privacy right.”

Union Gas Ltd. v. C.E.P., 2011 CarswellOnt 7295.

Ontario Court Says Open Court Principle Applies to Record Filed Before Charges Withdrawn

On July 18th the Ontario Court of Justice granted several media organizations access to a DVD that a criminal defendant filed before charges against her were withdrawn by the Crown. Justice Wake explained that the open court principle can apply to records that are not considered in a judicial proceeding if public access would support a greater understanding of the administration of justice.

The Crown charged the defendant with assault in relation to her interaction with the police. She received a “cellblock DVD” as part of the Crown disclosure, and filed it in furtherance of a stay application, though apparently it was not properly incorporated by reference into an affidavit. The Crown withdrew all charges after noting in open court that he had reviewed evidence of the defendant’s treatment while in police cells.

Justice Wake’s analysis focused on whether the open court principle applied to the DVD. He first held that the irregularity in the manner of filing the DVD was too technical a basis for denying access. He then held that the open court principle applied to the DVD even though it was not considered in a judicial proceeding. He said:

Clearly Goudge, J.A. [in CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar)] drew a distinction between these two objectives and noted that in cases subsequent to MacIntyre “the court has made equally clear how important public access is to the second objective, the greater public understanding of the administration of justice”.

Relying on this analysis, I have concluded, with respect to the DVD, that public access to the workings of the courts and a greater understanding of the administration of justice does not necessarily require that the DVD have been considered in a judicial proceeding or have been subject to a judicial act. The DVD is directly related to a judicial proceeding. It was clearly the intention of Ms. Carr’s solicitor to have it filed for the use of the court and in support of her application to stay proceedings on the basis of what it disclosed. The fact that the Crown, Mr. Wadden, withdrew the charges after viewing what I can safely presume to have been a copy of the same DVD (otherwise the Ottawa Police Service would have produced one copy for the Crown and a different copy for disclosure purposes for the defence which would have been odd, ultimately discoverable and thus unlikely) makes the DVD a highly relevant item in these protracted proceedings.

Justice Wake stressed that he was not expanding the open court principle but, rather, applying it in novel circumstances. He stressed that the criminal proceeding had concluded, that DVD appeared to be “central” to the Crown’s decision to withdraw and that the proceeding (prior to withdrawal) had involved significant expenditure of court resources.

R. v. Global News, 2011 ONCJ 381.

Administrators Have No Place in the Bedrooms of Plan Members

When a pension plan member divorces his or her spouse, often the accrued pension benefits are the single largest family asset. H0w a pension benefit is divided varies by jurisdiction, with some jurisdictions entitling the former spouse to all of the benefits accrued during the period of marriage. What’s more is that some jurisdictions allow former spouses to “unlock” the divided interest prior to the member’s retirement, rather than requiring the monies to continue to be used only for pension benefits.

But what happens when a couple decides they want to access the accrued pension benefits and are willing to go through with a divorce to get access? What if the couple just happens to reconcile shortly after the benefits have been transferred? Can an administrator investigate and question the validity of the divorce? Apparently not.

In 2009, Continental Airlines filed a lawsuit against nine of its pilots claiming that the pilots filed fake divorces in order to receive early distribution of their pension benefits. Many of the pilots continued to cohabitate with their ex-spouses, and in many instances they did not inform any of their family or friends that they had gotten a divorce. Continental sought restitution to the pension plan of the benefits that were distributed to the spouses on the basis that the divorces were “shams”. The trial court dismissed Continental’s claim, holding that Continental did not have the right to investigate employees’ divorces in order to decide whether those divorces were authentic.

The 5th U.S. Circuit Court of Appeals recently dismissed Continental’s appeal of the lower court decision. The Court of Appeal agreed with the lower court that the relevant legislation (ERISA) does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce. On the contrary, the legislation requires benefits be divided in satisfaction of a qualifying marriage breakdown order that has met the necessary prescribed criteria, of which the divorce being done in good faith is not a factor. Therefore, the administrator could not interfere by investigating the bona fides of the divorces. Only where a court finds that a divorce is, in fact, a sham could an administrator refuse to pay out the divided pension.

Counsel for the pilots are championing the decision as a victory for employee privacy rights, given the restrictions on administrator’s abilities to investigate plan members’ family relationships.

Another Ontario Video Surveillance Case. So what!?

On June 21st Ontario arbitrator Randi Abramsky held that an employer must meet a (relatively forgiving) reasonableness standard to adduce surreptitious video surveillance evidence.

I’ve been following this issue (see here and here, most recently), but am wondering the point. I find the split in the arbitral jurisprudence very frustrating and somewhat discrediting to our system of arbitral justice. I doubt our courts would take the unorthodox and interventionist “tiebreaker approach” recently taken by the New Brunswick Court of Appeal, but this preliminary issue (which would be reviewed on the correctness standard) needs to find its way to court.

St. Lawrence Cement Inc. and International Brotherhood of Boilermakers, Local D366 (21 June 2011, Abramksky).

IPC/Ontario Continues to Show Pragmatism in Dealing with e-FOI Issues

The Information and Privacy Commissioner/Ontario has thus far demonstrated a good deal of pragmatism in exercising its power to review the quality of FIPPA and MFIPPA institutions’ e-mail searches. On June 30th, for example, it issued an order in which a requester claimed that an institution ought to have retained an independent IT expert to search and retrieve responsive e-mails, including “erased e-mails.” Despite the requester’s perception of conflict, IPC Adjudicator Morrow upheld the institution’s search as “coherent, systematic and responsible” in the circumstances.

This demonstrates that the IPC will defer to a reasonable search process and, absent special circumstances, is not likely to order the use of an external “e-discovery vendor.” Note that the IPC has also endorsed the choice to use vendors, a choice which allows institutions to pass through 100% of the reasonable costs of search and retrieval (which is not the case for internal searches). For an example of a case in which the use of an external IT vendor led to a valid yet very high yet reasonable fee estimate see Order MO-2154 .

IPC Order MO-2634, 2011 CanLII 43653 (ON IPC).

Master McLeod Reminds Parties to Look Way Ahead in Planning for Production

“Even at the pleading stage parties should have an eye on what issues will be raised by the litigation and therefore what will be the scope of production and discovery.”

This statement in a June 24th judgement by Master McLeod seems so trite, but is a worthy reminder given production can be so challenging that it seems like an end in itself and given the new mandate in Ontario that demands parties collaborate to achieve a production process “that meets the needs of the litigation,” no more and no less. Master McLeod imposed a modest costs sanction on a party for failing to work to narrow its production, including by producing the most obviously relevant records first. In doing so, he stressed the need to draw a link from the start between pleading, production and proof:

A party might be forgiven for not anticipating the need for documents made relevant by the other party’s pleading but there is far less excuse for not anticipating the documents required because of the party’s own pleading.

Secondly, related to the above, I am driven to the inference that there is no readily identifiable subset of documents which Allen Vanguard used to reach the conclusion there was misrepresentation and fraud.

Master McLeod ordered the producing party to pay $7,000 for breaching production obligations and failing to meet the times set out in court orders. He also noted, “The question of recovery of costs imposed by ultimately unnecessary production and discovery is specifically reserved to the trial judge.”

Hat tip to Peg Duncan!

L’Abbé v. Allen-Vanguard, 2011 ONSC 4000 (CanLII).