Extension of Publication Ban Denied in Facebook Bullying Case

On Monday, the Nova Scotia Court of Appeal issued a procedural judgement in the A.B. v. Bragg Communications Inc. matter that may affect its path to the Supreme Court of Canada.

The matter is about a whether a 15-year-old girl who has taken issue with an individual who created a fake and allegedly defamatory Facebook profile in her name can sue anonymously. On March 4th, the Nova Scotia Court of Appeal denied her this right but continued the in-place publication ban to preserve the girl’s right of appeal. The ban was set to lapse at the end of yesterday, May 3rd.

In Monday’s judgement Justice Beveridge held that he had no jurisdiction to extend the publication ban because an application for leave had not yet been filed and he had no basis for finding that a miscarriage of justice would result from failing to grant the requested order. The girl argued that the potential appeal would be moot without the requested relief, but Justice Beveridge was doubtful, without evidence, that her identity would become known.

The media has now covered Monday’s ruling, apparently without naming the girl. I assume her identity is known amongst reporters who have covered this story, and speculate they are declining to publish it based on ethical considerations. If so, they should be applauded. The matter should be resolved on a less technical basis than represented by this latest judgement.

A.B. v. Bragg Communications Inc., 2011 NSCA 38 (CanLII).

Internal Investigations and Employee Privacy

I presented today at the Association of Certified Forensic Examiners annual fraud conference. My topic was managing privacy issues in internal investigations. My aim was to provide some content to help investigators build a better dialog with internal legal counsel and privacy officers about investigation tactics that touch on privacy issues. This was the first time I’ve done this presentation, and it seemed to go well.

I also tagged on a brief section on “the investigation record” out of interest. As part of this section I surveyed the audience and was interested to see that about half of attendees conduct witness interviews with an audio recording device, something I have recently guided clients away from because of its potential impact on witness candor. One audience member, a former police officer, said that witnesses forget about the recording device after about two minutes. Interesting and notable.

My slides are below.

Court says implied undertaking applies to Stinchcombe disclosure

On March 15th the British Columbia Supreme Court issued a significant decision on the implied undertaking. It held:

that Crown disclosure in criminal cases is subject to an implied undertaking not to use the disclosure for a collateral purpose;
that the undertaking is not spent when disclosure materials are filed in interim applications (though is spent in respect of materials admitted as evidence at trial); and
that a court has inherent jurisdiction to enforce the undertaking by ordering materials to be returned to the Crown.

The Court ordered the respondents and their defence counsel to return documents to the Crown given the large volume of documents disclosed, the high profile nature of the criminal case, the number of third party interests implicated by the disclosure and the degree to which third party interests were affected and the failure of the Crown and respondents to agree on a means of adequately protecting the undertaking.

R. v. Basi, 2011 BCSC 314 (CanLII).

Federal Court Dismisses PIPEDA Access Application as Resolved

On April 12th the Federal Court dismissed a PIPEDA application, for the most part, because the applicant had been provided her personal information in the course of an Office of the Privacy Commissioner of Canada complaint investigation.

The applicant complained when she only received copies of records in her personnel file in response to an “all personal information” access request. The respondent provided the applicant with additional records in the course of the OPC investigation. The OPC was satisfied, and held the complaint to be well-founded and resolved, and made some recommendation about process that the respondent followed.

The Court held (based on three search affidavits) that the respondent had provided the applicant with all her personal information. It also held that the respondent was at fault for not providing the applicant with all of her personal information in a timely manner, but did not allow the application based on this finding. The basis for this disposition is not clear, but the Court did dismiss a number of remedies the applicant requested as unjustified and beyond its jurisdiction. Its reasoning also suggests that it viewed the applicant’s timeliness allegations as too trivial to be of consequence.

Though the Court dismissed the application, it did not award costs to the respondent because it had attempted to achieve exoneration in the application – an approach the Court said amounted to an unsuccessful cross-application. The applicant was self-represented.

Kollar v. Rogers Communications Inc., 2011 FC 452.

SCC Comments on Requirements for an Anton Piller

The Supreme Court of Canada issued a decision yesterday in which it affirmed an Anton Piller order issued in support of the province of British Columbia’s action for recovery of monies from Ripudaman Singh Malik and family.

The judgement is about the admissibility of prior judgements as evidence in a subsequent interlocutory proceedings. Justice Binnie, for the Court, held that prior judgements are generally admissible as evidence as proof of their findings provided the parties are the same or were themselves participants in the prior proceedings on similar or related (as opposed to identical) issues.

The Supreme Court of Canada decision in Celanese remains the leading case on the requirements for an Anton Piller order, though Justice Binnie did comment on requirement that there be a “real possibility” that the defendant may destroy evidence. He said:

It will often be difficult or perhaps impossible for a plaintiff to show that a defendant will actually destroy evidence, but it is always open to the court to draw inferences reasonably compelled by the surrounding circumstances. As Paperny J. (as she then was) observed in Capitanescu v. Universal Weld Overlays Inc. (1996), 46 Alta. L.R. (3d) 203:

Generally, courts have inferred a risk of destruction when it is shown that the defendant has been acting dishonestly, for example where matter has been acquired in suspicious circumstances, or where the defendant has knowingly violated the applicant’s rights. [para. 22]

This passage was cited with approval by the Alberta Court of Appeal in Catalyst Partners Inc. v. Meridian Packaging Ltd., 2007 ABCA 201, 76 Alta. L.R. (4th) 264, at para. 13.

Justice Binnie held that the motions judge did not err in finding a “real possibility” from evidence that Mr. Malik had previously refused to provide proper disclosure of financial information.

British Columbia (Attorney General) v. Malik, 2011 SCC 18.

Sunset Clause Doesn’t Demand Physical Removal of Disciplinary Notes From File

On December 3, 2010, Arbitrator Goodfellow held that the following collective agreement language does not require the physical removal of expired disciplinary documentation from an employee personnel file:

ARTICLE 8 – ACCESS TO FILES

8.01 – Access to Personnel File

Each employee shall have reasonable access to his/her personnel file for the purpose of reviewing any evaluations or formal disciplinary notations contained therein, in the presence of the Director of Labour Relations & Human Resources or designate. An employee has the right to request copies of any evaluations in this file.

8.02 – Cleaning of Record

Any letter of reprimand, suspension or any other sanction will be removed from the record of an employee eighteen (18) months following the receipt of such letter, suspension or other sanction provided that such employee’s record has been discipline free for one year. All leaves of absence in excess of ten (10) calendar days will not count toward either of the above periods.

Arbitrator Goodfellow appears to rely most strongly on the apparent distinction drawn in the above language between a “record” and a “personnel file.” More broadly, he says, “any such physical ‘removal’ would be secondary to the primary purpose of any sunset clause, which, in our view, is to preclude Employer reliance on stale discipline, except in the kind of limited circumstance(s) to which the Union refers [e.g., to rebut an affirmative statement made by an employee about having a clean record] .”

Carillion Services v. Canadian Union of Public Employees, Local 942, 2011 CanLII 10605 (ON L.A.).

NBCA Takes Issue With Breadth and Basis for Non-Party Order, Questions Appropriateness of Non-Party’s Cooperation

On March 31st, the New Brunswick Court of Appeal issued a judgement in which it quashed an order requiring the RCMP to produce two investigation files. In doing so, made some significant comments about privacy protection and non-party production orders.

The plaintiff’s home burnt down. The RCMP investigated and did not lay charges. A month earlier, it had investigated a break and enter at the home.

The insurer denied the plaintiff’s insurance claim and defended her action on the basis of a policy exclusion that it alleged applied because the plaintiff left the house vacant for more than 30 days. It sought an order for production of the two entire RCMP investigation files, expressly including personal information protected by the federal Privacy Act. The insurer argued (without any supporting evidence to support an inference) that the files would likely contain information related to the vacancy issue. The RCMP consented and, remarkably, the Attorney-General drafted the terms of the order and wrote the court requesting that the insurer’s production motion be allowed.

The Court of Appeal quashed the order on a narrow point of law. It held that the RCMP is not a “person” that can be subject to a non-party order for production under the New Brunswick Rules of Court. Chief Justice Drapeau went on, however, to comment that the order was overbroad and granted without a proper basis. In doing so, he said:

the New Brunswick rules contemplate that non-party orders target specific materials because such orders are not meant to invite discovery
that non-party consent (though “significant”) does not relieve the requesting party from establishing the requirements for a non-party order

The Chief Justice also questioned whether the RCMP’s actions were proper though, given the Attorney-General was not before the Court, made clear that the Court was not passing judgement on “whether their involvement is faithful to the spirit, if not the letter, of the Privacy Act, including its stated purpose (s. 2) and its prohibition, except in defined circumstances, against disclosure of an individual’s personal information without his or her consent.”

Bennett v. State Farm Fire and Casualty, 2011 NBCA 27 (CanLII).

BCCA Ruling Suggests that Duty to Preserve is not Based on Size of Potential Claim

On February 4th, the British Columbia Court of Appeal affirmed a ruling that a gaming company had no duty to preserve betting slips redeemed by an individual to whom it denied a prize claim for over $6.5 million.

The plaintiff claimed he submitted 20 to 25 betting slips into the gaming company’s redemption machine, and that the machine retained five to 10 tickets as winning slips. The machine then produced a voucher for $6.5 million, which the gaming company would not pay based on a claim that the voucher was produced in error. It based this conclusion on an examination of a winning slip that was stamped by the machine as associated with a $6.5 million win but that did not reveal a winning wager at all. At the time it denied a payout, the gaming company also denied the plaintiff’s request to see his other slips that were retained by the machine. The gaming company destroyed these slips in the ordinary course of its business a week or two later, well before the plaintiff threatened or commenced an action.

Last March, Justice Fisher of the British Columbia Supreme Court held that the gaming company had no duty to preserve when it destroyed the records. She said:

While perhaps it may have been prudent for the defendants to have contacted Mr. Patzer before the betting slips were destroyed, I cannot accede to Mr. Laxton’s submission that they had a positive duty to do so. I appreciate that the error of issuing a cash voucher for such a large amount of money is significant. I accept that Mr. Patzer asked to see his betting slips on November 6, 2004 but he did not follow up this request further. More importantly, if Mr. Patzer was not satisfied with the explanation he had been given, he should have advised the defendants. They would then have been at least put on notice that the matter had not been put to rest.

…

Here, the slips were destroyed in the ordinary course of business before the defendants were aware that Mr. Patzer was considering litigation or even challenging their explanation for the error. While it is unfortunate that they were destroyed so soon after the event, the defendants did not intentionally destroy the winning betting slips in an effort to suppress the truth. Accordingly, there is no basis to apply the doctrine of spoliation.

As there is no common law duty to preserve property which may possibly be required for evidentiary purposes and given these findings, the plaintiff’s claim based on the defendants’ destruction of the betting slips must fail.

The Court of Appeal affirmed this ruling. It stressed that the gaming company had provided the plaintiff with an immediate denial and explanation and that the plaintiff, despite attending one day later with legal counsel, did not provide the company formal notice of his intention to claim before he sued two years later.

Patzer v. Hastings Entertainment Inc., 2011 BCCA 60 (CanLII).

Social Media and the Hiring Process

I spoke today at The Canadian Institute’s “Managing Business and Legal Risks in Social Media” conference in Toronto. I’ve talked about this topic before, but I have advanced my thinking lately.

For one, I’ve developed some new thoughts on the subject of notification and consent to conduct “internet background checks” on potential candidates. I’ve gone from suggesting that, as a matter of policy, employers have no reason to forgo seeking consent to believing that, in some circumstances, manipulation of published information may be too great a concern to allow for notification and consent. The right answer, from a policy perspective, depends on an employer’s precise objectives.

Of course, those employers who are regulated by privacy legislation must seek consent to collect personal information from the internet for candidate screening purposes unless they can rely on a “publicly available information” exception. These exceptions are worded fairly broadly. PIPEDA, for example, carves out the following from its consent requirement:

“personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information”

Though some might argue that everything posted online does not “appear in a publication,” I’d rather argue the opposite. The other relevant limitation evident from the language above is on seeking information “provided” by persons other than the subject of the check. The Alberta and British Columbia statutes have similar carve outs from their consent rule. An interesting and relevant topic. Do you have a view? Please comment.

The other question I addressed today was, “How should the formal employment contract (as opposed to policy) be used to protect against employment-related social media risks?” The answer I gave today is “not much,” though I’m an employment contract minimalist. I do like the idea of “surfacing” and expressly dealing with potential conflicts that are foreseeable based on a candidate’s established online profile and established media properties, but otherwise think employers should deal with social media issues through policies that are ancillary to formal contractual documentation but incorporated by reference.

Slides with complete thoughts on the legal requirements for conducting internet background checks and more below!

FCA Side-Steps Challenge to Admin Tribunal’s Power to Determine Privilege, Gives Guidance

On March 23rd, the Federal Court of Appeal outlined how administrative tribunals should deal with solicitor-client privilege claims.

The matter involved a disputed solicitor-client privilege claim brought before the Public Service Labour Relations Board. The Court held that the Board erred by ordering the Canada Revenue Agency to file an affidavit in support of its privilege claim based on an assumption that the withheld communications were relevant. This finding allowed the Court to avoid answering the CRA’s challenge to the PSLRB’s authority “to determine a claim for privilege.” The Court did comment, however:

Whether or not a tribunal has the legal authority to determine if documents are subject to solicitor-client privilege, it may conduct a preliminary screening, without inspecting them or issuing an order that would breach the privilege if validly claimed. A bare assertion of privilege should not be allowed to automatically derail the conduct of a proceeding if the tribunal has no authority to decide the validity of the claim, any more than a tribunal with authority to decide a privilege claim should inspect the document the moment a party challenges the validity of the claim.

If a tribunal is not satisfied on the basis of the information available to it that the documents
in question are capable of being the subject of a valid claim for solicitor-client privilege, it can admit them or order their production. If the tribunal is not satisfied that the documents may be relevant to issues in dispute before it, it will exclude them or not order their production on this ground. In either case, the tribunal’s rulings would be subject to appeal or judicial review.

Canada (Attorney General) v. Quadrini, 2011 FCA 115 (CanLII).