NSCA Opines on Waiver of Privilege

Last Friday, the Nova Scotia Court of Appeal issued a judgment in which it affirmed a finding that that the province’s Department of Transportation and Infrastructure Renewal waived privilege by providing a summary of an opinion to citizen who later requested a copy of the full opinion in an FOI request.

The Court rejected the Department’s argument that privilege held by the provincial crown can only be waived by the executive branch. It said that, “a court should look at the authority of a particular government actor and determine whether the advice sought and any waiver ‘follow’ or is ‘coextensive’ with that person’s subject-matter and/or territorial responsibilities.”

The Court also affirmed a finding that the Department official who disclosed the summary did not “voluntarily evince an intention” to waive privilege by making the summary. It did not quarrel with case law the Department put forward for the principle that sharing the conclusions of a legal opinion does not indicate an intention to waive privilege. Rather, the Court relied on the application judge’s finding that the offical had disclosed reasons for the opinion along with the “heart of the opinion.”

Finally, the Court made a comment on waiver of privilege based on the need to promote fairness and consistency. It did not outright reject the Department’s argument that the fairness and consistency basis for waiving privilege applies only in the context of litigation, but suggested (at para. 42) that fairness issues are engaged when a government actor responds to valid queries from a citizen by reference to a legal opinion.

Nova Scotia (Transportation and Infrastructure Renewal) v. Peach, 2011 NSCA 27 (CanLII).

Enhanced Access To Information on Marriage Breakdown

The long awaited Family Law Matters Regulations supporting Bill 133, the Family Statute Law Amendment Act, 2009, have been released for comment by the Ontario Government. Bill 133, once in force, will radically alter the marriage breakdown pension division regime in Ontario. In addition to expediting the division process by moving to an immediate division system (currently spouses must wait until the member of the pension plan retires or terminates employment before the pension can be divided), Bill 133 and the Regulations provide for greater access to information for non-member spouses.

Under the current system, a spouse is not automatically entitled to information regarding a member’s pension. Plan administrators are required to protect a member’s personal information – including the quantum of his or her pension accruals. For the spouse to obtain information regarding the member’s pension, the member must consent in writing. Where that is not possible (e.g., the member is unwilling), often a court order is necessary. The only statutory right to information arises once a separation agreement or court order dividing the pension has been filed with the administrator, in which case the spouse is entitled to notice when the member is terminating and the same options as the member with respect to the transfer or payment of the pension.

Once Bill 133 is in force, either spouse will be permitted to apply to a plan administrator for a statement of the value of the member’s pension (for family law purposes). The statement will be required to be in the prescribed form and contain specified information:

particulars identifying the pension plan;
the name and birth date of each spouse;
the employment and membership status of the member;
the date of marriage or co-habitation;
the date of separation;
the value of the pension benefits determined for family law purposes; and
any related financial information (e.g., whether the member has accumulated additional voluntary contributions).

The statement must also set out general information regarding the plan, including its funded status and whether there is a wind up or surplus related event that would impact the member’s entitlement. Administrators will be permitted to charge a small fee for the creation of these statements (no more than $500 if the plan provides defined benefits).

Ontario has lagged behind other jurisdictions with respect to spousal rights to access pension-related information. Bill 133 “equalizes” the playing field for spouses dealing with marriage breakdowns by ensuring that both spouses have easy access to the information required to understand and address the division of the pension in the family law case.

Does qualified privilege apply in a “public space”?

In Rodrigues v. Toop, 2011 ONSC 794, the Ontario Superior Court of Justice court recently considered whether qualified privilege applied to a communication in a public space.

The Plaintiffs were members of a union local executive. The Defendant was a union steward who distributed a flyer in a public car park to individuals who identified themselves as union members, containing allegedly defamatory statements about the members of the executive. The issue was whether qualified privilege attached to the communications. The Plaintiffs argued that when the flyers were distributed in a public place and not at a union meeting, qualified privilege no longer applied.

The court held that the Defendant’s method of communication “was less than ideal” but that qualified privilege attached because, while the distribution of the flyer took place in a public space, “it was not a public message”. The key factual finding for the court was that there was no evidence that the Defendant had distributed the flyers to any member of the general public (ie. to a non union local member) and that therefore “the reputation of the Plaintiffs was not tainted in the general public”.

This decision represents a potentially important application of the principle that qualified privilege will only attach where the person who makes the statement has an interest or a duty to make it to the person to whom it is made, and that the other person has a corresponding interest or duty to receive it. It remains to be seen whether the “public space” vs. “public message” analysis will take hold.

A link to the decision is here.

Nova Scotia CA Favours Open Courts Over Youth Privacy in Facebook Defamation Case

The Nova Scotia Court of Appeal has just issued a decision in which it affirmed a decision to deny a potential defamation claimant the use of a pseudonym (initials) in pursuing a defamation claim.

The appeal was brought by a 15-year-old girl who has taken issue with an individual who created a fake and allegedly defamatory Facebook profile in her name. In May 2010, she succeeded in arguing for production of the identity of the individual associated with the fake profile before LeBlanc J. of the Nova Scotia Supreme Court. At the same time, LeBlanc J. denied the appellant an order permitting the use of a pseudonym and denied her a publication ban.

Saunders J.A. wrote today’s judgment for the Court of Appeal. He upholds LeBlanc J.’s order on a deferential standard, but nonetheless makes some broad and principled statements in favour of the open courts principle. More specifically, he says:

that a court should not apply its parens patriae jurisdiction to allow a child to sue anonymously for defamation (para. 65);
that an order to shield the identity of a defamation plaintiff (regardless of age) is an anathema to an action in defamation, which is about public vindication of reputation (paras. 80 to 85); and
that the presumed damage to reputation that flows from a defamation finding does not excuse a party who is seeking a restrictive order from proving “a serious risk to the proper administration of justice” as called for by the Dagenais/Mentuck test (para. 96).

Saunders J.A. ends by saying that openness will produce a laudatory result in the circumstances: “The public will be much better informed as to what words constitute defamation, and altered to the consequences of sharing information through social networking among “friends” on a 21st century bulletin board with global reach.”

A.B. v. Bragg Communications Inc., 2011 NSCA 26.

Alberta Court set to Hear Faculty E-mail Case

On February 22nd, the Alberta Court of Queen’s Bench issued a procedural order dealing with two judicial review applications about a request for e-mail communications between a University of Alberta faculty member and a selection committee of the Social Sciences and Humanities Research Council.

The university brought an application to quash a decision in which the OIPC found that the e-mails sought by the requester were under its custody or control. The Association of Academic Staff of the University of Alberta brought its own application, and also claimed it ought to have been given notice and standing by the OIPC. Over the university and OIPC’s objection, the Court earlier held the the association’s application could proceed based on this very significant procedural ground. On February 22nd the Court held that the two applications should be heard consecutively, with the association’s application proceeding first.

University of Alberta v. Alberta (Information and Privacy Commissioner), 2011
ABQB 100.

Alberta OIPC Decision Quashed for Reasonable Apprehension of Bias

On February 22nd, the Alberta Court of Queen’s Bench quashed an Alberta OIPC decision because comments made by the Commissioner in the decision gave rise to a reasonable apprehension of bias.

The decision involved an objection to the Commissioner’s jurisdiction to inquire into a complaint made against the Alberta Teachers’ Association. The ATA lodged its objection several months after it had successfully obtained an Alberta Court of Appeal ruling in a separate matter that held the Commissioner had lost jurisdiction for failing to comply with time limits. (The appeal of the Alberta Court of Appeal ruling was just recently heard by the Supreme Court of Canada.) In this context, the ATA raised its jurisdictional objection in a manner that was somewhat snarky. It stated, “you should have come already to the conclusion that you have no more power to continue with the inquiry and should so notify the parties.” And also, “Kindly confirm to the parties at your very earliest opportunity that the inquiry is hereby terminated.”

The Commissioner dismissed the objection and made the following comment:

I make some concluding observations. One is that objections to time extensions add steps that themselves extend the time a matter takes, and expend the resources of this office that could otherwise be used to decide substantive issues. The ATA’s complaint is about the time taken on this matter, yet its objection has further delayed the process.

Further, the objection seems intended to ultimately defeat the purposes of the Act. I recognize that a party acts within its rights in bringing an objection based on timing, and organizations that are prejudiced in their ability to respond by the passage of time should not hesitate to do so. However, the ATA has not indicated how it would be prejudiced if the matter were to proceed. A primary purpose of the Act is to enable me to provide direction to organizations as to whether they are in compliance with their duties under the legislation. In the absence of such prejudice, I would ask respondent organizations, even private ones, to consider whether it is in their own and the public interest to make objections for the purpose of avoiding direction as to how to meet their duties under the legislation. As well, it is disingenuous for organizations to selectively rely on the timing provisions of the Act, or not, depending on whether doing so meets their own interests.

My final observation relates to the tone of the ATA’s letter. It states:

As neither of the tests in paragraph 35 [of the ATA case] can be satisfied in this case, I have concluded that this notice of your default is necessary and should suffice to terminate the inquiry process, in accordance with the presumptive consequence set out in paragraph 37(2) [of the ATA case].

Kindly confirm to the parties at your very earliest opportunity that the inquiry is hereby terminated. Thank you for your immediate attention to this matter.

The decision as to whether this inquiry is to continue must be made by me having regard to the submissions of both parties and the facts and law I regard as relevant. This demand that I terminate the inquiry, at my earliest opportunity, simply on the basis of the ATA’s “notice of my default”, reflects a misunderstanding of the different roles of the parties and the decision maker in this process. The ATA may put forward its views and make submissions, but it is not the decision-maker. Furthermore, while parties need not be deferential, they must be appropriately respectful of the role of the tribunal. I concur with the comment of the Complainant in this case that the demand made by the ATA, as quoted above, is not appropriately respectful.

Justice Graesser held that this comment, and in particular its attribution of dishonesty or a lack of candor to the ATA, gave rise to a reasonable apprehension of bias. He made clear, however, that it was okay for the Commissioner to “call a spade a spade” by criticizing the ATA’s presumptuous and disrespectful submission.

Justice Graesser rejected the ATA’s request to issue an order that would terminate the matter and, instead, ordered its objection to be re-heard by another adjudicator of the OIPC or otherwise delegated decision-making powers by the Commissioner.

Hat tip to Linda McKay-Panos at ABlawg, who summarizes the decision here.

Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2011 ABQB 19 (CanLII).

Arbitrator Picher Okays Collection of Personal Communication Device Records

Arbitrator Michel Picher issued a notable decision last June that recently came to my attention. He held that Canadian Pacific Railway could establish a policy of investigating serious accidents or incidents by asking employees to produce personal communication device records (with the content of messages and information about the identity of parties to communications redacted).

The company did a good job of establishing the serious risk of distraction posed by the use of personal communication devices and the need for the policy, which Mr. Picher upheld on an application of the Office of the Privacy Commissioner of Canada’s four-part reasonableness test. He summarized his views as follows:

As the cases cited above amply reflect, arbitrators are properly sensitive to the encroachment of employers into the personal and private lives of employees, particularly as relates to non-work related activity. The reasoning in those cases, however, has little or no bearing on the instant dispute. This grievance is about whether the employer can make reasonable inquiries to establish or rule out the use of a personal cell phone or other electronic communication device by an employee while he or she is on duty. To the extent that that inquiry relates only to a serious accident or incident and does not touch on the content of personal communications, it is difficult to see on what responsible basis it could be concluded that there can be no legitimate employer interest to justify the inquiry.

Mr. Picher did stipulate that the company limit its request to the period of time pertinent to its examination.

Canadian Pacific Railway Company and Teamsters Canada Rail Conference, unreported (23 June 2010, M.G. Picher).

SCC Considers Defamation in a Group Context

On February 17, the Supreme Court of Canada released a decision that considered defamation in the context where comments had been made about a group. The defendant, André Arthur, was a Montreal radio host known for making provocative remarks. In a broadcast, he made quite negative, disparaging remarks aimed at Montreal taxi drivers, and especially those whose mother tongue was Arabic or Creole. The plaintiff was a taxi driver whose mother tongue was Arabic. He commenced a class action in defamation.

While the Supreme Court was considering defamation in the context of a claim made within Quebec civil law, the Court’s judgement contains numerous comments of general importance. For example, the Court discussed the importance of striking a balance between freedom of expression and protection of reputation, and noted that it is a constantly shifting balance:

[19] Of course, there is no precise measuring instrument that can determine the point at which a balance is struck between the protection of reputation and freedom of expression. In reconciling these two rights, the principles on which a free and democratic society is based must be respected. The intersection point will change as society changes. What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today. Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest. In the common law, for example, this Court has reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) and recognized the existence of a defence of responsible communication on matters of public interest (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640).

In terms of the discussion of defamation, the Court noted that three elements had to be proved: fault (determined by looking at the defendant’s conduct through a reasonable person standard); personal injury (i.e. damage to reputation as determined from the ordinary person standard); and causality between the fault and the injury.

In the decision before the Court, the focus was on personal injury, as both fault and causality had not been disputed. The question of personal injury was complicated both because of the procedural vehicle used to bring the action (a class action) and by the fact that the comments had been directed at a group (approximately 1,100 drivers whose mother tongues were either Arabic or Creole). With respect to the class action, the Court reaffirmed that it was merely a procedural mechanism that did not alter the legal requirements of the underlying cause of action.

Of perhaps greatest interest is the Court’s attempt to set out factors that come into play when determining whether comments directed at a group cause personal injury sufficient to ground a claim in defamation. Those factors are:

Size of the Group – As a general principle, “the larger the group, the more difficult it is to prove that injury has been sustained by the member or members bringing the action.”
Nature of the Group – “In general, the more strictly organized and homogeneous the group, the easier it will be to establish that the injury is personal to each member of the group.”
Plaintiff’s Relationship with the Group – The focus here is on the plaintiff’s status, duties, responsibilities and activities within the group. “A person who is a well-known member of a group is more likely to suffer damage to his or her reputation as a result of comments made about the group.”
Real Target of the Defamation – “The judge must also consider the words, gestures or images used to convey the message…The more general, evasive and vague the allegations, the more difficult it will be to go behind the screen of the group.”
Seriousness or Extravagance of the Allegations
Plausibility of the Comments and Tendency to be Accepted – “Generally speaking, a plausible or convincing allegation will capture the ordinary person’s attention more and thus make it easier for that person to connect the allegation with each or some of the group’s members personally.”
Extrinsic Factors – In this last category, one considers factors related to the maker of the comments, the medium used and the general context.

Weighing these factors, the majority of the Court (Abella J. dissenting) found that the plaintiff had not established injury of a personal nature. Thus, the claim in defamation could not proceed.

Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9

Court Grants Ex Parte Order to Preserve Facebook

On February 4th, the New Brunswick Court of Queen’s Bench issued an ex parte order that required the plaintiff in a motor vehicle action to print and otherwise preserve the contents of her Facebook. Significantly, the order required the plaintiff’s own solicitor to appoint an agent to initiate and supervise the preservation process before speaking with his client.

The Court held that there was reason to believe the plaintiff had not produced evidence from her Facebook that would meet the “semblance of relevance” test for production. The plaintiff claimed that she could not travel by motor vehicle for more than one hour without discomfort, suffered headaches four to five days per week and could not carry groceries or any object that weighs more than five to ten pounds. However, the public part of her Facebook contained a number of pictures of her riding a “zip line” and there was (untested) evidence that these photographs were taken after the accident that gave rise to her claim. For example, the plaintiff publicly posted a photo in an album entitled “USVI 2010,” which contained a picture of her lying on a beach with “St. John USVI 2010” scrolled in the sand.

The Court did not apply the test for an Anton Piller order, but did question whether it was proper to grant ex parte relief. In resolving this question, it relied on the following evidence about the difficulty in determining whether Facebook data has been deleted.

Most importantly to the ex parte nature of the Motion, Mr. McNulty deposes that the creator of a Webpage on Facebook can add or delete to and from the site without leaving an electronic trail that can be followed by anyone seeking to data mine what may have been posted on that personal site over time and subsequently removed. Thus a forensic reconstruction of “dumped” data that might ordinarily be undertaken with respect to a computer hard drive is not an available option unless access to the relevant social network computers located elsewhere in the world was feasible and some data trail was able to be followed by an expert in the field of computer data retrieval or reconstruction at that site.

Notably, this evidence is about the consequences of deletion rather than the likelihood that the plaintiff would actually delete once put on notice. In fact, the Court judged the plaintiff’s disposition positively, suggesting she likely failed to produce the contents of her Facebook page out of mere ignorance.

The Court also recognized that an order requiring the plaintiff’s lawyer to help ensure the pages were properly preserved could do serious harm to the solicitor-client relationship, but felt that an ex parte preservation procedure was warranted and felt that it did not have the power to order a search by a neutral. As a kind of compromise, the Court ordered the plaintiff’s lawyer to appoint an agent to schedule a meeting with the plaintiff, advise her of the order, observe the printing and downloading of content and obtain and seal copies of the same for delivery to the plaintiff’s lawyer. The most troubling part of the order is that it bound the plaintiff’s lawyer to initiate this process without advising his client.

Hat tip to @pegduncan and @jfderico for pointing to this case.

Sparks v. Dubé, 2011 NBQB 40 (CanLII).

Ontario Arbitrator Says Employers Entitled to More Than a Bare Medical Certification

On January 27th, Ontario labour arbitrator George Sudykowski issued an award about the scope of information employers may generally require in a medical certificate. He held that employers need not accept a bare statement from a doctor confirming an employee’s illness:

I agree with the thrust of the British Columbia jurisprudence that it is not inordinately invasive for an employer to ask that a medical certificate include the reason for incapacity, which would appropriately consist of a general statement of the nature of the disabling illness or injury, without diagnosis or symptoms. It is not unreasonable for an employer to require an employee to provide the reason for her absence or claim for STD benefits, and the mere fact that providing that reason (i.e. the nature of her illness or injury) may suggest a diagnosis does not excuse the employee from providing the reason in order to satisfy the onus on her to justify her absence and claim for benefits even in the first instance.

He also said:

I also respectfully disagree with Arbitrator (as he then was) Whitaker’s conclusion in Re Hydro Agri Canada, supra (at page 108), that an employer is generally not entitled to require that a medical certificate include the date(s) of the relevant visit(s) to the medical health professional who provides the certificate. Not only is this at best remote confidential medical information, the date of visit(s) will both tend to confirm that the medical health professional actually saw the employee for the purpose of the certificate, and will reveal the timeliness of the visit relative to the absence in issue, which is a relevant consideration.

Arbitrator Surdykowski rejected a seemingly impassioned presentation by the Union in which it argued the importance of medical privacy, the reliability of physician statements and the weak distinction between information about “nature of the illness” and information about “diagnosis.” Mr. Sudykowski said the Union’s case rested on “selective optimism.” He also acknowledged that the disclosure of information about the nature of the illness may indicate a diagnosis, but suggested that the routine disclosure of “nature of the illness” information for the purpose of medical certification is nonetheless reasonable and appropriate.

Providence Care, Mental Health Services v. Ontario Public Service Employees Union, Local 431, 2011 CanLII 6863 (ON L.A.).