John K. Rabeij Named Executive Director of The Sedona Conference

This a quick post to pass on the news that John K. Rabeij will succeed Richard Braman as Executive Director of The Sedona Conference – the non-profit educational organization that has influenced Canadian e-discovery practice through its “Sedona Canada Principles.”

TSC’s press release says the following about Mr. Rabeig:

Mr. Rabiej graduated with a Bachelor of Arts degree from Loyola University (Chicago) in 1975. He earned his juris doctor degree from the University of Illinois College of Law in 1978 and a Master’s degree in International Relations from Georgetown University in 1983. Mr. Rabiej has published numerous chapters and articles in Moore’s Federal Practice (Third Edition) and Weinstein’s Federal Evidence treatises on issues about electronic discovery, asset forfeiture, and authentication of electronic evidence. His works on rules-related issues have been published in the Federal Litigation Guide, Practical Litigator, and Matthew Bender’s Forms. Mr. Rabiej writes bi-monthly expert commentaries for LEXIS-NEXIS on electronic discovery issues. He was elected to the American Law Institute in May 2004.

Ralph Losey is a core member of the American e-discovery community and has posted an announcement with some additional context here. Braman will continue his valued contribution to the advancement of e-discovery practice by serving as TSC’s Chairman of the Board and Co-Chair of its Executive Committee.

Incidentally, the Sedona Canada working group has recently issued a public commentary version of a paper on proportionality. It’s available here with instructions on how to provide feedback.

Party complains about receiving confidential information of non-parties. What next?

On January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.

Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties? (2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v. Collins Barrow Toronto LLP, 2011 ONSC 441 (CanLII).

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Party complains about receiving confidential information of non-parties. What next?

On January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.

Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties?(2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v Collins Barrow Toronto LLP, 2010 ONSC 598.

The Pitfalls of Accessing Private Emails

Here’s a link to a Law Times article, reviewing an interesting decision recently released by the B.C. Supreme Court, which awarded damages for improper publication of the plaintiff’s personal emails.  The parties were former spouses who were already engaged in extensive family law litigation — which sets the unfortunate and messy backdrop for the privacy-related litigation.  The defendant husband published a number of defamatory comments about his ex-wife, by way of emails and internet postings.  He included references to private email exchanges of his former spouse, and which he discovered on an old home computer.

The Court concluded that the defendant had “taken his battle with [his ex-wife] over custody and access far outside the ordinary confines of the family court litigation.”  In addition to defaming his ex-wife, the defendant was found to have breached her privacy by publishing the contents of her private emails.  As a result, he was ordered to pay damages of $40,000 for breach of privacy and defamation.

The breach of privacy aspect of the decision flows from B.C.’s Privacy Act, which creates an express statutory recourse for privacy violations.  Other jurisdictions, including Ontario, have not adopted such statutory causes of action for violation of privacy, so courts in those jurisdictions would not necessarily arrive at the same result.  However, some cases have suggested that there may be a common law tort for invasion of privacy, which could form the basis for similar claims.

The decision provides a reminder of the need to be prudent in accessing – and certainly in publishing – emails in respect of which there is a right or an expectation of privacy.

Also a good reminder of the wisdom of avoiding family law litigation!

The Special Case of E-Mail (as Electronic Evidence)

I attended and presented at Day 1 of  the Osgoode Short Course in Obtaining, Producing and Presenting Electronic Evidence.

Thank you to Chuck Rothman of Wortzman Nickle for fielding my question about preserving web based communications. He suggested that Adobe Acrobat does a good job of producing a reasonably true copy of web page renderings, but should be used in conjunction with good evidence handling practices – e.g., keeping a log of steps, hashing the file produced and so on. Chuck also mentioned Facebook’s new feature that allows users to download profiles as worth thinking about when dealing with Facebook preservation issues.

I presented with John Gregory on “The Special Case of Email.” John is a true authority on electronic evidence, and I’ve been lucky to do this presentation with him a few times now. Our slides are below.

For some of John’s materials on electronic evidence, check out his web page here. We also noted Stephen Mason’s excellent website as a resource on electronic evidence. It is linked here.

Owner with a site access drug testing policy not a co-employer

On January 11th, the Alberta Court of Appeal issued a significant site access drug testing decision in which it held the owner of a construction site did not co-employ a subcontractor’s employee for the purpose of Alberta human rights legislation.

The employee worked for a subcontractor on a construction site owned by Syncrude. Syncrude required all contractors’ employees to have a drug test as a condition of site access. The employee failed, filed a human rights complaint and succeeded in arguing that Syncrude was a co-employer before a human rights panel. The Panel chair stated, “It would be an organization façade to think that a company could circumvent human rights legislation by inserting a contractor between the company and the workers it requires to build its project.”

The Court of Appeal held that co-employment is possible under the Alberta Human Rights, Citizenship and Multiculturalism Act and articulated factors for assessing whether co-employment exists, but held that the Panel erred in finding Syncrude was a co-employer. It appears that Syncrude’s relationship with its general contractor and the various subcontractors on its site was nothing out of the ordinary. The Court commented:

It is Lockerbie & Hole [the complainant’s “true” employer] that must ensure that Mr. Luka’s rights under the Act are respected, and that any discrimination demonstrated by Mr. Luka is either a bona fide occupational requirement under ss. 7(3), or “reasonable and justifiable in the circumstances” under s. 11. Any duty to accommodate a disability that arises must be met by Lockerbie & Hole. Mr. Luka is not denied rights under the Act, but the burden of protecting them falls on Lockerbie & Hole…

If Mr. Luka worked for one of Lockerbie & Hole’s subcontractors, he presumably would have five employers: the subcontractor, Lockerbie & Hole, Marsulex, Kellogg Brown and Root, and Syncrude. If he was further down the contractual chain, he might have even more employers. This is not a result the Legislature should be taken to have intended by the use of the word “employer”.

This is an important site access drug testing decision. Furthermore, the Court’s reasoning on the meaning of “employer”  and the parameters for co-employment under human rights legislation are of general importance with implications outside of Alberta.

Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3 (CanLII).

SCOTUS background check case is very… American

Today, the Supreme Court of the United States unanimously decided that elements of a background check administered to contractors working at a NASA laboratory are constitutionally permissible.

The contractors challenged a question that asks whether individuals have “used, possessed, supplied or manufactured illegal drugs” in the last year and a question to those answering “yes” about “treatment or counseling received.” They also objected to the breadth of inquiries routinely made to references, including questions that sought facts potentially related to “honesty or trustworthiness,” “financial integrity,” “abuse of alcohol and/or other drugs,” and “mental or emotional stability.”

Justice Alito wrote the majority opinion. He assumes, without deciding, that a right to “informational privacy” exists under the United States Constitution but holds that, in any event, the background check questions at issue are justifiable on a contextual balancing of interests. He stresses that government, when acting as employer, has a much “freer hand” to deal with individuals, stresses the pervasiveness of similar screening questions in the private sector and stresses that the information collected is well-protected by the federal Privacy Act.

Justice Scalia, with Justice Thomas concurring, wrote a concurring opinion in which he holds there is no constitutional right to “informational privacy.” He mocks the contractors for their failure to rely on a single provision of the Constitution in written argument and criticizes the majority for its “damaging” “never-say-never” position.

Justice Scalia’s display of sharp wit is well worth a read, but as Canadian employment law practitioner, the following statement by Justice Alito is even more remarkable:

Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will“‘efficiently and effectively’” discharge their duties. See Engquist, supra, at 598–599. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics. See, e.g., Breen & Matusitz, An Updated Examination of the Effects of Illegal Drug Use in the Workplace, 19 J. Human Behavior in the Social Environment, 434 (2009) (illicit drug use negatively correlated with workplace productivity).

This shows such different values than currently reflected in our own screening law. In particular, Canadian adjudicators have expressed great discomfort with the suggestion that individuals who casually use illegal drugs outside the workplace will be less efficient, effective or reliable while at work. Justice Alito (and his six esteemed colleagues) draw the link between illegal drug use simpliciter and workplace performance so easily that it makes you wonder whether we are missing something.

NASA v. Nelson, 562 U.S. ____ (2011).

Court of Appeal quashes Ontario IPC order on “correctional records” exemption

Today, the Ontario Court of Appeal held that the IPC erred in finding that an exemption to the right of access to personal information for “correctional records” did not apply to records related to a period of pre-sentence detention. It quashed the IPC’s order and referred the unresolved issues in the matter back to the IPC to be considered afresh by a new adjudicator.

The decision is about an exemption to the right of access to personal information contained in section 49(e) of FIPPA. It reads:

49.  A head may refuse to disclose to the individual to whom the information relates personal information,

(e) that is a correctional record where the disclosure could reasonably be expected to reveal information supplied in confidence

The Court held the IPC’s distinction between pre- and post-sentence custody was “artificial,” “unworkable” and “unreasonable.” First, it suggested that the IPC gave too much weight to the dictionary definition of “correction” and too little weight to meaning derived from the (broad) definition of “correctional services” in the Ministry of Correctional Services Act. Second, it stressed the narrowness of the section 14 “law enforcement” exemption in rejecting an argument that application of section 49(e) to pre-sentence detention records would cause an inexplicable redundancy in the statute. Finally, the Court suggested the IPC’s interpretation was not “workable” in light of the objective context – that is, it held “that at every stage of the [detention] process, be it at the pre-trial custodial stage or the post-sentence supervisory stage, correctional authorities are liable to be exposed to sensitive information about an inmate that has been provided on a confidential basis.”

The legal finding here is narrow, but the Court does endorse a nice statement from Sullivan and Driedger on the use of dictionary definitions in statutory interpretation: “However, while definitions may provide a useful starting point in interpreting a statutory provision, ‘definitions found in dictionaries say very little about the meaning of a word use in a particular context’: R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), at p. 27.”

Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2011 ONCA 32.