Case Report – Records protected by settlement privilege exempt from the right of public access in Ontario

Today, the Ontario Court of Appeal issued a significant decision in which it held that documents protected by settlement privilege are exempt from public access under the Ontario Freedom of Information and Protection of Privacy Act.

The LCBO denied access to various records related to a mediated settlement of a number of civil proceedings between itself and a winery. It relied on the “solicitor-client privilege” exemption in section 19 of FIPPA. This exemption has two branches. Branch 1 exempts records that are subject to solicitor-client privilege and litigation privilege as these privileges are recognized at common law. Branch 2 exempts records that are “prepared by or for Crown counsel for use in giving legal advice or in contemplation or for use in litigation.”

The Court of Appeal affirmed the Divisional Court’s Decision that the records were exempt because they fit within the Branch 2 exemption. In doing so, it made the following significant findings:

  • the term “litigation” in the Branch 2 exemption encompasses mandatory and consensual mediation of an Ontario civil dispute;
  • the phrase “prepared for Crown counsel” should not be narrowly read to mean “prepared at the behest of Crown counsel”; and
  • the “for use in litigation” requirement imports a requirement that the records be communicated to Crown counsel within a reasonably expected “zone of privacy.”

Though this is a very significant decision on the FIPPA Branch 2 exemption, the Court declined to opine an even more significant issue – an issue it framed as “Whether the common law settlement privilege is a free-standing exemption under FIPPA or whether FIPPA is a complete code.” The Divisional Court judgment strongly suggests that privileges recognized at common law and rooted in the public interest (such as settlement privilege) can trump the FIPPA right of access.

Liquor Control Board of Ontario v. Magnotta Winery Corporation, 2010 ONCA 681.

Case Report – Court comments on legality of surreptitious video surveillance

On October 6th, Ramsey J. of the Ontario Superior Court of Justice made the following comment on the legality of surreptitious video surveillance in striking a claim that alleged an “unlawful investigation scheme”:

As I have noted, the only conduct about which facts are alleged with any particularity consists of the insurance company hiring an investigator to investigate the plaintiff, and the investigator’s approach to a neighbour, during which he made himself known to the neighbour, who immediately told the plaintiff that the plaintiff was being investigated. That cannot possibly sustain a claim of wrongdoing or improper motivation.

Insurance companies are entitled to conduct surveillance of plaintiffs if they do so within the confines of the law. They cannot trespass on private property and they cannot intercept communications electronically. They cannot threaten witnesses or litigants. They cannot commit the tort of defamation. The plaintiff does not claim that they did. The fact that a private investigator is conducting an investigation is not defamatory. Anyone who is involved in a car accident or a divorce might be investigated by a private investigator.

Insurance companies do not need grounds to believe that the plaintiff is making a fraudulent claim before they conduct an investigation. They can conduct surveillance to refute a claim, to confirm a claim, or to see whether a claim is valid or not. They can photograph a plaintiff in places open to public view. They can identify themselves to the neighbours, and ask them for information about the case. Stripped of bald assertions and fanciful conclusions, the statement of claim alleges no wrongful acts and nothing from which improper motivation could be inferred.

This certainly highlights the significance of the Federal Court’s recent State Farm decision, which suggests that the collection of evidence in defence of a civil action is not PIPEDA-regulated notwithstanding the involvement of “commercial” actors such as insurers, lawyers and private investigators.

Pontillo v. Zinger et al., 2010 ONSC 5537 (CanLII).

Case Report – NSSC comments on litigation privilege and internal investigations

On October 5th, Justice Moir of the Nova Scotia Supreme Court made the following comment about litigation privilege and internal investigations:

Chrusz cannot stand for the proposition that once an investigation finds wrongdoing, and litigation is anticipated, litigation privilege attaches. That would be contrary to established principle: receiving legal advice about the litigation, or aiding its conduct, has to become the dominant purpose of the investigation.

Employers who investigate an employee for wrongdoing will have termination of employment in mind. Employers who have termination in mind will often reasonably anticipate litigation. However, such investigations are usually for the dominant purposes of getting to the bottom of the circumstances, and deciding what to do about the person’s employment once the facts are known.

His Honour’s judgment is otherwise a fairly fact-specific treatment of various privilege claims.

Saturley v. CIBC World Markets Inc., 2010 NSSC 361 (CanLII).

Case Report – Court says random alcohol testing reasonable

On September 20th, the New Brunswick Court of Queen’s Bench quashed a November 2009 alcohol testing award that held Irving Pulp & Paper had insufficient justification to implement random alcohol testing at a pulp mill.

The Court held that the majority of an arbitration board erred by finding that employers who operate “dangerous workplaces” (in which there is a risk of an accident with catastrophic consequences) must demonstrate a history of alcohol-related incidents to justify random alcohol testing. It suggested that if a workplace is dangerous, a program of random alcohol testing by breathalyzer that applies only to safety-sensitive positions is reasonable.

This is a significant judgment that is far more tolerant of random testing for current impairment than Arbitrator Michel Picher’s leading Imperial Oil case from 2007, affirmed by the Ontario Court of Appeal as reasonable in May 2009. The Court noted the Imperial Oil decision, but did not make comment on it in its analysis.

Irving Pulp & Paper, Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30, 2010 NBQB 294.

Information Roundup – 30 September 2010

Here are some recent links you might be interested in:

And for something different, check out the wonderful video below by surf movie director Matt Kleiner. I could tell it was special when I watched it with my one year old, who was mesmerized. Me too. Looks like Matt has a five surf documentary project on the go called Way of the Ocean that will launch this fall with a movie about one of my favorite countries, Australia. Based on the quality of his shorter works the Way of the Ocean movies should be wonderful.

See ya!

Dan

Case Report – Federal Court comments on remedial power to redress PIPEDA violation through corrective order

On September 24th, the Federal Court made the following comment in dismissing a PIPEDA application that sought, among other things, an order requesting correction of a record of personal information:

Section 16 of the Act limits the Court’s remedies of ordering corrective action or notice thereof to an organization’s practices. The type of corrective remedy the Applicant requests is not related to the Respondent organization’s practices. Practices generally mean the organization’s usual business methods or procedures. As a result, the Applicant’s request falls outside the scope of the Court’s remedial power under s. 16 of the Act.

Soup v. Blood Tribe Board of Health, 2010 FC 955.

Case Report – Alberta CA corrects a “hybrid” preservation order

On September 22nd, the Alberta Court of Appeal varied an ex parte order that required defendants in a departing employee case to list and compile information and produce it to the plaintiff as a means of preservation. The Court characterized the order as a “hybrid” preservation order – featuring more than a bare direction to preserve and less than authorization to seize. It held that the order was flawed because it required delivery of records directly to the plaintiff without regard for their relevance and potentially privileged status.

KOS Oilfield Transportation Ltd. v. Mitchell, 2010 ABCA 270 (CanLII).

Case Report – More on proportionality from The Rock’s top court

On September 14th, Chief Justice Green and and Justice White, on behalf of the Newfoundland and Labrador Court of Appeal issued a principled judgment on quashing subpoenas in civil proceedings. On applying the relevance standard, the justices say:

Additionally, even if the material sought can be said to be relevant in this sense, there may be, as Re General Hospital Corporation indicates, other grounds on which a person subpoenaed may be able to quash the subpoena or at least postpone its execution. Aside from issues involving irregularity in issuance, and other grounds of inadmissibility, such as privilege and specific statutory exceptions, most other grounds are a manifestation of the jurisdiction of the court to control an abuse of its process. This involves taking into consideration the interests of the subpoenaed witness as well as the interests of the litigants by looking at the actions, motivations and purposes of the party issuing the subpoena as well as the impact on the person subpoenaed. Insofar as the litigant issuing the subpoena is concerned, the bona fides of the issuer may be inquired into with a view to determining whether the subpoena has been issued for an improper purpose. With respect to the subpoenaed person, the court could inquire into such issues as whether, given the significance of the evidence and the timing of the request for production, the request can be said to work an unnecessary hardship or would be oppressive as to the number, nature or breadth of the documents required, considering the time and expense involved in obtaining the information and the degree of private, personal information involved. This is essentially a balancing exercise, involving the application of the proportionality principle recognized by this Court in Szeto et al v. Field, 2010 NLCA 36 (CanLII), 2010 NLCA 36.

The matter at issue involved a subpoena duces tecum issued to the live-in partner of an individual from whom the applicant was seeking child and spousal support. The applicant sought specific information about the new partner’s financial affairs. The justices held that such information is not necessarily relevant when the quantum of support is in issue. Rather, they said, a more “nuanced” analysis is required:

The Court must consider how and to what extent any of that information may be necessary to resolve the specific support issues as they present themselves in the context of the specific case. Because of the potential impact on the partner’s privacy interests, if that information should be provided, the timing becomes a relevant consideration, as well as whether the information could be obtained in a less intrusive way from another source

In a way, this judgment is a follow-on to the Chief Justice’s exposition on proportionality in the May decision Szeto v. Dwyer, noted in the quote above. Both judgments seem to recognize a that personal privacy should be considered as part of the proportionality analysis.

Carroll (Re); Kent v. Kent 2010 NLCA 53.

Case Report – Arbitrator says vehicle telematics data is not personal information

On August 30, Arbitrator Steeves of British Columbia dismissed a privacy grievance that challenged the implementation of a fleet telematics program. The decision is significant because Arbitrator Steeves dismissed the grievance before balancing interests, based on a finding that the telematics data collected by the employer was not personal information in the context. He explained:

It is true that the data contains information about the stop times of a vehicle and this may also be information about the activities of the driver/employee. However, I agree with the analysis in Nav Canada, supra, that this type of information does not engage the right to privacy of individual employees. It is also true that the Telematics data may lead to decisions by the Employer to discipline employees. There are two responses to this concern. First of all, the data does not provide a complete or reliable picture of the activities of an individual and other information would be required to sustain just cause for discipline (actual cases of discipline will have to be judged on their individual circumstances).

Second, to paraphrase Nav Canada, the possible use of the data to evaluate the performance of employees does not transform the information into personal information under PIPA. The information may have the effect of permitting or leading to the identification of a person and it may assist in a determination as to how he or she has performed his or her task in a given situation. “But the information does not thereby qualify as personal information. It is not about an individual, considering that it does not match the concept of “privacy” and the values that concept is meant to protect. It is non-personal information transmitted by an individual in job-related circumstances” (Nav Canada, supra, paragraph 54, emphasis in original). I note in Nav Canada that the information related to recorded communications of employees and there was no real dispute that the information was about the employees. Therefore, it was more directly applicable to issues of discipline than the information in this case which primarily relates to the operation of company vehicles.

In summary, I am not persuaded that the collection and use of an employee’s name, by itself, is collection and use of information that is “fundamental” to the “dignity and integrity” of the employee (Dyment, supra). Put another way, in the circumstances of this case, the collection of information about the operation of a company vehicle, that also includes the name of the driver of the vehicle, does not transform that data into “personal information” under PIPA. I conclude that the data from the Telematics devices can be considered in the same way as the information obtained from the tachograph in Dominion Dairies, supra. The Employer in this arbitration is entitled to know what its employees are doing when they are working and when they are using company vehicles. This information assists management by providing reliable and objective information to improve the efficiency of the vehicle fleet. The same information is not “about” an individual employee and it may be used as part of Employer investigations of disciplinable offences without violating the privacy of employees. As stated in Nav Canada, supra, information that is transmitted by an individual in job-related circumstances is not information about that individual.

Whether information is “about an individual” is a very contextual question. In this case, the outcome was driven by the nature of the data collected (which could only support general inferences about individuals), the employer’s restriction on personal vehicle use and a conclusion that the employer’s primary purpose for collecting the data related to vehicles and not to individuals. Though the case is therefore fact driven, Arbitrator Steeves’ analysis is strong and adds nicely to the arbitral privacy jurisprudence.

Otis Canada v. International Union of Elevator Constructors, Local 1 (Telematics Device Grievance), [2010] B.C.C.A.A.A. No. 121 (Steeves) (QL).

Information Roundup – 3 September 2010

Here are some links from within the domain:

I’ve been in Halifax for the last couple of week’s on “vacation.” The quotes are necessary because it involved far too much work, but also some awesome surf. Hugo caught his first wave, and Hurricane Danielle brought three days of great surf for Dad (pic below).

Tomorrow’s another story though, as Hurricane Earl is bearing down on Nova Scotia as I write. I’ve been through a couple of Tropical Storms but never a hurricane. Looks like tomorrow morning will probably be sub-hurricane in Halifax, but you never know. I’ve got a car full of gas, lots of water and food and a case of beer. Seanna and fam left this morning, so if we have power I might just get some work done before a late afternoon windsurf. Here’s to hoping everyone stays safe!

Dan