Desert island privacy cases for employment lawyers

I presented at the Law Society of Upper Canada’s “Six Minute Employment Lawyer” conference today. It was a very good honour to be invited to this successful and long-running program. Thanks to the LSUC and also to Co-Chairs Christine Thomlinson (see her firm’s blog here) and Malcom McKillop.

I managed to catch a few presentations from other more senior members of our bar. Other blawgers were also well-represented. It was nice to see Michael Fitzgibbon, Stuart Rudner and Omar HaRedeye, albeit briefly. Omar, if you have a Twitter stream of the event, please link it in a comment below.

I did a presentation called “Desert island cases for employment lawyers.” If you like case lists, check out the slides below. Slides with notes are over at SlideShare.

Developing Your Social Media Policies

I presented “Developing Your Social Media Policies” today at a conference of the Association of Municipal Managers Clerks and Treasurers. It was nice to present together with two officials from the City of Barrie, who highlighted the City’s very progressive (and slick-looking) Facebook Fan page initiative, which you can check out here.

I’ve spoken lots on the subject of workplace law and social media lately, but today was more about policy, and specifically, how to use it to both empower employees and take control of how they speak about matters of corporate interest. Slides are below. Enjoy!

Federal Government Introduces Legislation to Create PIPEDA 2.0

This is the title of a client update that we published today, co-authored by me and my colleague Paul Broad. Here’s our conclusion section on the significance of Bill c-29 to our clients:

Many of the proposed substantive amendments to PIPEDA are changes that would be welcome to organizations regulated by the Act as they clarify ambiguities and address practical issues not contemplated by the original legislation.

Some may argue that PIPEDA has been a “paper tiger” since it came into force. Very few organizations subject to the Act have been compelled to answer a PIPEDA complaint, and far fewer have had to respond to a PIPEDA application in the Federal Court. Some have compared PIPEDA’s status to that of provincial and federal human rights legislation, but it has not given rise to nearly the same impact nor has it been the source of the same degree of operational risk.

Bills C-29 and C-28 could change this. Though the administrative procedure for handling PIPEDA complaints would largely remain the same – indeed, the Commissioner would actually be granted a greater discretion to decline to deal with complaints – the new data breach reporting and notification duties could cause organizations to engage with individuals about matters regulated by PIPEDA in a manner that many have not yet done. This engagement would come with the significant costs of notification. Even more significantly, it would come post-breach, when organizations are vulnerable and large groups of individuals are upset.

Organizations should think about engaging with individuals proactively, before a breach occurs. This includes implementing systems and processes that would allow them to confidently answer the questions that might be asked by individuals who are notified of a data breach. Organizations who can answer those questions may be able to disarm aggravated individuals and avoid, or at least reduce, the chance of irreconcilable conflict.

For the full update, click here.

Case Report – Spoliation remedy granted in favour of bereaved dog owner

On May 21st, the Ontario Superior Court of Justice held that a kennel failed to meet it’s standard of care based on an inference it drew because of a missing record.

The plaintiff brought an action against the kennel after her dog needed to be euthanized shortly after its stay. Her theory was that the kennel should have been more attentive to her dog’s physical deterioration and intervened. The kennel argued that the deterioration occurred rapidly. However, it was hampered in making this argument because it had lost its record of the dog’s care.

The deputy judge did not make an express finding of bad faith, but did note that the owner’s evidence on the loss of the record was was “vague.” The record’s probative value being apparent, he drew an adverse inference and held that its loss “tipped the balance” in favor of the plaintiff on the issue of care.

This case is not earth-shattering, but is a nice scenario for raising the issue about whether negligent or reckless loss of a record is enough to support a spoliation remedy. In light of the Alberta Court of Appeal’s Black & Decker decision, the vague evidence finding was likely essential to the remedial award in this case.

Arnold v. Bekkers Pet Care Inc., [2010] O.J. 2153 (S.C.J.).

Information Roundup – 28 May 2010

Here are some recent tweets within the domain you may find of interest:

It’s been slow going for me here lately, and I apologize for that. Slow blogging and tweeting, ’cause I have a rule that I’ll actually read what I tweet and I’ve been quite busy with some really rewarding files.

The PIPEDA changes are the big news, though I wonder more and more how relevant the statute is if you’re not Facebook and not in the telecom or banking sectors. The Google Apps tweet is interesting too, and I recently had a chance to look a little into Microsoft’s competing Live@Edu product. Seems like the educational institution market for cloud services is real and the battle is well underway.

Hope you’re enjoying the summer!

Dan

Case Report – BCCA says residential safety inspections require a warrant

On May 20th, a five-judge panel of the British Columbia Court of Appeal held that provisions of the British Columbia Safety Standards Act violate section 8 of the Charter to the extent they authorize the warrantless entry and inspection of residential premises for the purpose of inspecting safety risks that may be related to marihuana grow-operations.

The SSA gives safety officers the power to enter premises, including residences, to conduct an inspection provided “there are reasonable grounds to do so.” It also enables local governments to obtain information about hydro accounts that average over 93 kwH per day in a billing cycle to facilitate inspection. The background facts involved an inspection of a 6,800 square foot home with a indoor pool, a sauna/steam room, a hot tub, a greenhouse and central air conditioning. One of the residents testified the house had never been used as a grow-op.

The Court held that an inspection for grow-op related safety hazards is not a typical regulatory inspection. Most significantly, the Court held that the legislation invites a particularly intrusive search of a private residence because the violations under inspection are not easy to find. As stated by the applicants:

Searches under the SSA are intrusive. They involve walking through the entire residence, searching electrical panels, and very involved searches of attic spaces, and crawl spaces. Indeed, the Chambers Judge commented on the level of “thoroughness” of the search when discussing police involvement in same.

The Court also held that a search for residences used as grow-ops is stigmatizing and that obtaining an administrative warrant would not frustrate the objectives of the inspection regime.

Akinstall v. City of Surrey, 2010 BCCA 250.

Managing illegitimate employee expression

I spoke at our client conference today on “managing illegitimate employee expression.” The presentation below starts with the public versus private conduct material I’ve presented on frequently of late, then moves to a topic called “when their expression becomes yours” (on how to structure corporate social media programs) and a topic called “expression by outsiders” (on managing illegal communications targeted at employees and attacking the employer’s own repuation). I hope these are helpful.

Case Report – Court opines on authority to waive privilege

Last December 16th, the Nova Scotia Supreme Court held 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 had little trouble finding an intention to waive, noting that the only remaining concern of the Department was over releasing a letter that embodied the opinion and not the opinion itself. More interesting is the Court’s rejection of the Department argument that waiver of privilege held by the provincial crown must be waived by the executive branch. It held that the authority to waive privilege in an opinion prepared for the crown is at least coextensive with the authority to acquire an such an opinion.

In the current edition of Canadian Lawyer magazine the requester’s council says, “I think this decision is the first time that a court has stated that a civil servant can waive privilege over legal advice received within his authority.”

Peach v. Nova Scotia (Transportation and Infrastructure Renewal), 2010 NSSC 91.