Case Report – Arbitrator allows challenge to random alcohol testing

On November 16, 2009, Arbitrator Veniot allowed a grievance that challenged the use of random alcohol testing for safety sensitive positions at a New Brunswick pulp mill. He found neither the Ontario Court of Appeal’s blessing of random alcohol testing in Entrop nor Arbitrator Picher’s broad denouncement of random alcohol testing in his 2006 Imperial Oil decision to be governing. Rather, he stressed that each case must be decided in its context, with Picher’s “Canadian Model” operating except where the evidence indicates otherwise.

On the facts, Arbitrator Veniot held the employer had only proven gains likely to “run from uncertain to exist at all to minimal at best.” He therefore upheld the grievance, declared the random testing provision of the employer’s drug and alcohol policy to be unreasonable and ordered it to be set aside.

Re Irving Pulp and Paper, Ltd. and Communications, Energy and Paperworkers Union, Local 30 (Day), [2009] N.B.L.A.A. No. 28 (QL) (Veniot).

Case Report – Privacy breach as a basis for enjoining customer solicitation?

On May 3rd, the Ontario Superior Court of Justice dismissed a motion for an injunction to restrain a departing investment advisor from soliciting his former clients. It is notable because plaintiff counsel claimed it would suffer irreparable harm to its reputation because the defendant’s use of its customer list would place it in breach of PIPEDA:

MD does not, however, rely solely upon the number of clients and the value of the assets administered by MD. MD submits the issue is much larger. MD has, in a written document given to each of its clients, committed to hold all personal information “in strict confidence” and has promised “in no event” to release the information “to any third party without” the client’s written permission or an order of a Court requiring its release.

MD’s position is Campbell’s actions place MD in a position where it may have breached that commitment. MD submits such a breach – or even the allegation of breach – damages MD’s reputation and creates an immeasurable risk MD’s clients will lose and potential clients will never have the confidence necessary to entrust management of their finances to MD. That argument found favour in MD Management Ltd. v. Dhut, [2004] B.C.J. No. 764 (S.C.) and a time limited injunction was granted restraining the former IA from communicating directly with anyone who was a client of MD during his tenure.

The Court did not give this argument much, if any, weight given there was no evidence that any of the plaintiff’s clients had filed a PIPEDA complaint. It dismissed the motion on a full application of the RJR MacDonald test.

Departing investment advisor cases are not rare, and given the rather unique relationship between investment advisor, investment firm and client, at least one court (the BCCA in 2007) has recognized a special public interest in allowing departing advisors to contact former clients so they can choose whether move their business. PIPEDA’s strict consent rule does not account for this interest. And though there may be some very good factual disputes about whether a group of clients have implicitly consented to allow a departing advisor to take and use their contact information, there is likely not much to stop an investment firm from strengthening its promises to keep contact information confidential as a means of guarding against an implicit consent argument and better handcuffing its departing advisors.

Timothy William Campbell v. BMO Nesbitt Burns Inc., 2010 ONSC 2315 (CanLII).

Key issues in workplace privacy presentation

I spent most of the day today at the Canadian Institute’s Meeting Your Privacy Obligations conference. It was a very good show, and I managed to catch great presentations by Frank Work, Robin Gould-Soil (of TD Financial Group) and David Fraser. I did a “hot issues” style presentation on workplace privacy. Two thirds of the content is refined from the slides I posted yesterday, but there’s an additional part on background checks. Notes are in the slides over at Slideshare.

Social media and employee privacy presentation

I presented at Insight’s Social Media – Risks & Rewards conference this morning on two narrow issues related to employee use of social media technology and privacy – monitoring workplace systems for misuse (a favorite, as you know) and the right of an employer to control employee “off duty” publication. The audience seemed sophisticated, and I regret that I couldn’t stay. Thanks to the audience for the discussion and the organizers for the invite. Slides are below, with slides and notes over at Slideshare.

Case Report – BCCA dismisses background check action

On May 5th, the British Columbia Court of Appeal dismissed a $520 million action against the province and a Ministry of Children and Family Development employee for alleged improprieties in answering a background check made by a funded agency.

The Court held that the lower court should have disposed of the action under British Columbia’s summary trial rule. It held that the Ministry employee was not in sufficient proximity to the plaintiff given her conflicting statutory duty to children and family members. It also held there was no evidence of malice to support a misfeasance in public office claim and to negate a qualified privilege defence to a defamation claim.

Last May the Court ordered a British Columbia FIPPA complaint arising out of the same facts back to the Information and Privacy Commissioner of British Columbia to address whether the Ministry breached the accuracy provision of the Act. (Summary here.) It appears that the OPIC has not yet issued a finding.

Harrison v. British Columbia (Children and Family Development), 2010 BCCA 220.

Case Report – SCC says confidentiality promises made in newsgathering only subject to case-by-case privilege

Earlier this morning, the Supreme Court of Canada affirmed the validity of a search warrant and assistance order that was served on the National Post in 2002 and that required it to provide the RCMP with a document and envelope received from a confidential informant. Though the panel wrote three separate judgements, all nine judges held that privilege claims made by newsgatherers to protect information received in confidence should be justified on a case-by-case basis.

Background

In 2001, Andrew McIntosh of the Post received a document that appeared to be a Business Development Bank of Canada loan authorization for a $600,000 loan to the Auberge Grand-Mere. The document listed a $23,000 debt to “JAC Consultants,” a holding company of former Prime Minister Jean Chretien. The auberge was in Mr. Chretien’s home riding, and he had previously admitted to contacting the BDB’s president to urge him to approve the loan.

McIntosh circulated copies of the document to the BDBC, to the Prime Minister’s Office and to Mr. Chretien personally the course of his investigation. Based on a comparison between its file copy of the document and what McIntosh provided, the BDBC complained to the RCMP that the document was a forgery. As part of its investigation, the RCMP sought the document and envelope. Although the allegedly forged communication had been widely distributed, it believed that document and envelope might contain fingerprints and DNA that would help it identity the sender. On an ex parte basis, the RCMP obtained a search warrant and an assistance order that became the matter of the appeal.

The Post resisted because McIntosh had promised anonymity to his informant (who said he simply was passing the documents on) and (so it appears) because he questioned the whether the disclosure would actually help the RCMP’s pursuit of the wrongdoer.

The Post relied on the common law of privilege, section 2(b) of the Charter, and at the Supreme Court of Canada, section 8 of the Charter. The Canadian Civil Liberties Association and the British Columbia Civil Liberties Association, among others, intervened in support of the Post at the Supreme Court of Canada.

Majority judgement – Serious crimes need to be investigated

Binnie J. wrote for the seven judge majority that dismissed the Post’s appeal from the Ontario Court of Appeal.

Though the majority recognized a public interest in news gathering through confidential sources, it rejected arguments made by the CCLA and the BCCLA for special protected status in the form of Charter-based immunity and a common law class privilege. It held that such status would be too much a blow to the administration of justice and, notably, personal privacy. It was particularly concerned that the scope of the requested privilege would be hard to define in a manner that reflected the true public interest at stake given both the variety of means used to newsgather and the range of persons who now engage in newsgathering:

The position of the CCLA and the BCCLA is built on the premise that protection of confidential sources should be treated as if it were an enumerated Charter right or freedom. But this is not so. What is protected by s. 2(b) is freedom of expression. News gathering, while not specifically mentioned in the text of s. 2(b) is implicit in news publication, but there are many techniques of news gathering and it carries the argument too far, in my view, to suggest that each of those news gathering techniques (including reliance on secret sources) should itself be regarded as entrenched in the Constitution. Chequebook journalism is also a routine method of gathering the news, but few would suggest that this too should be constitutionalized. Journalists are quick to use long-range microphones, telephoto lenses or electronic means to hear and see what is intended to be kept private (as in the case of then Finance Minister Marc Lalonde whose budget had to be amended because a cameraman captured parts of what were intended to be secret budget documents on Mr. Lalonde’s desk). Such techniques may be important for journalists (who, unlike prosecutors, have to get along without the power of subpoena), but this is not to say that just because they are important that news gathering techniques as such are entrenched in the Constitution,

…

There are cogent objections to the creation of such a “constitutional” immunity. As recently pointed out in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the protection attaching to freedom of expression is not limited to the “traditional media”, but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper. To throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.

…

Journalistic-confidential source privilege has not previously been recognized as a class privilege by our Court (Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572), and has been rejected by courts in other common law jurisdictions with whom we have strong affinities. The reasons are easily stated. First is the immense variety and degrees of professionalism (or the lack of it) of persons who now “gather” and “publish” news said to be based on secret sources. In contrast to the legal profession there is no formal accreditation process to “licence” the practice of journalism, and no professional organization (such as a law society) to regulate its members and attempt to maintain professional standards. Nor, given the scope of activity contemplated as journalism in Grant v. Torstar, could such an organization be readily envisaged.

The CCLA and the BCCLA position may have been undermined by the Post itself, which accepted that a confidential source could be protected by a case-by-case privilege analysis that is informed by the Charter guarantee of freedom of expression and the role of the media. The majority accepted this position, and did so while recognizing that, “The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions.”

The majority also held that the onus to satisfy all four criteria for a case-by-case privilege rests with the media. It articulated various factors relevant to the balancing of interests called for by the fourth criterion and, on the facts, held that the balance weighed in favour of production. The majority gave particular weight to the fact that the search was for physical evidence of a serious alleged crime.

In addition to the privilege finding, the majority also held that the search warrant and assistance order were not unreasonable within the meaning of section 8 of the Charter for reasons I will not describe.

Le Bel J. and Abella J. differ by degree

Le Bel J. concurred with the majority except for one aspect the majority’s section 8 finding; Le Bel J. held that the media ought to have been given notice of the application for a search warrant but that the lack of notice did not render the search unreasonable.

Abella J. dissented. She applied the balancing test to reach a different outcome than the majority. Her approach did not differ from the majority’s in principle, but does suggest a different degree of willingness to allow the media’s investigative process to preempt a law enforcement investigation. The majority said that a denial of criminal involvement that is accepted by the media “is not a sufficient ground to put an end to a serious criminal investigation.” In contrast, Abella J. said, “Where, as here, the journalist has taken credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgement and pause, it seems to me, before trespassing on the confidentiality which is the source of the relationship.” Abella J. also held that the the media ought to have been given notice of the application for a search warrant as required by section 8 of the Charter.

Conclusion

This case will no doubt be the subject of significant comment. My very early and basic thought is that the media claims do seem somewhat undermined by the rise of citizen journalism, as evident most strongly in the lengthy quotes I’ve excerpted above. Last December in Grant v. Torstar the Supreme Court of Canada recognized the impact of blogging, and now Twitter, all the while making claims to special rights based on bare status as a “journalist”  harder to make.

R. v. National Post, 2010 SCC 16.

Case Report – Court says suing message board operator not an easy means to identify anonymous internet users

Yesterday the Divisional Court held that a motions judge erred in requiring the owner/operator of a right-wing internet message board to disclose the identities of eight John Doe defendants who had posted commentary about lawyer Richard Warman.

The case is about whether and when civil rules can be used to identify anonymous internet users without restrictions that are based on countervailing Charter-protected interests such as privacy and freedom of expression. The need to balance interests has been recognized in the test for production of identifying information from non-parties. In this case, the party in custody of the identifying records was a named defendant and subject to a routine duty to produce “all documents relevant to any matter in issue in the action.”

The Court held that the routine production duty did not preclude a balancing of interests and held that the motions judge ought to have considered the following four issues before ordering production (my paraphrase):

  1. whether the unknown alleged wrongdoers had a reasonable expectation of anonymity in the particular circumstances;
  2. whether the plaintiff had established a prima facie case and was acting in good faith;
  3. whether the plaintiff had taken reasonable steps to identify the unknown alleged wrongdoers and had been unable to do so; and
  4. whether the public interests favouring disclosure outweighed the legitimate interests of freedom of expression and right to privacy of the unknown alleged wrongdoers.

The Court held that the prima facie standard of proof is appropriate when the order threatens an individual’s ability to speak anonymously. It also held that notice to unnamed alleged wrongdoers may be required, but that generally little would be added by such a step in defamation proceedings given what is required to prove a prima facie case of defamation.

This case is clearly about the rules for asking a Court to unmask anonymous speakers, though it also raises questions about what other circumstances interests such as privacy may be raised as a basis for restricting the production of relevant records.

Hat tip to Tamir Israel for providing an early copy of  the case.

Warman v. Fournier et al, 2010 ONSC 2126.

Case Report – Court dismisses request to limit production of e-mails

On April 26th, the Newfoundland and Labrador Supreme Court – Trial division dismissed an application to limit production of e-mails.

The defendant (and plaintiff by counterclaim) in a departing employee dispute brought the application. It sought relief from a consent order requiring to search, review and produce e-mails of thirteen custodians based on a list of stipulated terms, including e-mails in active storage and e-mails in archive or backup systems. Having produced some e-mails under the order, the defendant asked for any further production obligations under the order to be terminated and, alternatively, for an order for further production to be based on proven need and/or cost shifting.

The Court was not satisfied that limiting production was warranted based on the defendant’s evidence, which it said “boiled down” to evidence of current efforts and costs and technical difficulties in meeting the order. Its reasoning suggests that the defendant’s evidence of bare cost alone (some of which it questioned) did not impugn the process embodied in the consent order, which it presumed was proportionate and of reasonable quality. The Court did receive evidence that an element of the process was flawed in that a search for the words “Newfoundland” generated a large number of responsive records for one custodian. In response, the Court held this search term was “too broad to be useful” and directed the parties to discuss the matter.

GRI Simulations Inc. v. Oceaneering International Inc., 2010 NLTD 85 (CanLII).

Case Report – Federal Court says OPC can’t demand evidence supporting a privilege claim

On April 20th, the Federal Court issued an order in a PIPEDA application about an access request and a solicitor-client privilege claim made by Air Canada. For the most part, the Court held that Air Canada’s privilege claim was justified. In doing so, it held that the Privacy Commissioner did not have the power to compel Air Canada to justify its claim by filing an affidavit.

Although the burden rests with Air Canada to justify its allegation of privilege, it is this Court, and not the Privacy Commissioner, who is the decision maker. Air Canada could have refused without giving any particulars whatsoever. The Privacy Commissioner would then have had to seek one of the many avenues of redress to this Court which are available to her. In such a case, even if it turned out that Air Canada’s refusal was not capricious, and that the documents were privileged, Air Canada might face serious cost consequences for unnecessarily taking up the Court’s time.

…

Of course, the Privacy Commissioner had the right to inform Air Canada that if it did not persuade her that its assertion was well founded, she would come to this Court, as indeed she has. However, since she could not make a decision, it follows that she could not stipulate the steps Air Canada had to take to satisfy her that the documents were truly privileged.

The remainder of the decision is more driven by facts, though the Court did make a notable finding that an incident report – prepared by employees and forwarded to the company’s legal department as a matter of procedure – was subject to both solicitor-client and litigation privilege. The Court also declined to award damages for the one part of Air Canada’s privilege claim that it did not uphold.

Privacy Commissioner of Canada v. Air Canada, 2010 FC 429 (CanLII).

Information Roundup – 26 April 2010

Here are some links that have caught my attention within the last couple weeks.

There are some good rich legal issues in the links above, including issues in the Quon workplace communication privacy case at the Supreme Court of the United States and the 3rd Circuit student expression case (my summary of the February 4th decisions here). The Gmail outsourcing issue (at least the cross-border transfer part of it) is better described as “vexing” than “rich,” but the Alberta OIPC’s blessing of the University of Alberta’s plan to implement Gmail is significant given Google’s appealing pitch to educational institutions.

What else can I say? Back from a surf trip out east that unfortunately didn’t have a lot of great surf. Feeling invigorated though, and have had a few positive hearing days lately. Guess that means I’m due for a baddy. Better keep on my toes!

Enjoy!

Dan