Case Report – Majority of Ontario court holds firm on rule for taping defence medicals

On April 21st, a 3-2 majority of the Ontario Court of Appeal held that it was not ready to change an established rule that demands orders for the audio recording of defence medical examinations to be based on a reason particular to the facts of the case.

The plaintiff in a claim arising out of an automobile accident sought an order imposing a condition that a defence medical be recorded. The request was supported by an affidavit from counsel that alleged systemic bias amongst defence medical experts and a systemic concern about inaccurate reporting of plaintiff statements. The affidavit included evidence of four cases of alleged inappropriate conduct. The plaintiff also raised concerns acknowledged in Justice Osborne’s report on civil justice reform and Justice Goudge’s report on pediatric forensic pathology. She did not raise any concern about the expert proposed by the defence.

Justice Armstrong wrote for a three judge majority. He held that the Court of Appeal’s 1992 judgment in Bellamy v. Johnson established that orders to record medical examinations must be based on the facts of a specific case. Though acknowledging concerns about systemic unfairness, Justice Armstrong held that the evidentiary record before the Court was insufficient to establish a new rule.

Justice Lang wrote for the two judge minority. She questioned the meaning of Bellamy stated by the majority, but nonetheless held that a requirement to prove a case-specific basis was overly-restrictive. Justice Lang said that orders for a defence medical should include a condition permitting the plaintiff to record the examination unless a motion judge is persuade (by the defence) that the recording would compromise the examiner’s ability to learn the plaintiff’s case or about his or her condition.

Adams v. Cook, 2010 ONCA 293.

Case Report – Strong deference to search process demonstrated in “e-FOI” case

On March 30th, the Information and Privacy Commissioner/Ontario upheld the reasonableness of an institution’s search for responsive e-mails. The IPC held that searching for e-mails held by a key custodian alone was reasonable and sufficient: “…it is not unreasonable that the University’s search for records, both in electronic and hardcopy format, would begin and end in the Office of the Dean, for which responsive records were either sent and received.” It made this finding despite a request to “retrieve and search for any emails which may have been deleted” and and a finding based on the institution’s backup e-mail backup policy that deleted e-mails would not likely exist.

As with this recent Alberta Court of Queen’s bench decision, this order demonstrates a significant degree of deference to a process chosen to search for electronic records. These two decisions and others could be evidence of a general approach, though I’m yet to read any dicta in Canadian FOI jurisprudence that expressly addresses the need to maintain balance in light of the inflationary potential associated with the search and retrieval of electronic records.

Order PO-2880, 2010 CanLII 15935 (ON I.P.C.).

Case Report – BCCA orders media access to “crime boss” video post trial

On April 6th, a majority of the British Columbia Court of Appeal held that a trial judge erred by denying the media post-trial access to a videotape exhibit adduced in a criminal trial. It ordered the tape to be released with measures to be taken to protect the identities of undercover RCMP officers and others who where shown on the tape.

The video showed a confession that the RCMP extracted by use of a scenario in which an accused is asked to confess past crimes to a “crime boss.” It showed three undercover officers and identified them by their real first names. The video was shown in open court subject to a publication ban that restricted identifying the officers. Shortly after the accused was convicted, the applicants requested access to the videotape and a transcript of the same, but the trial judge denied access on the strength of an affidavit that established a likelihood of harm to the undercover officers.

Madam Justice Newbury held that the trial judge erred by balancing the benefit to be gained by releasing a video in a substantially modified form (to protect the officers’ identities) against the safety and privacy interests at stake, in effect reading out the “necessity” requirement for restrictive order endorsed by the Supreme Court of Canada in Dagenais/Mentuck. Mr. Justice Hall concurred and Mr. Justice Chiasson dissented.

Note that Madam Justice Newbury justified a permanent restriction on the publication of the officers’ identities by reference to the “perpetual availability of information on the internet.”

Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 (CanLII).

Case Report – Costs award for “scandalous” pursuit of Anton Piller

On March 26th, the Saskatchewan Court of Queen’s Bench made a significant costs order against a group of plaintiffs for bringing an application for an Anton Piller order and resisting an order to set it aside, both in a manner it deemed to be “scandalous.” The order fully indemnified two separately represented groups of defendants for costs from the date of execution of the Anton Piller to the date of the hearing of the defendants’ motion to set aside. The Court discounted the costs it awarded to a third group of jointly-represented defendants because it held the costs actually incurred were excessive. For a summary of decision to set aside the Anton Piller, see here.

Agracity v. Skinner, 2010 SKQB 123 (CanLII).

Case Report – Court says duty to preserve doesn’t spring from gravity of potential dispute

On March 30th, the British Columbia Supreme Court held that a gaming company had no duty to preserve betting slips redeemed by an individual to whom it denied a prize claim for over $6.5 million.

The plaintiff claimed he submitted 20 to 25 betting slips into the gaming company’s redemption machine, and that the machine retained five to 10 tickets as winning slips. The machine then produced a voucher for $6.5 million, which the gaming company would not pay based on a claim that the voucher was produced in error. It based this conclusion on an examination of a winning slip that was stamped by the machine as associated with a $6.5 million win but that did not reveal a winning wager at all. At the time it denied a payout, the gaming company also denied the plaintiff’s request to see his other slips that were retained by the machine. The gaming company destroyed these slips in the ordinary course of its business a week or two later, well before the plaintiff threatened or commenced an action.

The Court held that the gaming company had no duty to preserve when it destroyed the records. It said:

While perhaps it may have been prudent for the defendants to have contacted Mr. Patzer before the betting slips were destroyed, I cannot accede to Mr. Laxton’s submission that they had a positive duty to do so. I appreciate that the error of issuing a cash voucher for such a large amount of money is significant. I accept that Mr. Patzer asked to see his betting slips on November 6, 2004 but he did not follow up this request further. More importantly, if Mr. Patzer was not satisfied with the explanation he had been given, he should have advised the defendants. They would then have been at least put on notice that the matter had not been put to rest.

…

Here, the slips were destroyed in the ordinary course of business before the defendants were aware that Mr. Patzer was considering litigation or even challenging their explanation for the error. While it is unfortunate that they were destroyed so soon after the event, the defendants did not intentionally destroy the winning betting slips in an effort to suppress the truth. Accordingly, there is no basis to apply the doctrine of spoliation.

As there is no common law duty to preserve property which may possibly be required for evidentiary purposes and given these findings, the plaintiff’s claim based on the defendants’ destruction of the betting slips must fail.

Patzer v. Hastings Entertainment Inc., 2010 BCSC 236 (CanLII).

Case Report – Another e-FOI case out of Alberta

On January 14th, the Alberta Court of Queen’s Bench quashed part of an OIPC order about the reasonableness of a search for electronically stored records.

The Court quashed an order requiring the University of Alberta to restore and search e-mail server backup tapes. It held the OIPC erred by making this order without considering the restriction on the obligation to create records that require an institution to use more than its normal “computer hardware and software and technical expertise” or cause “unreasonable interference” with its operation. As in Edmonton Police Services from last year, the Court seemed to assume that restoring compressed e-mails from a backup tape involves “creating” a record.

The Court also upheld the OIPC’s order to search again. In doing so, it affirmed an OIPC finding that it was unreasonable to search for “complaints” related to the requester by only searching e-mails of the two administrators who invited feedback and not the department members from whom feedback was solicited. The Court commented that a search of the recipients’ e-mails only was insufficient given the (unresolved) potential for deletion of e-mails:

The University, on the other hand, insists it was reasonable to restrict the scope of the search to just those two persons because they were the people who would have been aware of the complaints and would have received them. While the Chair and Associate Chair were the most likely recipients of complaints, it was reasonable to consider whether others might have responsive records, including the senders of any complaints. This was particularly so given the University’s evidence that the Chair and Associate Chair had no standard practice in regards to retention and deletion of records, gave no evidence as to whether they had deleted any email, and gave no evidence that they did not recall receiving any written complaints.

The Court also affirmed an order requiring the University to apply broader search terms in searching again on the basis that a keyword search based on the requester’s first or last name only was unreasonable.

Hat tip to Linda MacKay-Panos at ABlawg. See here for Linda’s summary.

University of Alberta v. Alberta (Information and Privacy Commissioner), 2010 ABQB 89 (CanLII).

Information Roundup – 4 April 2010

Here are some recent tweets within the domain:

Take note that I’ve added a link to Michael Power’s new “Dot Indicia” privacy and information security blog. Mike is very knowledgeable and thus far is demonstrating it in his posts. He’s also originally from Nova Scotia, a good thing in my books.

Welcome to the blawgosphere Mike!

Case Report – Court won’t order production of bank records to help judgement creditor

On March 24th, the Ontario Superior Court of Justice declined to order the production of bank records so the applicant, a judgment creditor, could initiate a Sheriff’s sale.

The applicant held a first mortgage on the debtor’s home, which he owned and mortgaged jointly with an estranged wife who continued to live in the home. The respondent bank held a second mortgage.

The applicant filed a writ of execution after receiving a judgement and later sought to initiate a sale of the home. The Sheriff would not do so without documentation showing the debtor’s equity in the home, so the applicant asked the respondent bank for documentation. When the bank refused, the applicant applied for production. It argued that an order was necessary because it could not find the debtor to serve him with a judgement debtor notice of examination, and even if it could find the debtor, that it was more efficient to simply order production of the bank statements.

The Court held that the applicant was not entitled to the documentation under the Mortgages Act and declined to order production based on its equitable jurisdiction. It held that the bank was not implicated in a wrongdoing in the sense that banks often are when individuals flow monies obtained by fraud through bank accounts. Moreover, it held that the order was not necessary given the applicant could examine the debtor’s wife, who had a privacy interest in her (joint) bank records and an important interest in the property at risk of sale. Instead, the Court granted leave to add the debtor’s wife as a respondent so it could seek an order, to be made on notice, for her examination.

Citi Cards Canada v. Pleasance, 2010 ONSC 1175.

Case Report – Div. Court issues significant decision on Ontario FOI exclusions

On March 26th the Divisional Court issued a significant decision on the Information Privacy Commissioner/Ontario’s jurisdiction to oversee claims that records are excluded from public access.

The requester asked the Ministry of the Attorney-General for access to records concerning the handling and progress of a high-profile prosecution. The MAG claimed the records requested were excluded by section 65(5.2) of FIPPA, which states, “This Act does not apply to records relating to a prosecution if all proceedings in respect of the prosecution have not been completed.”

The IPC routinely asks for the records subject to both exclusion and exemption claims, though this practice may be in some flux with respect records claimed to be subject to solicitor-client privilege since the Supreme Court of Canada’s Blood Tribe decision. In this case, when the MAG did not produce records voluntarily, the IPC ordered it to: (1) produce responsive records except those “clearly” subject to a solicitor-client privilege claim; (2) make exemption claims in the alternative to its exclusion claim; (3) prepare and produce an index of records; and (4) provide an affidavit in support of solicitor-client privilege claims.

Though the order was an interim order, the Court decided to hear the MAG application for judicial review. It held that the IPC erred in interpreting the scope of 65(5.2) and made an unreasonable order.

The section 65(5.2) decision is particularly significant given the Court’s finding that IPC erred in reading the words “relating to” as requiring a “substantial connection.” It said:

The meaning of the statutory words “relating to” is clear when the words are read in their grammatical and ordinary sense. There is no need to incorporate complex requirements for its application, which are inconsistent with the plain unambiguous meaning of the words of the statute.

The Adjudicator’s interpretation of the phrase “relating to” is also discordant with the intention of the Legislature. There are no pragmatic or policy reasons to impute a substantial connection requirement and depart from reading the words in their grammatical and ordinary sense in the context of the Act.

The IPC also applies the substantial connection test in adjudicating the employment records and teaching and research records exclusions. Though the language of these exclusions is slightly different than the language of section 65(5.2), the Court’s reasoning casts doubt on the use of the substantial connection test across-the-board.

The Court did not make a finding on whether IPC has the power to order the production of records that are claimed to be excluded nor did it opine on the scope of any such jurisdiction. It simply held that the IPC’s order was unreasonable because it would interfere with the interests the section 65(5.2) exclusion was intended to protect. Its disposition, however, suggests that looking at records claimed to be excluded is not necessary. Rather than send the matter back to the IPC, the Court simply declared that the request was for excluded records and could be brought back on when the underlying prosecution is complete. It did so on the face of the request.

Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII).

Case Report – Arbitrator says relevant video surveillance evidence is admissible… period

On January 26th, Saskatchewan Labour Arbitrator William Hood rejected a union argument to exclude surveillance evidence recorded by an in-plant video surveillance system. In doing so, he made the following broad statement on the admissibility of unlawfully obtained evidence at labour arbitration:

Video evidence, even if improperly obtained, is admissible. As a general rule, subject to circumstances where the Canadian Charter of Rights and Freedom [sic] apply, the test for admissibility of evidence in a court of law is relevance and if admissible, the court is not concerned with how the evidence was obtained (see R. v. Wray, [1971] S.C.R. 272).

Not all Canadian labour arbitrators apply this traditional rule of evidence.

Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. McKesson Canada Corp. (Birch Grievance), [2010] S.L.A.A. No. 1 (QL) (Hood).