Case Report – No interim injunction for employer’s vehicle telematics program

On February 19th, a British Columbia labour arbitrator dismissed a union request for an interim order to restrict an employer from using vehicle telematics to monitor the use of its maintenance fleet.

The employer allowed employees to drive its vehicles home but prohibited personal use. One of its reasons for implementing a telematics program was to support this rule.

Arbitrator John Steeves suggested that the employer’s collection of vehicle use information (trip start, trip end, distance driven, idle time, stop time between trips, gas consumption, speed) was reasonable for the purpose of managing the employment relationship. He also suggested that such information was less sensitive that location information, which the employer did not collect.

This is just an interim award and the reasoning is qualified, so it is not particularly authoritative. However, it is consistent with the relatively permissive existing jurisprudence on fleet monitoring by employers.

Otis Canada Inc. v. International Union of Elevator Constructors, Local 82 (Telematics Devices Grievance), [2010] B.C.C.A.A.A. No. 28 (QL) (Steeves).

(trip start, trip end, distance driven, idle time, stop time between trips, gas consumption, speed)

Case Report – Proprietary rights weigh against non-party production order

On March 18, the Perell J. of the Ontario Superior Court of Justice dismissed a motion for non-party production. In doing so, he made some notable comments about how to weigh the interests of non-parties whose information is sought by parties to litigation.

The plaintiffs in a proposed class action sought production from an automotive sector market research company. Their expert obtained the data under an academic license and used it to prepare an opinion supporting allegations that General Motors, the defendant, had engaged in anti-competitive behavior. The non-party research company claimed that the expert had breached his license, that its reputation was built on independence and that would be harmed if its data was allowed to be used against industry members, including its customer General Motors.

Perell J. dismissed the motion based on a finding that the plaintiffs did not prove necessity. He said, “all they have proven is that they must find another way to prove that they have a way to satisfy some of the criteria for certification.” He went on, however, to consider the fairness component of the test for production and gave heavy recognition to the market research company’s direct proprietary interest in the data. Perell J. said:

I appreciate that the court has the power and has exercised it to take away a non-party’s rights of property and privacy, but, in my opinion, the exercise of the power to compel production must be rare when a non-party wishes to assert its property and privacy rights as opposed to objecting merely on the grounds that the information it has is irrelevant to the proceedings or on the grounds that it would simply be bothered or inconvenienced by producing the information.

In some cases, a non-party may simply have the property right of possession over such things as banking records, accounting records, medical records, minutes of meetings, contractual documents, deeds and certificates of ownership, etc., and in those instances a court may be more ready to exercise its power, but in the case at bar, JATO has valuable proprietary rights that go beyond possession and rather the property being sought is its stock in trade and its forced sale of its products may harm JATO’s goodwill.

The last paragraph is more likely about the distinction between information with commercial value and information with operational value than a comment on the ability to access non-party records that one possesses on behalf of others who have a personal privacy interest in the records.

Tetefsky v. General Motors Corp., 2010 ONSC 1675 (CanLII).

Ontario’s new civil rules – Now that it’s your procedure, what are you going to do about it?

I’d like to thank LexisNexis Litigation Services for the opportunity to speak at its Breakfast Bytes seminar on e-discovery and the new Ontario rules. I did my best to provide an inspirational message on the new Rules and Pamela Fontaine Peters of Micrapol did a great practical presentation on the ins and outs of the e-discovery process. My slides are below, with an annotated version available at SlideShare. Enjoy!

Case Report – Production favoured over privacy interests in two orders relating to Air France crash litigation

The Ontario Superior Court of Justice has issued two production-related decisions in litigation flowing from the 2005 Air France crash in Toronto. On December 12th of last year, it held that the Transportation Safety Board should produce Air France’s cockpit voice recorder. On January 14th, it ordered Air France to produce relevant medical records and an internal investigation report.

Strathy J. issued the cockpit voice recorder decision. He held that production was warranted despite the statutory privilege for “on-board recordings” in section 28 of the Transportation Safety Board Act. This privilege is based on a need to protect pilot privacy and a need to encourage free communication between pilots, both necessary given that continuous voice recording is invasive. Strathy J. held that, in the circumstances, these interests did not outweigh the public interest in the “integrity of the judicial fact-finding process and the reliability of the evidence before the court.” He stressed that the cockpit voice recorder evidence was highly relevant, probative and reliable and that the pilots’ remaining privacy interest was minimal given their pre-crash communications were fully probed by the TSB and discussed publicly in its accident report.

Master Brott issued the second production-related decision. She rejected Air France’s argument that that production of a captain’s medical records should not be ordered given strict French privacy laws and because Air France had produced a certificate of medical fitness. She held that the captain was a party to the action, that “Medical records in France and Ontario belong to the patient” and that the records were relevant in light of the pleadings. Master Brott also rejected an argument that an internal investigation report prepared by Air France as a matter of due diligence was immune from production on account of case-by-case privilege.

Société Air France v. Greater Toronto Airports Authority, 2009 CanLII 69321 (ON S.C.).

Société Air France v. Greater Toronto Airports Authority et al, 2010 ONSC 432 (CanLII).

Third Circuit student speech cases illustrate struggle to characterize communication through social media

This is a lengthy post about the two recent student speech decisions of the United States Third Circuit Court of Appeals – Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. The Court reached the opposite conclusion in each case, though both dealt with sanctions imposed by school boards for similar “misuse” of social media. These conflicting judgements illustrate a dialogue about whether to recognize the unique impact of harmful social media use by students.

Layshock – Physical remoteness prevails over intangible connections to the school

In Layshock, on February 4th, the Court affirmed a student’s successful First Amendment claim and rejected a school board’s argument for an exception to the “material and substantial disruption” test for enjoining student speech.

Layshock argued that he was protected by the First Amendment in creating a MySpace “parody profile” of his principal. He created the website outside of school hours using a home computer, but used a picture of the principal that he copied from a board website. The profile included various assertions about the principal regarding drinking, use of drugs and use of prostitutes. It is debatable whether Layshock’s communications were defamatory given their context, but they were vulgar and the principal testified to feeling demoralized and degraded. The judgement says word of the profile “spread like wildfire” and led to the posting of two other similar sites. The board issued a penalty that included a ten day suspension.

On appeal, the board argued that the speech itself (apart from its effect) deserved sanction because it was vulgar, harassing and directed at the school community. It faced two challenges. First, the link to the board’s interests was very intangible; aside from the copying of the picture, Layshock’s activity was clearly situated outside of the school and only linked to the school by virtue Layshock’s intent. Second, the board effectively argued for an exception to the fundamental American rule on student speech from Tinker v. Des Moines Indep. Cmty. Sch. Dist. The rule in Tinker establishes that a school board cannot enjoin student expression that does not “materially and substantially disrupt the work and discipline of the school.” The United States Supreme Court has found exceptions to Tinker, including one that permits schools to sanction vulgar expression in the name of encouraging the “fundamental values of ‘habits and manners of civility’.” The question in Layshock, however, was whether this exception could be rightly applied to conduct so physically remote from the school.

The Court was clearly uncomfortable in departing from the rule in Tinker. It said:

As noted earlier, the District’s January letter to the Layshocks advising them of Justin’s suspension reads, in relevant part, that it was punishing Justin because: “Justin admitted prior to the informal hearing that he created a profile about Mr. Trosch.” Although the letter also mentions disruption, the District does not now challenge the district court’s finding that Justin’s conduct did not result in any substantial disruption. Moreover, when pressed at oral argument, counsel for the School District conceded that the District was relying solely on the fact that Justin created the profile of Trosch. We have found no authority that would support punishment for creating such a profile unless it results in foreseeable and substantial disruption of school.

Had the board successfully attacked the lower court’s finding on disruption based on evidence about the impact of Layshock’s expression on the principal himself, the outcome would have differed. As for the exception to Tinker for vulgar and uncivil expression, the Court held that school boards have no business in sanctioning vulgar and uncivil expression outside of the school. Though it acknowledged that a school is not bounded by “bricks and mortar surrounding the school yard” it said:

It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in using his grandmother’s computer while at his grandmother’s house would create just such a precedent and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of free expression.

By this statement, the Court suggests that student expression published through social media should be treated as private and should not be deemed to be associated with any particular school-related harms.

Blue Mountain – Majority keeps with Tinker but recognizes unique harms that flow from misuse of social media

In Blue Mountain, also issued on February 4th, a 2-1 majority of the Court reached the opposite conclusion to the Layshock panel after affirming a finding that a school board had met the material and substantial disruption test from Tinker. Though the majority paid heed to Tinker, it made some very broad statements about the unique harms that flow from misuse of social media.

The facts in Blue Mountain were remarkably similar to those in Layshock. The board suspended J.S. and K.L., two eighth grade girls, for posting a MySpace profile that parodied their principal. The site did not name the principal, but included his picture (taken by the girls from the school’s website) and asserted that he was a sex addict and pedophile. The principal, who testified that he felt upset, angry and hurt, investigated himself and then suspended J.S. and K.L. for ten days.

The majority made clear that it was deciding a different question than decided the same day in Layshock: “We decline today to decide whether a school official may discipline a student for her lewd, vulgar or offensive off-campus speech that has an effect on-campus because we conclude that the profile at issue, though created off-campus, falls within the realm of student speech subject to regulation under Tinker.” It held that the Tinker rule does not prohibit school boards from enjoining conduct that causes reasonably foreseeable harms and, in the circumstances, held that the board could act to prevent a foreseeable deterioration in school discipline.

Unlike the panel in Layshock, the majority in Blue Mountain recognized that J.S. and K.L.’s off-campus expression was harmful by its very nature:

The girls embarrassed, belittled, and possibly defamed McGonigle. They created the profile not as a personal, private, or anonymous expression of frustration or anger, but as a public means of humiliating McGonigle before those who knew him in the context of his role as Middle School principal…

Undoubtedly, students have made fun of or made distasteful jokes about school officials, free from the consequences of school punishment, either out-of-earshot or outside the school context since the advent of our modern educational system. However, due to the technological advances of the Internet, J.S. and K.L. created a profile that could be, and in fact was, viewed by at least twenty-two members of the Middle School community within a matter of days…

We thus cannot overlook the context of the lewd and vulgar language contained in the profile, especially in light of the inherent potential of the Internet to allow rapid dissemination of information. Accordingly, J.S.’s argument for a strict application of Tinker, limited to the physical boundaries of school campuses, is unavailing.Instead, we hold that off campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.

These statements are very broad. Though the majority respects the Tinker framework, it establishes a strong basis for a presumed disruption of school activity. In doing so, the majority accepts the very argument rejected by the panel in Layshock.

Conclusion

Commentators have questioned whether the conflicting rulings are justified based on the facts. In my view they are not, and the two awards illustrate a very live and significant debate about how to characterize online student expression.

Tinker aside, boards in Canada and the United States have been given a relatively broad license to control student activity within the school. Civil libertarians would like to sustain a relatively hard in-school versus out-of-school distinction because the distinction allows for free expression on a range of matters outside of the school and in private. The question, though, is whether it is proper to apply a hard distinction in assessing online student expression of the kind demonstrated in Layshock and Blue Mountain.  This question is obviously yet to be resolved.

[Qualification. I practice law in Ontario, Canada and act for educational institutions. This is a comment and not a legal opinion and I am not holding myself out as qualified to practice in matters related to American law.]

Case Report – Order to attend assessment following employee’s aggressive outburst not discriminatory

Yesterday, the Court of Appeal for the Yukon Territory affirmed a decision of a Yukon Human Rights Board of Adjudication. The Board had held that an employer did not discriminate against an employee with a bipolar condition by suspending him pending a medical assessment. It held that the employer ordered the assessment based on an observation of objectively concerning behavior rather than on any stereotypical assumptions about the employee’s disability:

Whether Mr. March’s conduct was disruptive and inappropriate or not was a question of fact. The evidentiary facts were largely undisputed and the primary task of the Board was to resolve the conflicting interpretations and decide whether Mr. March’s conduct was disruptive and inappropriate. The issue involved an individualized assessment of particular facts. The Board heard the evidence and concluded that Mr. March’s conduct was disruptive and inappropriate and the respondents acted reasonably in the circumstances in removing him from the workplace pending a medical assessment. The action taken was temporary and responsive to the disruptive conduct and not an arbitrary reaction attributable to a discriminatory stereotyping of his disability. Instead, it was directed to ascertaining the cause of his conduct, and deciding how it should be addressed.

Though employers do have a general right to request medical information in circumstances similar to those demonstrated in this case, the employer here had accommodated the employee for years and further helped its case by making a genuine expression of continued support for the employee at the same time as making its direction.

March v. Yukon (Human Rights Board of Adjudication), 2010 YKCA 3.

Case Report – Court addresses rule on redacting information from relevant documents

On March 8th, the Ontario Superior Court of Justice issued an endorsement that outlined the rule on when relevant information may be redacted from producible records. It said, “The whole of a relevant document must be produced except to the extent it contains information that would cause significant harm to the producing party or would infringe public interests deserving of protection.” And also, “Irrelevance alone is not a sufficient ground on which to redact portions of a document. The party seeking to do so bears the onus of establishing that redaction is necessary to protect an important interest.”

McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII).

Case Report – BCCA says aerial surveillance by telphoto zoom lens not a search

Today, the British Columbia Court of Appeal held that the police did not violate section 8 of the Charter by conducting aerial surveillance of a rural property from in excess of 1000 feet by using a digital camera equipped with a telephoto lens.

The police obtained  a search warrant based partly on the surveillance evidence. The pictures showed plants of a “distinctive green” colour through the opaque walls of a number of greenhouses. The grounds for the search warrant were also based on the location of the greenhouses on the rural property, which suggested they were meant to be obscured from public view, and a variety of observations taken from an adjacent property.

The Court held there was no search that engaged section 8 of the Charter. In doing so, it said:

The greenhouses were visible from the air and anyone in an airplane, helicopter, or other aerial device would have been able to see what the police observed and photographed. Anyone using binoculars would have seen what the police saw and the zoom lens employed by the police is readily available at retail stores. It is not advanced or unique technology and did not permit the police to determine what activities were taking place inside the greenhouses that were not otherwise observable given the translucent walls of the structures. Additionally, the police were able to see a marihuana plant through a greenhouse door left open. Obviously, the plant was thus in public view.

The Court also held that the police did not need to announce their presence on the property given it was a large rural property. It said, “To require the police to first alert persons working in or around the greenhouses was, as the trial judge accepted, impractical and an invitation to those present to flee, destroy evidence, or set up an ambush.”

R. v. Kwiatkowski, 2010 BCCA 124.

Case Report – Contact with defendant’s former employee not grounds to disqualify plaintiff counsel

On February 24th, the Ontario Superior Court of Justice declined to disqualify plaintiff counsel for its contact with a former employee of the defendant who the defendant alleged had received related confidential information in the context of a solicitor-client relationship while employed.

Plaintiff counsel represented various adult entertainment establishments in an action against the Toronto Police Services Board for matters arising out of a large scale investigation that was led by O’Mara. It claimed the TPSB was vicariously liable for O’Mara’s conduct.

In 2001, right around his retirement, O’Mara met with lawyers for the TPSB to discuss his evidence. Sometime later O’Mara contacted plaintiff counsel about providing them with private investigation services. In 2003 plaintiff counsel retained O’Mara on two files unrelated to the action against TPSB in which he prepared affidavits. It’s not clear why, but the plaintiffs produced the affidavits in the TPSB action, at which point the defendants objected to plaintiff counsel’s contact with O’Mara.

The Court held that disqualification was not justified because O’Mara did not receive confidential information attributable to a solicitor-client relationship. In doing so, it declined to apply a rebuttable presumption that such information was communicated because O’Mara did not meet with the TPSB as a client and, unlike in the Court of Appeal’s recent Humber v. Stewart decision, was a neither a potential expert witness nor responsible for giving instructions to counsel as a member of management. It said:

In light of the above, there is no reason to consider that the communications between counsel and O’Mara were other than an ordinary interview with a potential witness to obtain information from the potential witness. The fact that the potential witness was still, at the time, employed with the TPS does not change the nature of the communications. They were part of an interview with a potential witness, and not shown to be of a kind to make it reasonably likely that confidential information would be imparted to Mr. O’Mara.

In obiter, the Court also held that the relationship between O’Mara and plaintiff counsel did not support  a presumption that any information within O’Mara’s knowledge would likely have be misused.

728654 Ontario Inc. (Locomotion Tavern) v. Ontario (Attorney General), 2010 ONSC 1184 (CanLII).

Ontario workplace violence bill and threat assessment take two – the domestic violence provision

I posted yesterday about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers and my theory that it is most significant because it requires good threat assessment processes. The other provision that is getting talk is the so-called “domestic violence provision.” This, in my view, is an even more direct invitation to embrace good threat assessment processes.

Come June 15th, section 32.0.4 of the OHSA will read:

If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This has people asking, “What is domestic violence?”

The term “domestic violence” has caused a distraction in my view. It is dangerous because it could lead people to get tied up in a mental knot about the variety of violence associated with a threat rather than the threat itself. While I don’t mean to discount the problem of domestic violence in the workplace and the special challenges it raises, the answer to the question above does not likely affect employer duties.

This is because it is not plausible that a threat of physical injury from violence simpliciter deserves any less management than a threat of physical injury from domestic violence. The provision therefore could have read:

If an employer becomes aware, or ought reasonably to be aware, that violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This would have been very nice language – subject to interpretation but at least clear in its intent. And if the legislature did want to signal to employers that the risk of domestic violence in the workplace is no less their responsibility to address than the risk of violence simplicter in the workplace, it could have included a deeming provision specifying that “violence” includes “domestic violence.” In my view, the duties arising from such language would have been the same as those to be confirmed by the Bill 168 provisions come June.

This brings us back to threat assessment. Distracting language aside, section 32.0.4 speaks about acting based on facts that ought reasonably be known. It signals that employers should (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time. These basic prescriptions go for all kinds of violence, domestic and otherwise.