Information Roundup – 6 September 2009

Here are some links within the domain that you may appreciate.

I’ve started regular blogging at Slaw.ca and am having a great time. It’s a chance to stretch out a little and be creative. Here’s a link to an archive of my posts. Otherwise I’m just carrying on, happy about our expanded family and happy that it’s September, hands down the best month of the year. It also means our fall vacation is coming up. I did manage a brilliant three hour paddle today outside of Hanlan’s Point and right underneath the Canadian International Air Show. But despite the paddle and a fun Hurricane Bill session a couple weeks ago, I need a real surf man. See ya!

Case Report – Arbitrator Kaplan follows Imperial Oil case… says no to random alcohol testing

On August 27th, Arbitrator Bill Kaplan held that an employer breached its collective agreement by implementing random alcohol testing for safety-sensitive positions. The employer attempted to argue that Arbitrator Michel Picher’s strong pronouncement against random testing in his December 2006 Imperial Oil case was wrongly decided though it was upheld on a review for patent unreasonableness by the Ontario Court of Appeal in May. Mr. Kaplan disagreed:

In my view, the Court of Appeal made clear that it accepted Arbitrator Picher’s analysis and conclusions based as they were on the facts, the language of the collective agreement and the synthesis of the arbitral authorities all set out within a context of balancing of interests. Even if Arbitrator Picher’s conclusions were not judicially endorsed, having carefully reviewed all of the authorities relied on by counsel, I find Imperial Oil persuasive and almost on all fours with the facts of this case.

The Picher decision suggests that a general policy of unnanounced random alcohol or drug testing will only be justifiable if there is evidence of a significant problem in controlling the impact of drug and alcohol use on the workplace. In this case, Mr. Kaplan said, “There is no evidence of a problem to be adressed.”

Petro-Canada Lubricants Centre (Mississauga) v. CEP, Local 593, 2009 CanLII 44405 (ON L.A.).

Case Report – Federal appeal court says FOI requester’s identity matters

The Federal Court of Appeal has issued a unque FOI judgement that turned on the identity of the requester.

On August 12th, the Court held that records supplied to the Minister of Indian Affairs and Northern Development by an Indian band were not exempt under the Access to Information Act “confidential information supplied to government” exemption. Though the Court accepted the records were confidential, it held they were not exempt vis-a-vis the requster because she had an independent right to the records as a band member based on an Indian Act regulation. The requester filed an access request to the Minister because the band imposed a strict confidentiality condition on providing access. The Court held the condition was unlawful and granted access under the ATIA via the Minister.

In reasoning for the Court, Evans J.A. said:

Since the identity of a requester under the AIA is normally confidential, it may be argued that the identity of a particular requester cannot determine whether information is exempt from disclosure under paragraph 20(1)(b). Of course, if the identity of the requester is not disclosed, it will generally not be possible to establish that otherwise confidential documents are not confidential vas-à-vis that person.

In this case, however, Ms Poitras consented to the disclosure to the Band of her identity, in order to establish her status as a Band member. In these very unusual circumstances, and consistently with a broad interpretation of the AIA and a narrow interpretation of the exceptions, I see no reason why the identity of the requester cannot be taken into account to determine whether the information was confidential as against her.

Canada (Indian Affairs and Northern Development) v. Sawridge First Nation, 2009 FCA 245 (CanLII).

U.S. court establishes search and seizure protcol for electronically stored information

This is just to give readers a note of the fascinating computer search decision released by the Ninth Circuit on August 26th.

The decision is called Comprehensive Drug Testing. It is about the execution of search warrants in support of a United States government investigation in to steroid use in professional baseball. The warrants authorized the seizure of records relating to ten players to whom the government had probable cause to believe had tested positive in a drug testing program agreed to by the baseball league and its players association. Though the authorization was for specific records relating to ten players, the government seized a directory that contained records relating to all players who had tested positive in the program, reviewed the entire directory and then served subpoenas demanding production of the broader set of records that it had just seized.

Chief Judge Kozinski questioned whether the government’s asserted need to take the whole directory was bona fide, but in any event held that the government breached the Fourth Amendment by its manner of dealing with the directory. Specifically, he held the government acted unlawfully by not following a protocol that isolated the records it had authorization to seize before conducting a review. He then articulated the following five guidelines for the search and seizure of electronically stored information, necessary because co-mingling and other concerns will often make broad seizure and off-site search a necessity.

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.

This is reminiscent of the civil search protocol articulated by the Supreme Court of Canada in Celanese, but I am not aware of a Canadian criminal law equivalent. Anyone?

Case Report – Alberta C.A. splits on police use of electricity consumption recording technology

On August 21st, the Alberta Court of Appeal issued a split judgement in which the majority held that the police violated an accused person’s Charter rights by using a digital recording ammeter to gather information in support of a grow-op investigation.

An digital recording ammeter (or “DRA”) is a device that is installed on a power line to measure electrical consumption. In this case, the police asked an electrical service provider to install one to measure electrical consumption at a residence they suspected of housing a grow-op. The service provider agreed, and later produced a graphical representation of showing power consumption over five days. The graph showed a pattern of 18-hour cycles of high consumption, which is consistent with the presence of a marijuana grow-op. Partly on the strength of this evidence, the police obtained a warrant that led them to lay charges.

Whether the police violated the accused person’s reasonable expectation of privacy by conducting a warantless “DRA search” was the key issue in the case. It turned on (1) the quality of the electricity consumption information (and whether it went to the accused person’s “biographical core of personal information”) and (2) the effect of a regulatory provision promulgated under the Alberta Electrical Utilities Act that expressly permits Alberta service providers to disclose customer information to the police without consent unless contrary to their express wishes. This statutory permission, in the circumstances, was also backed by a contractual provision that warned the accused person that his information could be provided to law enforcement “for drug investigations.”

The majority held that the police violated the accused person’s reasonable expectation of privacy. It distinguished the Supreme Court of Canada decisions in both Plant (no expectation of privacy in electrical billing records) and Tessling (no expectation of privacy in heat patterns emanating from a residence) based on the quality of the information. It explained:

The DRA technology at issue in this case is not only different from the FLIR technology considered in Tessling, it is also more intrusive and more revealing. Here, the expert evidence confirmed that a DRA records the flow of electricity to a residence over a period of time. In doing so, it measures the amount of electricity being used at a given point, based on one amp increments. While the DRA does not indicate the source of electrical consumption within the residence, it produces information as to the amount of electricity being used in a home and when it is being used, all over a significant period of time. A pattern of excessive electrical use over a 12-hour or 18-hour cycle indicates to the police that a marihuana grow operation is likely being undertaken at the subject property, as marihuana is typically grown indoors using 12 or 18‑hour light cycles.

Notwithstanding the evidence of the police expert, Sgt. Morrison, DRA information must, as a matter of common sense, also disclose biographical or private information; for example, the approximate number of occupants, when they are present in the home, and when they are awake or asleep. This applies to all homes, regardless as to whether they are being used for marihuana grow operations: Patrick at para. 32. I note that in R. v. Tessling 2003 CanLII 8861 (ON C.A.), (2003), 63 O.R. (3d) 1 at para. 69, 168 O.A.C. 124 (C.A.), Abella J.A., as she then was, observed that many innocent, internal activities in the home, such as taking a bath or using lights at unusual hours, are intensely personal. Likewise in R. v. Plant, 1993 CanLII 70 (S.C.C.), [1993] 3 S.C.R. 281, 84 C.C.C. (3d) 203, McLachlin J., as she then was, albeit in dissent, observed (at 302-03) that mere billing records can disclose “important personal information”, including; “…what sort of activities were probably taking place there. The records tell a story about what is happening inside a private dwelling, the most private of places.”

On the effect of the statutory permission, the majority construed the regulation strictly, and only to permit the disclosure of recorded information about electrical consumption:

In my opinion, the Regulations must be strictly construed, and not interpreted to imply the homeowner’s consent in allowing the utility to gather, at the behest of the state, information that is not useful to his or her relationship with the utility. The Regulations cannot mean that the utility can be used, without judicial authorization, as an investigative arm of the police to gather evidence about what is happening inside the home, unless the consumer has forbidden it. Trespassing on a homeowner’s property is conduct the police themselves are not permitted to engage in (see Kokesch, Evans), and I do not understand that the Regulations were intended, nor constitutionally able, to empower police agents to do what they themselves can not legally do. In my opinion, the Regulations do no more than permit the utility to share pre-existing customer information with the police unless the customer has objected.

O’Brien J.A. issued a very thorough dissent, finding that there was no reasonable expectation of privacy the DRA record disclosed to the police, a finding he noted is the same as reached by the Saskatchewan Court of Appeal in R. v. Cheung. O’Brien J.A. reasoned that Plant and Tessling were not distinguishable and supported a finding that the DRA graph the service provider gave to the police did not reveal any part the accused person’s “biographical core of personal information.” He also reasoned that the Electrical Utilities Act regulation and the related service contract clearly permitted disclosure in the circumstances and therefore weighed heavily against an expectation of privacy.

Note that O’Brien J.A. also made two alternative findings. He held that the search was also reasonable because it was authorized by statute and, in the further alternative, by common law police powers.

R. v. Gomboc, 2009 ABCA 276.

Case Report – Ont. C.A. articulates soft necessity requirement for pre-action discovery

On August 21st, the Ontario Court of Appeal clarified the requirements for pre-action discovery and affirmed that an applicant for pre-action discovery must establish that the discovery sought is “necessary” to the process of obtaining justice for some wrongdoing.

Norwich Pharmacal orders, also called “equitable bills of discovery,” enable a person to conduct pre-action discovery against a third-party who is likely to have important information about a bona fide wrongdoing. The development of the Canadian standard for these and similar third-party orders is of high relevance today because they are a potential means of investigating and pursuing claims based on anonymous internet use.

The dispute in this case arose because the applicant had substantial evidence supporting actions for fraud against two known potential parties, all of which was submitted in support of its successful action for pre-action discovery of other persons. On appeal, the strongest position against the order taken by one of the respondents was that it ought not to have been granted because the information sought was not necessary to plead.

In allowing the appeal and setting aside the order, The Court of Appeal held that necessity is a requirement for Norwich order but rejected a necessity to plead requirement as being too strict. It said:

On my reading of the authorities in Canada and England, it is unclear whether the requirement of a showing of necessity for pre-action discovery properly forms part of the court’s inquiry as to whether the third party from whom discovery is sought is the only practicable source of the information available (as held in Mitsui at para. 24) or as to whether the interests of justice favour disclosure or non-disclosure (as argued by FNG before this court). However, there is no suggestion in the established jurisprudence that it is a stand-alone requirement for the granting of a Norwich order. Nor do I regard it as such.

In my opinion, the precise placement of the necessity requirement in the inventory of factors to be considered on a Norwich application is of little moment. The important point is that a Norwich order is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. It is therefore incumbent on the applicant for a Norwich order to demonstrate that the discovery sought is required to permit a prospective action to proceed, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief…

While an applicant for Norwich relief must establish that the discovery sought is needed for a legitimate objective, this requirement may be satisfied in various ways. The information sought may be needed to obtain the identity of a wrongdoer (as in Norwich Pharmacal), to evaluate whether a cause of action exists (as in P. v. T.), to plead a known cause of action, to trace assets (as in Bankers Trust and Leahy), or to preserve evidence or property (as in Leahy). The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy.

The applicant had asserted that pre-action discovery would allow it to determine the circumstances of wrongdoing and assess its legal remedies. Though the Court of Appeal implicitly accepted these purposes as legitimate, it held that the applicant did not need pre-action discovery given it knew “the nature, timing and apparent purposes of the frauds” as well as the identify of the suspected wrongdoers.

I’ve recently been enjoying Antonin Pribetic’s excellent Trial Warrior Blog. Antonin has two posts on this case, one a detailed case summary and another that discusses how Norwich orders may be used to advance defamation claims against anonymous internet users.

GEA Group AG v. Ventra Group Co., 2009 ONCA 619.

Information Roundup – 28 August 2009

Here are some links to materials within the domain that you might find interesting (in chronological order):

I’m heading to Halifax for with Hugo this weekend. It was meant to be a father-son construction check and surf trip. I had visions of introducing Hugo to shin-high surf for the first time (now two and a half) out at Martinique. Turns out Bill is coming and all my Halifax friends are frothing about the pending “swell of a decade.” I’m trying hard to keep my expectations at zero, ’cause between the limited length of our trip, Hugo supervision duties and the short window of opportunity associated with Halifax hurricane swell, it ain’t going to happen for me. (Monday looks like the choice day, and the track below looks downright disturbing!)

Should still be a good father-son adventure though – Wanna go on another surf check Hugs?” – and I cross my fingers that things will remain safe. I’ll try to post pics over at Twitter if you’re interested.

See ya!

Dan

at200903

Case Report – BCCA affirms that implied undertaking terminates after evidence adduced

On August 13th, the British Columbia Court of Appeal declared that defendants to a defamation action were not restricted from “publicizing” documents adduced as evidence at trial by the plaintiff.

In March 2008 in Juman v. Doucette, the Supreme Court of Canada made clear that a litigant’s implied undertaking of confidentiality terminates once information is adduced as evidence in open court. Even though the defendants’ motion for a permissive declaration was heard after Juman, the motions judge was sympathetic to the plaintiff’s confidentiality claim. The motions judge stressed that the law was not settled at the time of trial and recognized that the plaintiff had a genuine and ongoing interest in keeping its information confidential even though it had not asked for a protective order at trial.

The Court of Appeal held that the motions judge erred and granted a declaration that the defendants were released from their confidentiality undertaking vis-a-vis the documents in question. It held that, ambiguities in the law aside, “courts do not change the law but declare it.” It also held that the policy reasons favouring a continuing undertaking could not possibly apply given the plaintiff had entered the documents into evidence itself. According to the Court of Appeal, the plaintiff should have asked for a protective order.

International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2009 BCCA 355.

Case Report – Div. Ct. says documents protected by settlement privilege exempt from public access

On June 12th, the Divisional Court issued a 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. This finding is of consequence itself, but the purpose-driven means by which the Divisional Court reached its secrecy-favouring finding are very significant.

The facts in the case are simple. The LCBO denied access to various records related to a mediated settlement of a number of civil proceedings between itself and a winery. The LCBO 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 conceived 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 requester appealed to the Information and Privacy Commissioner/Ontario, who held that Branch 1 of section 19 does not exempt records that are subject to to settlement privilege from public access. The IPC also held that the LCBO did not prove that the records were exempt under Branch 2 of section 19 because, having not submitted affidavit evidence, the LCBO had not proved its stated intention to use the records in litigation should the mediation have failed.

The Divisional Court held that the records were exempt because they were subject to settlement privilege and because they fit within the Branch 2 exemption.

The first finding is very remarkable because the Court relied on FIPPA’s purpose provision rather than any one of the sixteen enumerated exemptions in FIPPA. In effect, the Court created an implied exemption from public access. It stated:

I conclude that the public policy interest in encouraging settlement as embodied in the common law concept of settlement privilege trumps the public policy interest in transparency of government action, in the circumstances of this case. I turn, then, to analyze this conclusion within the context of the indicators of legislative meaning proposed by professor Sullivan.

This interpretation is plausible because it complies with the legislated text (s. 1(a) of FIPPA) which provides for “necessary exemptions” that are “specific and limited.” The exemption is “necessary” to maintain confidentiality of negotiated settlements. The exemption is “specific” and “limited” in that i is specific to and limited by the circumstances of this case. A case-by-case analysis ensures settlement privilege will always be specific to and be limited by particular fact situations.

This interpretation is efficacious because it promotes the legislative purpose of creating exemptions where necessary, provided the exemptions are limited and specific.

This interpretation is acceptable because it leads to a conclusion that is both reasonable and just. As noted earlier in these reasons, no party would willingly entertain settlement discussions with a government institution if it knew its confidential settlement discussions would be made public. This is particularly so where admissions would be made and concessions offered that would be detrimental to that party. If required to discuss settlement by the Rules, those discussion would not, I suggest, be meaningful.

The Court also held that Branch 2 of section 19, interpreted purposely, ought to exempt materials otherwise subject to settlement privilege as a class. It said:

The LCBO asserted before the IPC that the mediation materials were intended for use in litigation should the mediation fail. The IPC refused to consider this because of a finding that there was no evidence to this effect. It is unnecessary for me to resolve this dispute, other than to say it is obvious that some materials used in any mediation will subsequently be used to prepare for trial and at the trial itself…

The wording of Branch 2 imposes no temporal limits on the protection provided nor limits it to particular types of litigation documents, nor specifies specific steps in the litigation. Nothing in the legislative text suggest that the term “litigation” should be given a different mening than that adopted by the courts and reflected in the Rules [of Civil Procedure]. Such an interpretation complies with the legislative text.

Such an interpretation of Branch 2 also promotes the purpose of FIPPA to provide transparency of government functioning “with exceptions where the interests of public knowledge are overbalanced by other concerns” (see Big Canoe (C.A.) above). To interpret Branch 2 in this manner recognizes that in the case of records prepared by or for Crown counsel for use in any aspect of litigation, the interests of the public in transparency are trumped by a more compelling public interest in encouraging the settlement of litigation.

The Court’s protective outlook is very atypical and will certainly be of great concern to the IPC and open government advocates. There’s also some dicta in the decision that reveals a significant subtext.

What flows from the IPC’s view of the law regarding settlement negotiations? First, the details of negotiations and settlement of any dispute between a government institution and a third party will be available to the world at large, following a request. Apparently, a Requester need but ask anonymously and the IPC will undertake the heavy lifting, as in this case. There is a delicious irony in this matter, whereby the IPC, in the name of transparency, labours for an anonymous Requester.

Ontario (Liquor Control Board) v. Magnotta Winery Corp., [2009] O.J. No. 2980 (Div. Ct.) (QL).

Information Roundup – 2 August 2009

Here are some recent links from the domain:

Wednesday will be the second anniversary of the day I started this blog. In two years I’ve made 374 posts. I’ll keep the total visit stat private, but will tell you that this is not a high traffic blog, something I attribute to the technical nature of the content that I’m wedded to. All About Information’s highest traffic day was 283 unique visitors on May 13th of this year, where a link from Michael Geist on the Cole case gave me a good spike.

I’ve been torturing myself over this decision for the last couple of weeks, but I’ve decided to set the blog to terminate (at least as you know it) at the end of February 2010. I’m having great fun blogging still, but am a believer in forced change. If I keep going indefinitely I’m bound to get bored (or boring), so need to make a commitment to shake things up. Maybe I’ll feed this content into a text? Or keep blogging on information management and privacy in a new format? Maybe I’ll use different social media to stay engaged online and finally figure out how to use LinkedIn? I don’t really know, but if you have any ideas please make a suggestion!

One thing I’ll certainly do is try and rediscover my athletic self. I’ve picked a February end date because March is really the start of the paddling season here, with some beautiful water. No commitments yet, but if things go as planned I’ll do some good crossings later in the year.

Hope you’ve enjoyed and keep coming back for the next half year!

Dan