Case Report – Alberta OIPC blesses picket line videotaping for limited purposes

On March 30th the Alberta Office of the Information and Privacy Commissioner held that a union did not need consent to continuously video tape a picket line so it could capture any evidence of picket line misconduct. 

The OIPC held that the union could rely on the Alberta PIPA “investigations exception” to the rule against collecting personal information without consent. The exception applies when a collection, use or disclosure of personal information is “reasonable for the purposes of an investigation or legal proceeding.” The OIPC held that this language is engaged when misconduct is “likely to occur.” It explained:

I accept the broadest of the possible interpretations of the provision. In my view the inclusion of the phrase “reasonable for the purpose” takes the place of any temporal restriction, allowing information to be collected in the appropriate circumstances even though an investigation or legal proceeding may never take place in fact. It strikes me as prudent and therefore reasonable to collect information which could avoid contests, in the context of an investigation or legal proceeding that is reasonably likely to arise over contentious facts which would be hard to establish through witness testimony. As there was a reasonable likelihood of incidents on the picket line that could lead to a police investigation and law enforcement proceedings, and as a Labour Relations Board or court proceeding relative to the conduct of the picketing was reasonably forseeable, an investigation or legal proceeding was reasonably likely to arise in the circumstances of the present case.

This finding – that the investigations exception can apply to surveillance – is of significance that goes beyond the picket line scenario being considered. The OIPC’s treatment of the picket line scenario itself is of less significance but nonethless interesting.

Picketers often employ video cameras and still cameras, a practice thought by some to be an intimidation tactic. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and the union admitted to several suspect purposes, including dissuading people from crossing the picket line and using humour to support picket line morale. The OIPC did not draw a negative inference from this evidence and accepted that the union’s asserted investigative purpose for collecting images was genuine. Since the union had a single genuine purpose for collecting and using the images, the OIPC explained, it violated neither the consent requirement in the Act nor the reasonable purposes requirement of the Act:

I note finally that the result would be the same even if the Union’s primary purpose was one relative to which the Act gives no authority, and the authorized purpose was relatively a very minor one, as long as the latter was genuine. If I thought the Union was fabricating the authorized purpose to try to validate its collection of information, and that its only true purpose or purposes was other than the authorized one asserted in its submission, I would declare that the collection was in contravention of the Act (or order cessation if collection were continuing) even though the Act authorized collection of the same kind of information for a purpose that the Union did not genuinely have. In this case I believe that the gathering of evidence for the purpose of a possible investigation or legal proceeding was one of the reasons the Union was collecting information through video recordings and photos. Thus it is sufficient to declare that the video recording and photographing was in contravention of the Act (in the absence of consent) only insofar as it was for any of the other purposes.

Despite this limited blessing, the OIPC found that the union nonetheless violated the Act by collecting, using and disclosing images for purposes other than its investigative purpose and, specifically, by taking still photograps of individuals (which did not reveal any misconduct) and by using pictures of a vice-president of the employer in its posters and newsletters. The OIPC also held that the union failed to give notice of its investigative purpose as required by the Act.

Order P2008-008 (30 March 2009).

Fair Procedure and Students at Risk

I wrote a client bulletin with the above-noted title that was published today. Here’s a teaser:

This university and college sector bulletin highlights an important and easily overlooked consideration in managing students at risk: protection of the procedural rights of students who are required to participate in medical assessments.

And here’s a link.

Case Report – On Wild Coyotes and collecting personal information

The British Columbia Information and Privacy Commissioner’s drivers license swiping case (from July 21st) nicely illustrates some points about justifying personal information collection under a necessity standard – a standard for collection common to both public and private sector Canadian data protection legislation.

The IPC’s most significant finding was that Vancouver’s “Wild Coyote Club” could not require patrons to consent to a drivers license swipe (or surrender a piece of ID) as a condition of service because the related collection of personal information went beyond what is “necessary to provide the product or service.” It affirmed that British Columbia PIPA requires that a mandatory collection be reasonably necessary rather than strictly necessary. It also articulated the following two-part test (emphasis added):

For personal information to be “necessary” for the purpose of s. 7(2) of PIPA, the purposes for the collection, use or disclosure must be integral to the provision of the product or service. In addition, the personal information must fulfill a significant role in enabling the organization to achieve that purpose.

The IPC said that these questions will be assessed in light of the sensitivity of the personal information being collected and whether there are less intrusive means of meeting a legitimate objective for collecting the information.

In one sense, the decision demonstrates that broad grounds of justification based on theories of human behavior are hard to argue. In this case, every patron whose license was swiped also had his or her picture taken. The picture was matched with the information from the license, so the club (and law enforcement) had access to picture-based index of all individuals in the establishment on any given night. The club and the other parties who participated in support of swiping argued that such a system would significantly reduce incidents of violence. Though their theory – that individuals would modify their behavior if they know they are identifiable – is logical, the respondent and intervenors did not present any evidence (either statistical or from social science) to show that their theory was true, or to at least show that swiping provided a significantly better violence  deterrent than video surveillance alone. (The IPC addressed the club’s need to keep banned individuals from entering the club separately, and approved of the matching of identifying information other than drivers license numbers against like identifying information in a banned individuals database.)

In another sense, the decision illustrates that having a better record of an event will not ordinarily be sufficient to justify collecting personal information. One cannot dispute that a drivers license swipe creates a highly accurate record of (1) the fact that a patron presented a drivers license and (2) that the drivers license presented contained certain data in electronic form. So the scanning system in place at the club gave it a very accurate record of due diligence, but this wasn’t sufficient justification for the collection of identifying information itself. On this point, the IPC noted correctly that a drivers license swiping system only records the identification someone presents and does not ordinarily aid in authenticating the individual, which still must be done by a door person’s visual inspection of picture identification. The IPC acknowledged a swiping system protects against “passbacks” – a scheme which involves the use of the same identification piece by two different people – but said the club had presented no evidence to demonstrate that passbacks were a significant problem that it encountered in enforcing the terms of its liquor license.

David Fraser has covered the ID swiping issue very well. Click here for an index of his posts.

Order P09-1, 2009 CanLII 38705 (BC I.P.C.).

Case Report – BCCA considers implied waiver of solicitor-client privilege and non-party production

The British Columbia Court of Appeal has recently published a June 11th oral judgement on an implied waiver of privilege claim and a motion for production of non-party documents.

On the implied waiver claim, the Court held that a pleading by a plaintiff that alleged it would not have entered a settlement agreement had it known about certain fraudulent conduct did not give rise to an implied waiver of solicitor-client privilege in communications related to the settlement. It stressed that a mere allegation as to a state of affairs on which a party may have received legal advice does not warrant setting aside solicitor-client privilege.

On the affirming the chambers judge’s refusal to order production from a non-party, the Court stated, “A chambers judge has a discretion to refuse production of documents that are of marginal relevance where other documents relevant to the same issue have already been produced: see Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770.”

Procon Mining & Tunnelling Ltd. v. McNeil, 2009 BCCA 281.

Case Report – Manitoba sunglasses at night case illustrates key requirement for spoliation inference

A June 30th Manitoba Court of Queen’s bench decision nicely illustrates that an adverse inference for spoliation requires proof of intentional misconduct.

The Court held that the plaintiff contributed to her slip and fall injury because she was wearing her sunglasses at dusk. The defendant’s evidence supporting this conclusion went in through a witness who viewed the incident as it occurred via feed from a surveillance camera and testified that the plaintiff was wearing her sunglasses. The defendant also adduced a photo frame taken from the surveillance tape that showed the plaintiff holding her sunglasses in her hand after the accident. The defendant destroyed the tape itself, however, even though it had made a preservation request to its security department.

The Court rejected the plaintiff’s argument for an adverse inference because it had not proved the tapes were destroyed intentionally (citations omitted):

…there is no evidence that the tape was intentionally or deliberately destroyed so as to justify any spoliation inference, i.e., the presumption that intentionally destroyed evidence would tell against the spoliator. I cannot infer that the evidence was destroyed to affect the litigation. There is no indication that Ms. Park had anything to do with the tape being unavailable (the only evidence the court heard in this regard was hearsay – Ms. Park was told it was taped over). Nor can I conclude that the unavailability of her notes was due to any deliberate act. In any event, Ms. Park saw the incident as it occurred through the camera and she was subject to cross-examination. She maintained that Ms. Kulynych was wearing sun-glasses. I found her to be convincing in her evidence and forthright and reliable.

The Court did not consider whether a remedy should be granted under the abuse of process doctrine in consideration of the apparent prejudice to the plaintiff, though the Alberta Court of Appeal’s leading Black & Decker case suggests that an abuse of process remedy will also only be available if there is proof of intentional spoliation.

Kulynych v. Manitoba Lotteries Corp., 2009 MBQB 187 (CanLII).

Employer access to employee e-mails in Canada

I presented at an OBA privacy conference back in early June but held off posting a short paper I wrote for it entitled, “Employer access to employee e-mails in Canada.” The paper argues that there are signs that the traditional “no expectation of privacy” approach to addressing employer access to employees’ stored communications is waning, leaving employers with a choice between giving clearer notice to employees or, alternatively, implementing purpose-based controls to protect employee privacy.

This is a hot topic north and south of the border, and was so even before the Superior Court of New Jersey Appellate Division issued its much discussed decision in Stengart v. Loving Care Agency on June 26th.

Stengart is about whether privilege is waived in solicitor-client communications that are stored on an employer’s system. Our own leading case on this issue is Daniel Potter, which suggests that privileged communications made by employees on employer systems deserve greater protection than other “private” employee communications. Despite this distinction, the reasoning in Stengart is very broad, very pro-privacy and is further reason for employers to pay heed to the issues I raise in my paper.

For a copy of the full paper, please click here. And please feel free to contact me or comment below with your feedback and ideas.

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

There is a division in Canadian arbitral jurisprudence on whether an arbitrator can (or should) refuse to admit surveillance evidence where the surveillance does not meet a standard of reasonableness. On June 15th, Ontario Arbitrator Stephen Raymond held that relevant surveillance evidence is admissible notwithstanding an alleged breach of privacy. He said:

I do not see that the method by which evidence is obtained has any impact on its admissibility before me. It is either relevant evidence in which case I must admit it or it is not. How it was obtained is of no concern to me. For example, let us assume a situation where a person breaks into a manager’s office and while in the office finds a document that is relevant to a question before an arbitrator. Clearly the action of the person breaking into the office could be pursued criminally and if that person was an employee (bargaining unit member or not) it might be pursued civilly. The illegality of the method by which the document was obtained, however, would not be a consideration in respect of its admissibility before an arbitrator. If evidence that is obtained in a clearly illegal way can be admitted, how is it that evidence that is obtained in a way that offends the sensibilities of many arbitrators but is not illegal is not admissible? The simple answer is that it is admissible.

I also note that many arbitrators who have excluded surreptitious videotape surveillance evidence seem to base their decision, in part, on the nature of the evidence. I do not see how the nature of the evidence impacts its relevance. No arbitral authority has been provided which supports the proposition that the observations of a private investigator hired to observe the actions of an employee is inadmissible or that there be an exclusion of that investigator’s notes of the observations made. Furthermore, if the investigator takes pictures of the employee, such evidence is admissible. It is only the videotape (moving pictures) that seems to be the type of evidence in which arbitrators say the employer has gone too far.

I also am of the view that the right to privacy, however it may arise, is not germane to this issue. If the right exists, and I take no view at this time as to whether it does or does not, it can be pursued for its infringement. If an employee has such a right and this right has been infringed then, in the context of a collective agreement, it can be pursued as a grievance and a remedy for the infringement of the right can be fashioned by an arbitrator.

The employer was represented by Mike Fitzgibbon of Thoughts from a Management Lawyer.

Re Ready Bake Foods Inc. and United Food and Commercial Workers International Union, Local 175, [2009] O.L.A.A. No. 308 (Raymond).

Case Report – Court orders plaintiff to list relevant documents contained in Facebook site

Those following the litigation of production disputes related to Facebook pages will be interested in the Ontario Superior Court of Justice’s July 6th order in Wice v. Dominion of Canada General Insurance Co.

After hearing a motion in this motor vehicle accident claim, Boswell J. ordered the plaintiff to include relevant documents from his Facebook account in a further and better affidavit of documents, granted the defendant leave to cross-examine the plaintiff on the affidavit and ordered the plaintiff to preserve all information in his Facebook account for the duration of litigation. He followed the Court’s now well-known decision in Leduc v. Roman.

Wice v. Dominion of Canada General Insurance Co., 2009 CanLII 36310 (ON S.C.).

Case Report – SCC alters section 24(2) test… applies it in search and seizure case

On July 17th, the Supreme Court of Canada issued two search and seizure decisions. In R. v. Harrison, the majority applied a newly-developed test for excluding evidence obtained in breach of the Charter and excluded evidence obtained in a “brazen” and “flagrant” unlawful search of a rental car. In R. v. Shepherd, the Court unanimously held that a brethalyzer demand was made based on reasonable and probable grounds and was therefore lawful.

Real and non-conscriptive evidence excluded in Harrison

The Ontario Court of Appeal’s majority decision in Harrison has been criticized for allowing in evidence that would bring the administration of justice into disrepute. It is about a drug charge that followed a police demand to pull over a rental car on a Northern Ontario highway. The officer had no real reason to stop the car other than he had been told it was rented at the Vancouver airport and it was driving at only the speed limit. After the stop, the officer learned that the driver was driving with a suspended license, arrested the driver and searched the vehicle purportedly incident to that arrest. He turned up a large stash of cocaine.

Though the trial judge found the officer’s in-court testimony to be misleading, he admitted the evidence of the found drugs because he felt the criminality of the officence to be serious. A majority of the Ontario Court of Appeal agreed.

A majority of the Supreme Court of Canada, with Dechamps J. dissenting on his own, held that the evidence ought to be excluded based on the police officer’s blatant disregard for Charter rights and his misleading testimony. The majority applied the new three-part test articulated in the Court’s concurrently-issued decision in R. v. Grant, in which it said a court must assess and balance the affect of admitting evidence on society’s confidence in the justice system having regard to:

  1. the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct)
  2. the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little)
  3. society’s interest in the adjudication of the case on its merits

This framework was endorsed by the majority Grant to encourage a more contextualized approach to admissibility and to back away from a rule that conscriptive evidence is generally inadmissible. In Harrison, the found cocaine was neither concriptive evidence nor unreliable in any way. Regardless, the Court held that it should have been excluded, finding that the exclusion of reliable evidence of a serious offence did not outweigh the importance of maintaining Charter standards.

For an early critique of the Grant framework, see here.

R. v. Harrison, 2009 SCC 34.

Trial judge wrong in finding officer had no reasonable grounds for breathalyzer demand

The sole issue in Shepherd was whether a trial judge erred in finding that a police officer had insufficient grounds to demand a breathalyzer. The judge that the officer had a sufficient subjective belief but that his belief was not objectively reasonable, in part because he had relied on the accused person’s initial failure to pull over. The accused person said that he didn’t pull over because he thought the police car was an ambulance. The trial judge felt this excuse was valid, and held that the officer did not have reasonable grounds even though he testified that the accused person looked lethargic, had red eyes and smelled of alcohol.

The Court held that the existence of reasonable grounds is a question of law subject to review on a standard of correctness. It then held:

With respect, it is our view that the trial judge erred in finding that the officer’s subjective belief of impairment was not objectively supported on the facts. The officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd. The trial judge placed substantial weight on Mr. Shepherd’s explanation that he thought the police vehicle was an ambulance. Leaving aside the fact that this confusion itself can be a sign of impairment, it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. In our view, there was ample evidence to support the officer’s subjective belief that Mr. Shepherd had committed an offence under s. 253 of the Criminal Code. We therefore conclude that the officer had reasonable and probable grounds to make the breath demand, and that Mr. Shepherd’s Charter claim must fail.

R. v. Shepherd, 2009 SCC 35.

Case Report – Whistle-blower leaks privileged report to Crown… charges stayed

Today, the Ontario Court of Appeal allowed an appeal of a noteworthy case about breach of privilege by the Crown.

The case involves an investigation report prepared at the request of external legal counsel after a critical injury for which Occupational Health and Safety Act charges were ultimately laid. An employee who was given a draft of the report on the undertaking he destroy it gave a copy to the Crown. This was after the company had asserted privilege to the Ministry inspector, who had agreed not to order the report’s production.

When the Crown disclosed the report to the company in its Stinchcombe production the company immediately objected, and at trial moved before a justice of the peace for a declaration (that the report was privileged) and a stay. It initially succeeded in obtaining a declaration, a stay and an order for $38,000 in legal costs. On appeal to a judge, the Court overturned the stay and the costs order. It held that the proper remedy for breach of the defendants’ section 8 rights was an order excluding the report and that the motion for a stay based on prejudice to trial fairness was premature.

In allowing the appeal, the Court of Appeal started by minimizing a statement made by the justice of the peace about the reporting being “primarily informational.” It held the lower court had found the report was subject to solicitor-client privilege and that this point was not challenged in the appeal.

The Court of Appeal then held that the presumption of prejudice endorsed by a majority of the Supreme Court of Canada in Celanese applies when the Crown comes into possession of a defendant’s solicitor-client communications:

Counsel for the Crown in this court sought to distinguish Celanese on the basis that it was a civil case in which the appellants were “attempting to utilize a civil onus to achieve a criminal result”. I reject this submission. In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.

On the facts, the Court of Appeal held that a stay was the appropriate remedy. The basis for the finding is narrow. It stressed that the justice of the peace had made a specific finding that the report set out items that could be used to the disadvantage and prejudice of the defendants and held that the Crown had not led any evidence about its distribution and use of the report to rebut the inference.

R v. Bruce Power, 2009 ONCA 573.