Information Roundup – 13 July 2009

Other than the case law I’ve posted on, here’s what I’ve been reading since the last Roundup on July 5th: 

Every so often I re-jig my approach to digesting information from the web. Since I started on Twitter in January I’ve found it great for picking up on current affairs. I’ve liked the “living index” quality of Twitter so much that I’ve really been far too neglectful of RSS feeds – pretty much mass deleting everything rather than keeping up and digesting.

About a week ago I went back and did some serious weeding of my NewsGator feeds and eliminated any feeds that only broadcast the type of information I’m likely to get through Twitter. At the top of my new “desert island” list is the University of Calgary’s “ABlawg,” which struck a chord with the two posts linked above. I also like Foley Hoag’s Security, Privacy and the Law, Littler’s Workplace Privacy Counsel, Proskauer Rose’s Privacy Law Blog and K&L Gates’ Electronic Discovery Law blog via RSS.

Take care!

Dan

Case Report – Court says administrative tribunal can publish personal information

The Saskatchewan Court of Queen’s Bench issued a decision on March 9th that is significant to administrative tribunals and others with an interest in access to records of judicial and quasi-judicial decisions. The Court held that the Saskatchewan Automobile Injury Appeal Commission violates neither the Saskatchewan Health Information Protection Act, the Saskatchewan Freedom of Information and Protection of Privacy Act nor the Charter by publishing decisions that include the personal information of claimants.

The Commission hears appeals of adjuster decisions under the Saskatchewan Automobile Insurance Act. It is required to hold open hearings (subject to its own discretion to order otherwise), required to provide written reasons and required to keep records it considers necessary for the proper conduct of its business. Given the nature of its appeals, Commission reasons often include a description of evidence related to claimants’ diagnoses, prognoses and treatment programs.

The applicant moved for relief in Court after the Commission denied her request to forgo publication of its reasons for deciding her claim or, alternatively, redact her name, age, occupation and other identifying details from its reasons. She argued that disclosure was prohibited by Saskatchewan HIPA, Saskatchewan FIPPA and the Charter.

The Court found that the Commission’s adjudicative mandate necessarily implies the power to publish its reasons in the internet and then rejected all three of the applicant’s arguments.

Its most significant finding was on Saskatchewan FIPPA, where it held that the disclosure of personal information in reasons was permissible because the Commission’s written reasons are excluded from the Act as “material that is a matter of public record.” It explained:

I accept all of these three definitions of “public record”. The Commission is a public adjudicative body required to make and keep its decisions. Section 92 of the Regulations states that Commission hearings are open to the public unless the Commission orders otherwise. Its decisions are open to the public even without publishing them on the web. Further, s. 95(1) and 95(2)(d) places an obligation on the Commission to compile a record of a hearing that was held, which consists in part of the written decision of the appeal commission. It is common ground that the decision is on file at the Commission and accessible to the public. The decision of the Commission contains information prepared by a government institution which has a duty to inquire into the issues associated with the hearing and record its findings permanently.

Further, it seems illogical that members of the public could sit at the hearing and listen to all of the evidence but not have access to the decision of the Commission. The written decision is the last piece of the hearing process. Public access to decisions made by the Commission is important to assist individuals in presenting their claims and understanding the decision-making process of the Commission and to further the principle of public access to adjudicative bodies.

The Court also held that publication would otherwise be permitted under the provision in Saskatchewan FIPPA that authorizes non-consensual disclosures of personal information, in part because the personal information in reasons for decisions is collected for a purpose consistent to the purpose of publishing such information.

The Court’s treatment of the applicant’s Charter argument is also worth note. The Court dismissed a section 7 “security of the person” claim, stating “Section 7 does not protect an individual who is suffering from the ordinary anxieties that a person of reasonable sensibility would suffer as a result of being involved in an open adjudicative process.” In the alternative, the Court held that the publication of reasons did not violate the principles of fundamental justice in light of the open courts principle, which it stressed applies equally to administrative tribunals.

This decision must be understood in the context of the longstanding dialogue between the Saskatchewan IPC and the Commission about the publication of its decisions, and is remarkable in that it conflicts so strongly with the position taken by the IPC in a 2005 investigation report (here) and a paper it published in early 2009 (here). The IPC (who did not participate in this court case) made a number of recommendations in 2005 that the Commission initially refused to follow, though it eventually came into line by issuing an internet posting policy effective June 1, 2008. The Commission’s new policy contemplates publication of reasons with personal identifiers and identifying information removed, while also granting the public access to physical copies of unredacted reasons.

Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106 (CanLII).

Case Report – Nova Scotia judgment a sign of things to come on litigation and non-party privacy?

On June 30th, the Nova Scotia Supreme Court issued a judgment in which it dismissed a motion for production of documents. Though a routine motion, the Court’s reasoning may demonstrate a more modern approach to production in civil disputes, and one arguably invited by the pending changes to Ontario’s Rules of Civil Procedure.

The plaintiffs brought a motion for production in furtherance of their action against an investment dealer and an individual investment advisor. They sought documents pertaining to complaints brought by other clients against the advisor based on a claim that the dealer failed to supervise the advisor. The Court applied the “semblance of relevance” test called for by Nova Scotia’s now-replaced Civil Procedure Rules and held that the records should not be produced. Though it framed its analysis as being about relevance, the Court clearly weighed the relative value of production against its impact on non-party privacy:

In my view, the documents pertaining to other clients’ trading accounts handled by Mr. Bagnell under Mr. Youden’s supervision fail to meet the test of relevancy. Similar act evidence of this sort has little probative value to an examination of the handling of the plaintiffs’ trading accounts and in my opinion, is not necessary for disposing fairly of the proceeding. The subject allegation of inadequate supervision, whether framed in negligence or as a breach of fiduciary duty or breach of contract, will require the court to determine the appropriate standard of care and/or scope of fiduciary duty owed to the plaintiffs. That is going to be informed largely by evidence of industry standards and practices, the workplace manuals of RBCDS pertaining thereto (which already have been produced), the contract between the parties, and perhaps the introduction of expert opinion evidence. How Mr. Youden supervised the trading accounts of other clients of Mr. Bagnell would have little probative value in this determination, especially where different clients often have different investment objectives and risk tolerances in their trading activities. I am simply not persuaded that the production of these records would likely lead to the discovery of admissible evidence in this action…

The second reason for denying this application is based on confidentiality concerns. If the documents sought were ordered to be produced, there would be some unknown number and identity of other clients whose personal financial affairs would now be disclosed in this litigation, unbeknownst to them. Personal financial information is a very private and sensitive subject to most individuals. While I recognize that the implied undertaking rule would offer some protection, confidentiality concerns nonetheless remain and in the absence of any compelling argument of relevance such that the production of these documents is necessary for disposing fairly of the proceeding, those confidentiality concerns become an added reason for the dismissal of this application.

This is arguably the type of reasoning that will be invited when Ontario’s new Rules of Civil Procedure come into force on January 1, 2010. The landmark changes to the Rules will be brought in by O. Reg 438/08. This amending regulation will establish proportionality as a governing principle for interpreting the Rules, establish bare relevance as the threshold for production and establish a list of factors that a judge or master should consider in making discovery-related orders. The amendments do not expressly contemplate protection of non-party privacy as a relevant factor, and the impetus to the Rule changes (the Osborne Report) is primarily about affordability of civil justice as between parties to litigation. The changes do, however, invite a more nuanced approach to civil production, and the balancing of non-party privacy interests reflected in this Nova Scotia case may become more common.

MacGowan v. RBC Dominion Securities Inc., 2008 NSSC 421.

Case Report – Ontario’s top court affirms order granting compelled observation of surgery

Today, the Ontario Court of Appeal held that investigators appointed under the Ontario Health Professions Procedural Code have the power to compel observation of surgery conducted by an investigated physician and the power to compel an individual physician under investigation to submit to an interview.

Registrars of the self-regulating colleges may appoint investigators to look into whether a member has committed an act of misconduct or is incompetent. They must report the results of an investigation to a committee which, in turn, decides whether to proceed with discipline or incompetence charges in accordance with the procedures outlined in the Code. Investigators enjoy the following grant of power:

An investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.

Last September, the Divisional Court held that the power to “inquire into and examine,” interpreted purposively, allowed for compelled observation of surgeries. It stressed that the College’s evidence showed observation is an effective, customary and even necessary process for assessing a health care practitioner’s competence. It held that the grant of power in the Code was unambiguous, so there was no scope for interpreting it narrowly to conform with Charter values that weigh against self-incrimination and unreasonable search.

The Court of Appeal fully endorsed the Divisional Court’s reasoning and made clear that the power to compel observation of surgery applies notwithstanding recent amendments to the Code. Its reasoning stressed that the plain meaning of the words “inquire into and examine” and the purpose of the self-regulatory enactment outweighed any narrowing inference about legislative intent that might be drawn from the other text in the Code. It rejected the appellants’ argument that the Divisional Court erred in failing to consider the entire legislative context, and said, “…it would take clear words to deprive the investigator of powers necessary to carry out this important public interest [in effectively regulating the medical professions].”

Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546. 

Information Roundup – 5 July 2009

Here are my recent links of note from June 22nd.

If you’re interested in the law relating to corporate e-mail systems, be sure to check out Stengart v. Loving Care Agency Inc., linked through the fifth bullet below. It’s a New Jersey case about whether an employee waived privilege in solicitor-client communications by sending them through a personal internet-based e-mail account on a work computer. The e-mails were recovered by the employer, who claimed it could use them in post-employment litigation with the employee. The Court makes some extremely strong statements against employer control over “personal” communications on work systems – some of the strongest I’ve read.

I find the reasoning in Stengart troubling, but am withholding an opinion pending further thought. What’s immediately remarkable to me, however, is how value-laden these e-mail judgements are. Try reading the Alberta Court of Appeal’s recent Poliquin decision and Stengart back-to-back and you’ll see what I mean. This is not good in my view. As a management side advisor and advocate I’m not inclined to promote the enactment of privacy legislation, but if we are going to have enforceable privacy rights, enacting good and balanced privacy legislation might be a way to make such rights understandable. Without predictability, policy-making will be difficult and litigation of reasonable positions might be prohibited by risks that cannot be controlled. These thoughts to be continued at a later date.

On a personal note, Seanna and I are new parents of Penelope Green Robinson. She was born two days ago and is very healthy. “Green” is from Joni Mitchell’s song “Little Green” – a lovely (though sad) song about a mother’s love for child. Here’s a pic of PG and her brother Bug, who has been very welcoming. As for me, I’m feeling very grateful for my family and for the wonders of life.

See ya!

Dan

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Case Report – USSC strip search case relevant to Canadian educators

The United States Supreme Court issued its decision in the much-discussed case of Safford Unified School District #1 v. Redding on June 25th. The majority held that a strip search of a 13-year-old Savana Redding violated the Fourth Amendment but that the school officials who conducted the search were immune from liability under the American qualified immunity doctrine.

The search occurred after Redding’s friend told her assistant principal that she received a prescription strength ibuprofen pill and several over the counter painkillers from Redding. The assistant principal called Redding to his office, conducted an interrogation and searched her bag. His interrogation was aimed only at confirming his suspicion that Redding had been involved in providing other students with contraband pills. He did not ask questions to determine whether Redding was carrying pills or where she might be carrying pills, but nonetheless directed the school nurse and an administrative assistant to conduct a strip search. The two women asked Redding to pull her bra out and to the side and shake it and to pull out the elastic on her underpants. They did not find any pills.

Justice Souter wrote for the five judge majority. He applied the relaxed standard for school searches set out in the United States Supreme Court’s 1985 decision in New Jersey v. T.L.O and held that the search was justified at its inception:

This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today.

The strip search, however, was not justified. After explaining that strip searches are “categorically distinct” from other less intrusive searches, Souter J. said:

The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The search was disproportionate, according to Souter J., because there was no evidence of a serious danger to students and the assistant principal had no reason to suspect that Redding was carrying pills in her bra or underwear.

Justice Stevens and Justice Ginsburg agreed with the majority’s Fourth Amendment finding but disagreed with its finding on qualified immunity.

Justice Thomas dissented on his own. He argued that the majority decision is inconsistent with the letter and spirit of T.L.O., and in particular its call for deference to the professional judgement of educators. He also said that the contextual secondary threshold applied by the majority will be hard for educators to apply.

In Canada, the leading case on school searches is the 1998 Supreme Court of Canada decision in R. v. M. (M.R.), where the Court endorsed a relaxed standard for school searches based on T.L.O. Justice Cory wrote for the majority and said:

The test established in T.L.O. dispenses not only with the warrant requirement but also with the need for probable cause, imposing instead a generalized standard of reasonableness in all the circumstances. However it must be observed that this test has been subject to criticism in the United States (see, e.g., J. M. Sanchez, “Expelling the Fourth Amendment from American Schools: Students’ Rights Six Years After T.L.O.” (1992), 21 J. L. & Education 381; Thomas C. Fischer, “From Tinker to TLO; Are Civil Rights for Students ‘Flunking’ in School?” (1993), 22 J. L. & Education 409). Nonetheless in my view the test set out in T.L.O. can be applied in the elementary and secondary school setting in Canada. Significantly the same result reached in T.L.O. can be obtained by applying principles to be derived from decisions of this Court which have considered the Charter.

M. (M.R.), affirmed by the Supreme Court of Canada in 2008, dealt with a “pat down” type search of a male student in which a vice-principal found drugs after asking him to turn up a pant leg. The Court found this means of search to be reasonable based on an application of the following principles:

The search conducted by school authorities must be reasonable, authorized by statute, and appropriate in light of the circumstances presented and the nature of the suspected breach of school regulations. The permissible extent of the search will vary with the gravity of the infraction that is suspected…

The circumstances to be considered should also include the age and gender of the student. For example, a search of the person of a female student by a male teacher may well be inappropriate and unreasonable. Every search should be conducted in as sensitive a manner as possible and take into account the age and sex of the student. It should not be forgotten that the manner in which students are treated in these situations will determine their respect for the rights of others in the future.

This is the same as the proportionality requirement established in T.L.O. and applied in Redding, so Canadian educators may heed the caution offered by Redding. Thomas J. is right that the fully-contextual secondary standard governing the extent of school searches is not precise. The majority opinion in Redding makes clear, however, that strip searches will only be justified in special cases.

Safford Unified School District #1 v. Redding, 557 U.S. ____ (2009).

Case Report – Court affirms Anton Piller in departing employee case

On May 5th, the Alberta Court of Queen’s Bench for affirmed an Anton Piller order that permitted a search of business premises and private residences and seizure of materials and information related to a departing employee claim.

There is a three-part test for the making of an Anton Piller order: (1) there must be an extremely strong prima facie case; (2) the potential or actual damage to the applicant must be very serious; and (3) clear evidence that the defendants have incriminating evidence in their possession and that there is a real possibility they may destroy such material.

The Court examined the mixed jurisprudence on the “serious harm” element and held that it requires proof of procedural rather than financial harm. That is, an applicant must demonstrate that its proposed order will preserve evidence without which it could not prove its case. The Court reasoned that the purpose of the extraordinary order is to preserve evidence and that irreparable financial harm can be addressed through an ordinary injunction:

As discussed, the adverse financial impact approach considers potential harm that may be visited upon the plaintiff as a result of the use of the proprietary or confidential information that the defendant has or may have in its possession. If this is the type of damage that the plaintiff seeks to enjoin, then an injunction may suffice without the need for the court to exercise the extraordinary power of granting an Anton Piller Order. As noted by Hoffmann J. in 1268 Lock International Plc. v. Beswick and Others, [1989] 1 W.L.R. 1268 at 1281, Anton Piller orders reside at the “absolute extremity of the court’s powers”. For that reason, they should only be granted in circumstances which demand their imposition. Those circumstances would have to include more than the desire to enjoin certain activities which could be accomplished through much less intrusive methods. They must include a need to preserve evidence without which the plaintiff’s claim could not be proven.

The Court held that the applicant met its burden of proving serious harm even though it had copies of the information taken and (presumably) evidence showing it was taken. The Court suggested that the applicant would also need forensic evidence about how its information was stored and maintained on the defendants’ computers to prove misuse of confidential information: “[Making out its case] would include showing where the information was taken and how it was used or altered.”

The Court also engaged in a detailed analysis of the evidence to determine whether the applicant had established a “real possibility” of destruction based on a “compelling inference.” There is a policy lesson in this part of the judgement for employers who are likely to be faced with claims by departing employees who take electronically-stored confidential information and claim they deleted it because they realized that taking it was wrong. In the face of such a defence, the Court drew an inference that destruction of evidence was a possibility based partly on the applicant’s good information management practices. It said:

I am satisfied that on all of the circumstances in relation to this point there is a basis upon which to draw a strong inference of dishonesty. Particularly compelling is the fact that Higham took the documents in the face of his supervisor’s warning and an employment agreement he executed prohibiting him from copying or transmitting “[a]ll notes, records, working papers, files, research material or literature accumulated or developed” while at CCS…

Secure argued that the e-mails Higham deleted and the CD-Rom he destroyed was not “evidence” when it was destroyed because there was no Statement of Claim yet issued or because the litigation had not yet commenced. Belzil J. in Netsmart considered the destruction of documents before litigation had commenced in relation to this arm of the test. In any event, Higham knew he was in possession of documents that he should not have had and he chose to destroy them. Even if the destruction was in good faith as he claims, a point upon which I make no finding, it does not mitigate the risk of his destroying further CCS documents in his possession. In other words, he was given to destroying documents that were improperly in his possession. Regardless of his motives the fact that he did this at least twice indicates that it may well happen again. As stated by Richard A.C.J. in Adobe, at para 89: “It cannot now be argued that the plaintiffs should be denied an Anton Piller type order preserving evidence when that evidence was in fact destroyed.”

While this passage highlights the applicant’s good information management practices, the applicant also suffered for agreeing to give another of its departing employees his work laptop in return for a promise to make a charitable donation and then failing to wipe the laptop when requested by the employee. The Court held that it could not draw any negative inference from the employee’s deletion of over 4,000 e-mails in these circumstances because the this action was consistent with the actions of an honest employee who wanted to rid himself of his employer’s e-mails. As a result, the Court revised the order to exclude the laptop.

The plaintiff brought a cross-motion to deal with the scope and form of production of information from a number of seized hard drives. The award discusses the protcol by which the parties will deal with production but is not very directive as it appears they were in substantial agreement on how to proceed.

CCS Corp. v. Secure Energey Services Inc., 2009 ABQB 275 (CanLII).

Case Report – Strong words on employers’ interest in controlling employee computer use by the Alberta C.A.

The Alberta Court of Appeal’s June 22nd judgement in Poliquin v. Devon Canada Corporation is not a privacy judgement, but contains some very strong dicta supporting employers’ interest in controlling employee use of their computer systems.

The case is about an employer that terminated a long-service supervisor for, among other things, sending and receiving pornographic and racist e-mails. In holding the employee’s wrongful dismissal claim ought to be dismissed summarily, the Court of Appeal made the following remarks:

It is important to situate a document like the Code of Conduct in the larger workplace context. Employers have the right to set the ethical, professional and operational standards for their workplaces. Doing so not only falls within an employer’s management rights, it also constitutes an integral component of corporate good governance. The workplace is not an employee’s home; and employees have no reasonable expectation of privacy in their workplace computers. It therefore follows that while employers may permit employees limited personal use of workplace computers, the employer is entitled to restrict the terms and conditions on which that use may be permitted. Devon did just that. Employees are permitted to use Devon’s equipment “for limited personal use”, but such use must be in compliance with the Code of Conduct: App. Key Evidence, Vol. 1, A83. The Code of Conduct expressly provides that prohibited use of e-mail includes “[s]ending…pornographic, obscene, inappropriate or other objectionable messages or attachments via e-mail to anyone”: App. Key Evidence, Vol. 1, A83. Further, harassment is defined under the Code of Conduct as including “[v]isual conduct such as pornographic or derogatory…e-mails…”: App. Key Evidence, Vol. 1, A80.

Employers have good reason to be concerned about the misuse of their equipment and resources in order to access, receive and disseminate pornographic or racist material. The potential for harm to an organization flowing from this kind of misconduct is great. It can easily poison a work environment, thereby denying equal employment opportunities to others: Backman v. Maritime Paper Products Ltd., 2008 NBQB 219 (CanLII), 2008 NBQB 219, 67 C.C.E.L. (3d) 261 at paras. 9-11. Since work is an essential aspect of an individual’s personal life, an employer owes obligations to all employees in its organization. It cannot turn a blind eye to discrimination or harassment in its workplace: Menagh v. Hamilton (City), [2005] O.T.C. 898 at paras. 46 & 287 (S.C.J.), aff’d 2007 ONCA 244 (CanLII), 2007 ONCA 244. As the Ontario Court of Appeal recognized in Gonsalves v. Catholic Church Extension Society of Canada 1998 CanLII 7152 (ON C.A.), (1998), 164 D.L.R. (4th) 339 at para. 10, 39 C.C.E.L. (2d) 104, an employer “has a duty to all the employees both to end the [sexual harassment] and to alleviate its impact upon the employment environment.” See also Tellier v. Bank of Montreal reflex, (1987), 17 C.C.E.L. 1 at 12 (Ont. Dist. Ct.), where the Court recognized that an employer has “a heavy responsibility to protect its employees.”

If an employer fails to act, it faces a significant risk of actions by employees who are subjected to discrimination or harassment – and properly so: see for example Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (S.C.C.), [1987] 2 S.C.R. 84 , 40 D.L.R. (4th) 577; Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (S.C.C.), [1989] 1 S.C.R. 1252, 59 D.L.R. (4th) 352; Bannister v. General Motors of Canada Ltd. 1998 CanLII 7151 (ON C.A.), (1998), 164 D.L.R. (4th) 325 at para. 20, 39 C.C.E.L. (2d) 91 (Ont. C.A.); and Tellier at p. 12. Therefore, employers are fully justified in taking proactive steps, including the adoption of codes of conduct, to curtail and prevent improper conduct.

There are other negative consequences an employer may suffer when an employee misuses its equipment and resources for pornographic or racist purposes. The reputation of an employer in the business and wider community can be seriously compromised when even one employee engages in this kind of behaviour, particularly where that employee holds a senior supervisory position. It can also adversely impact on the work – and work ethic – of the employee in question given the very real risk that the misuse will occur in whole or in part on the employer’s time. And then there is the threat to a company’s information technology systems. Computer operating systems can be infected with worms and viruses introduced through inappropriate accessing of pornographic and racist websites or through receiving tainted material downloaded from these websites. In addition to these concerns, this kind of misconduct increases the risk that other ethical and professional boundaries will, by reason of the employer’s perceived tolerance of the original misconduct, be more readily crossed, not only by the affected employee, but by others within the organization, or even perhaps outside it (like suppliers to a company).

In summary, an employee’s misuse of a workplace computer for pornographic or racist purposes negatively affects an employer’s professional, ethical and operational integrity. Employers are not required to tolerate the misuse of their computers and Internet access any more than they are required to put up with serious incidents of dishonesty by employees. When an employee steals money from an employer, the theft and resulting damage is at least confined to that employee. But where dissemination of pornographic or racist material using the employer’s computer or Internet access is concerned and especially where the employee’s e-mail address includes the employer’s identity, this is not necessarily so. In the information technology world today, e-mail can be disseminated to many inside and outside an organization with the click of a mouse. Accordingly, the harm done may well be far more serious and pervasive. This reality substantially increases the risks to employers flowing from the misuse of their equipment and Internet access for improper purposes. For these reasons, an employer is entitled not only to prohibit use of its equipment and systems for pornographic or racist purposes but also to monitor an employee’s use of the employer’s equipment and resources to ensure compliance.

Please forgive the lengthy quote, but it is a fairly powerful excerpt and handy to us management lawyers.

For Michael Fitzgibbon’s excellent discussion of Poliquin and the availability of summary judgement in wrongful dismissal cases, see here.

Poliquin v. Devon Canada Corp., 2009 ABCA 216.

Information Roundup – 22 June 2009

Here are the links I’ve tweeted since the last Roundup:

Been going very hard lately. I think summer is supposed to be a time for a little catch up, but I probably agreed to take on a few too many speaking engagements and had a couple of big matters to handle at the same time. I do find getting out and speaking a good way of learning though, and I have no regrets about my last month in that regard.

On the personal front, we’re expecting our second child very shortly. It’s about time, because Hugo (below) seems two going on ten. I just talk to him like an adult now, ’cause he seems to understand everything. Big vocabulary too – good words and bad!

The baby’s due just after Canada Day, and I’m heading out solo to our friends Dave and Janie’s wedding on Cape Breton island that weekend. A certain disaster waiting to happen, but rushing back to TO could also make for a good story. We’ve never been good at keeping things simple!

Take care and enjoy the links!

Dan

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  1. Port and Popsicles on the back porch. So good an experience I should sell tickets!4 minutes ago from web

  2. Liked Mike Fitzgibbon’s Summary Judgement in Employment Disputes: http://bit.ly/PHB7y5 minutes ago from web

  3. Thank you for the RT@MAllinotte!23 minutes ago from web

  4. RT @slaw_dot_ca New post on Slaw: The Justice Reporter http://tinyurl.com/lqy4fn Printed a copy for review. Looks good.23 minutes ago from web

  5. Supremely secret: top [Canadian] court wants law clerks muzzled: http://bit.ly/YhW8J Not a hard find, but interesting.37 minutes ago from web

  6. Interesting case on ER vicarious liability for EE privacy misdeed: http://tinyurl.com/lcqs3g Via @privacylaw7:10 PM Jun 21st from TwitterBerry

  7. Nice day in TO. Morning at Riverdale farm and then a paddle out around Leslie Spit.3:53 PM Jun 21st from mobile web

  8. Good TO Portlands experience this am. Windsurf sesh followed by splash in the pool at Mayfair. Feeling human now.1:04 PM Jun 20th from web

  9. Reading The Court’s Privacy is Dead post: http://bit.ly/13d1Ee8:20 PM Jun 19th from web

  10. “Crown brief” production judgement by the BCCA: http://bit.ly/cxmdV [Still unpacking this, but have recorded the essence.]4:43 PM Jun 19th from web

  11. Congrats! RT @wenlib Trying to focus – too excited about the new job. I’m going to be the Manager of client services at the Leg Library…3:54 PM Jun 19th from web

  12. @privacylawyer Yes, we’re getting lots of mileage out of it. Can’t wait to hear your views over a beer some day…no tape recorder present!7:34 AM Jun 19th from web

  13. John Gregory pushes back on my comment on the scope of privacy rights and Raitt at @slaw_dot_com: http://bit.ly/flBni5:45 AM Jun 19th from web

  14. @erikmagraken on today’s Crown brief production case from the BCCA: http://tinyurl.com/lcqs3g Thx Erik!7:41 PM Jun 18th from TwitterBerry

  15. @dominicjaar Nice gig, I’d say!7:33 PM Jun 18th from mobile web

  16. Commented on the @a_cameron post on the Raitt tape case @slaw_dot_ca: http://bit.ly/flBni1:46 PM Jun 18th from web

  17. Thanks @pensionlawyer and @sectorprivate. Further developed thoughts (sort of) here: http://bit.ly/t0BDG10:52 AM Jun 18th from web

  18. Privacy guy’s awesome digest is up: http://bit.ly/IKKYh5:23 AM Jun 18th from TweetDeck

  19. And on a more serious note, great OBA dinner on search and seizure. Prof Austen drew an nice link between R. v. Patrick and Internet privacy8:32 PM Jun 17th from web

  20. @beermile Very flattered by the comparison to Bobby Riggs, but your assumption about my fitness level might be too generous!8:31 PM Jun 17th from web

  21. Thank you @smireau and @helply. Here’s the privacy wheel, posted by @privacynow from down under:http://twitpic.com/4b0f112:29 PM Jun 17th from web

  22. I recall following someone who created this great “privacy wheel,” an internal communication/training aid. Can you help me find it?9:27 AM Jun 17th from web

  23. Decided to attend this OBA dinner program on search and seizure tonight. Looks good. If you’re in TO, check it out: http://bit.ly/2loDMz8:14 AM Jun 17th from web

  24. RT @beermile Beermile.com just surpassed 10,000 entries. (via @doctorfantastic)10:13 PM Jun 16th from mobile web

  25. Thanks for this (on U. Illinois admissions suit) @PrivacyLaw – http://tinyurl.com/l5hkdu9:47 PM Jun 16th from TwitterBerry

  26. Reminded of this timeless article in an firm project. Forget the Windup and Make the Pitch: http://bit.ly/mnPHV8:05 AM Jun 16th from web

  27. Added short addendum to Ontario IPC personal e-mails case: http://bit.ly/w4sTA5:47 AM Jun 16th from TweetDeck

  28. Tandem appeals in Prime Minister’s agenda book matter come in against public access: http://bit.ly/kkKEu8:58 PM Jun 15th from TweetDeck

  29. Paddleboarders prepared to pack it on: http://bit.ly/14fVSH7:54 PM Jun 15th from TweetDeck

  30. Final argument in big matter (for me) today. Exhausted. Fulfilled.7:22 PM Jun 15th from mobile web

  31. Student appeals and higher education student affairs issues: http://bit.ly/i2agF Good presentation/discussion this morn. Materials here.2:47 PM Jun 14th from TweetDeck

  32. Like a couple from the @eschaeff “at the blogs” including the one from @AdamsDrafting on bad words in contracts. http://bit.ly/1pWMAa5:49 AM Jun 14th from TweetDeck

  33. Got it! http://www.facebook.com/dan…7:54 AM Jun 13th from web

  34. Case Report – Raitt “lost recorder” judgement published: http://bit.ly/t0BDG [Leading the way for bizarre privacy case of the year!]9:33 PM Jun 12th from web

  35. Thanks for the FF @erikmagraken, @omarharedeye, @berskinparr and @sectorprivate. Enjoy your weekends!7:29 PM Jun 12th from web

  36. #followfriday @jordan_law21 for the free advice on the use of “wither” and “whither.” Thanks again Jordan!7:27 PM Jun 12th from web

  37. The CBA has published its new Privacy Pages newsletter: http://bit.ly/m6d7011:13 AM Jun 12th from web

  38. RT @RalphLosey Supreme Court Won’t Hear Case Over Computer Tech’s Right To Search Your Computer http://bit.ly/CUxXa6:43 AM Jun 12th from web

  39. Off to Rethink Breast Cancer’s “Romp”. Should be fun!5:42 PM Jun 11th from mobile web

  40. Posted e-mail law presentation here: http://bit.ly/adTfs Found today very useful. Good presentation by @a_cameron and others!4:17 PM Jun 11th from web

Case Report – “Crown brief” production judgement by the BCCA

Yesterday, the British Columbia Court of Appeal allowed an appeal of an order that required the Vancouver Police Department to produce records that had become part of the Crown’s brief in a ongoing prosecution.

The plaintiff is the father of a man who was struck and killed by a motor vehicle in a hit and run. The defendant is the man charged criminally for the hit and run. The defendant’s criminal trial has been adjourned and will re-commence later this year. In the civil action, he did not produce to the plaintiff the materials he received from the Crown in its disclosure. This led the plaintiff to apply for third-party production from the police. The Crown then objected, claiming litigation privilege and public interest immunity.

The Supreme Court ordered production last December. It ordered production of records as a class (the class of all records produced in the criminal matter) from the Vancouver Police Department subject to an objection by the Crown to the production of any specific documents. The Crown objected to this process and argued for a process more like that endorsed by the Ontario Court of Appeal in D.P. v. Wagg – that is, one in which the protected status of the documents is presumed subject to an application to be brought by the party seeking production.

The Court of Appeal accepted the Crown’s argument, allowed the appeal and endorsed a rather complex form of order that contemplates a police inspection, a police decision on production and privilege, recovery of costs incurred by the police and court supervision of the police decision on production and privilege.

See here for Erik Magraken’s summary of the case.

Wong v. Antunes, 2009 BCCA 278.