Case Report – Ont. C.A. allows criminal records check appeal about disclosure of withdrawn charges

Yesterday, the Ontario Court of Appeal held that a police service lawfully disclosed information about an individual’s withdrawn criminal charges in the course of administering background checks.

The applicant, a social services worker, was charged with four counts of sexual assault and four counts of sexual exploitation. At trial, the charges were withdrawn and the applicant entered a peace bond. The applicant was later denied a license for a group home, denied employment and terminated from employment, assumingly based on information provided after conducting a vulnerable persons search. In response, he brought a successful application for an order to have information about the withdrawn charges expunged from police records.

The Court of Appeal held that the applications judge erred to the extent that he found that the applicant did not give specific consent to the disclosure of the withdrawn charges. The Court held that consent to disclose this information could be inferred in the circumstances even though the written consent form did not expressly refer to withdrawn charges. This essential finding is illustrative but fact-based. More broadly, however, the Court also found that the consent was not invalid because it was coercive. It said the following about the fairness of background checks:

The fact that a person effectively must consent to a Vulnerable Persons Search in order to apply for certain types of jobs may be perceived as coercive and, in that way, possibly unfair. In regards to this alleged coercion, the affidavit evidence in this case indicates that these searches are necessary in order to give prospective employers involved with vulnerable persons all potentially relevant information about potential employees, within the bounds of the permissible disclosure of personal information under MFIPPA. Also, in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.

The Court also rejected arguments that the disclosure breached the applicant’s rights under sections 7 and 8 of the Charter.

This highlights the vulnerability of individuals in Ontario who are charged of criminal offences but not convicted given the recent finding by the Human Rights Tribunal of Ontario that the “record of offences” protected ground does not protect persons only charged with offences. See de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII). [Addendum: A contact has told me the complainant in de Pelham has stated his intent to file an application for judicial review.]

Tadros v. Peel (Police Service), 2009 ONCA 442.

Managing your privacy obligations and my records retention and destruction presentation

I spent the last two days at the Canadian Institute “Managing Your Privacy Obligations” conference.

It was a very informative conference. with advanced content and discussion led by a faculty of many I admire. It was also a pleasure to finally meet and speak with fellow privacy law bloggers and contemporaries David Fraser and Brian Bowman. I took notes live on Twitter in a stream posted here. (Read from the bottom up.)

My own presentation was on the law of records retention and destruction. I used it as an opportunity to go a little beyond privacy and walk through all the legal and practical underpinnings of a retention rule.  Here are my slides:

I’ll also offer a link to my paper, which I’d still characterize as a work in progress. If you have any comments or thoughts, please feel free to post them here or e-mail.

Thanks to the the Canadian Institute, conference organizer Sandra Bernstein and co-chairs David Fraser and Amanda Maltby. I was very pleased to be involved.

Case Report – Alta. C.A. says “chewing gum survey” does not cause an unreasonable search

On May 11th, the Alberta Court of Appeal held that a defendant abandoned an expectation of privacy in his DNA by depositing chewing gum into a paper cup provided by an undercover officer who had asked him to participate in a “gum survey.” It rejected the defendant’s argument that spitting something out into a receptacle (as opposed to an environment that would promote anonymity) did not demonstrate abandonment. (Wouldn’t the opposite be true?) It also held that the police set up was neither a trick that warranted sanction nor was it an act that affected the Crown’s abandonment claim: “The act of the officer holding out the Dixie cup did not cause the appellant to discard the gum; it merely provided an opportunity for the police to collect it.”

R. v. Delaa, 2009 ABCA 179 (CanLII).

Case Report – Ont. C.A. affirms arbitration board’s principled attack on random drug testing

Yesterday the Ontario Court of Appeal affirmed a December 2006 award by an arbitration board chaired by Michel Picher in which he held that Imperial Oil breached its collective agreement with Local 900 of the CEP by implementing random drug testing by buccal swab.

The Court of Appeal’s judgement turns on the standard of review rather than on principle. The Court did not feel it necessary to reconcile the majority’s strong stance against random drug testing with its own affirmation of random alcohol testing in the year 2000 Entrop decision. It simply noted that Mr. Picher had distinguished Entrop because Imperial Oil’s testing method took two days to return a test result. The Court said:

Moreover, the Majority was alert to Imperial’s contention that its random oral fluid drug testing was analogous to the random alcohol breathalyser testing approved in Entrop. As it was entitled to do, the Majority considered, and rejected, this contention on the basis of the evidence before it that oral fluid drug testing in fact did not permit immediate detection of drug impairment on-the-job (paras. 64 and 112-113).

While this might appear to still leave employers with room for implementing random drug testing based on a method that does address current impairment, Mr. Picher did make a very principled attack on random drug testing, suggesting it was unreasonable unless an employer is able to adduce evidence of “extreme circumstances” such as an “out-of-control drug culture.” Mr. Picher’s award does not bind other arbitrators who are charged with interpreting other collective agreements, but it is authoritative, particularly after yesterday’s affirmation.

For my earlier, more comprehensive summary of the case, see here.

Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada , Local 900, 2009 ONCA 420.

Information Roundup – 21 May 2009

Here are some recent tweets of note!

I have a big case starting tomorrow, so why did I post two blog entries today?! I think its because I’m ready and this is a good way to blow off some nervous energy. I also owe an overdue thanks to my KM colleague Pamela Hillen. She’s been passing on some great cases that I’ve been able to blog about. Thanks Pam!

See ya!

Dan

Case Report – Arbitrator dismisses faculty association challenge to e-mail outsourcing

On May 11th, Arbitrator Joseph Carrier dismissed a grievance that claimed a university violated faculty members’ right to privacy by outsourcing its e-mail system to Google.

The association relied on a collective agreement provision that required the university to provide a “computer connection” and another by which the university agreed, “that members have the right to privacy in their personal and professional communications and files, whether on paper or in electronic form.”

Mr. Carrier held that the promise to provide a “computer connection” was not a promise to provide members with e-mail service. He also held that, having provided e-mail service, the university did not breach its privacy-related undertaking by outsourcing to Google. His conclusion on the privacy claim rested on a finding that e-mail communications are inherently insecure. He said:

It is doubtful, and, indeed, there was no evidence offered to demonstrate that such comprehensive e-mail privacy is technologically achievable. It is beyond credulity that the University or indeed the faculty would have intended such a broad and impractical meaning. How could the University reasonably fulfil such an obligation and, for instance, ensure that no third party would seek out or otherwise gain access to a faculty member’s personal files let alone his or her professional communications? It is my view that the provision as worded has a much narrower meaning. It is not an undertaking to protect members’ privacy from all manner of intrusion by third parties; rather, it is an acknowledgement that those rights exist and, at best, an undertaking by the University itself not to subvert or undermine those rights. If it was intended as an absolute guaranty of privacy from all sources, the language used ought to have been much clearer than exists in this provision. It would have to say, for instance, “the University warrants that it will protect the e-mail privacy of faculty from all manner of surveillance, intrusion and/or interception”. Indeed, as Mr. Bickford argued, privacy rights insofar as they exist in law are never absolute. Canadian courts may and do endorse subpoenas which probe into confidential information held by, for instance, banks and similar institutions. It would be surprising if the University could even begin to insulate its faculty from such intrusion.

Professors Schulhofer and Geist gave expert evidence in the matter.

Lakehead University (Board of Governors) v. Lakehead University Faculty Association, 2009 CanLII 24632 (ON L.A.)

Case Report – NSCA opines on meaning of “educational history” in FOI law

On May 14th, the Nova Scotia Court of Appeal affirmed a chambers judge’s finding that a list of names of over 4,000 certified electricians was not exempt from public access. In doing so, it held that the list’s disclosure was not presumed to be an unreasonable invasion of privacy as a disclosure of information that “relates to educational history,” stating:

In order to be found to be employment or educational history, the information must do more than simply have some sort of link to employment or education. The words “employment and educational” are not nouns, but adjectives which describe the word “history”. The presumption against disclosure will only arise if the information relates to “employment or educational history” in the fuller sense set out in the jurisprudence.

Here the requested information consisted of the list of certified construction electricians. The only particulars on that list were the names of individuals with certificates of qualification or of apprenticeship… The principles developed in the jurisprudence relating to employment history would also apply to educational history. Here, no information as to an individual’s educational background, such as schools attended, courses, discipline, and assessments can be gleaned from the list of names.

The Court relied on the Supreme Court of Canada’s 2003 decision in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police).

A.B. v. Griffiths, 2009 NSCA 48.

Case Report – Ont. SCJ says no expectation of privacy in data stored on work computer

On April 28th, the Ontario Superior Court of Justice held that a teacher had no expectation of privacy in information stored on his work laptop.

A school board investigated the teacher after noticing he had an abnormal pattern of network use. A member of the board’s IT staff accessed his laptop remotely and found nude photographs of a 16-year-old Grade 10 student. Soon after, the board obtained the laptop from the teacher (who refused to provide his password) and reported him to the police. The police charged him with possession of child pornography. Given the teacher allegedly obtained the photos by accessing a student’s e-mail account, the police also charged him with unauthorized use of a computer pursuant to section 342.1 of the Criminal Code.

The Ontario Superior Court of Justice allowed an appeal of the trial judge’s decision to exclude evidence based on a finding the board had breached the teacher’s Charter right to be free from unreasonable search and seizure. It held that the trial judge had erred in concluding that the teacher had an objectively reasonable expectation of privacy, stating:

The laptop on which the impugned evidence was found was issued to Mr. Cole as an instrument of his employment with the school board by his employer. The evidence is that the laptop was the property of the school. Mr. Cole, in his teaching role, taught students in the classroom using this employer-issued computer while his students used their own laptops. Both the respondent and his students used school board software, server, and the school’s computer network. I take judicial notice of the fact that employers, in their use of computers to carry on their business, invest tremendous amounts of money and time creating, inputting, analyzing, managing and protecting the data coming into, going out of, and stored on their computer systems.

While the judgement contains numerous statements as broad as this, the Court did state that its judgement turned on a number of specific facts. It stressed that  the teacher was bound by his employment contract to an acceptable use policy that limited his interest in information stored on the laptop and that the teacher (quite remarkably) had a special role in supervising computer use at the board that ought to have reinforced this point.

This appeal judgement reflects an approach that has been traditionally adopted by Canadian labour arbitrators and, to the extent they have addressed the question, Canadian courts. It is not surprising in itself, but the sharp difference in view held by the trial judge nicely illustrates the current tension on this issue. The trial judge had said:

In the present case, the accused had not rented the computer but was given the exclusive use of it, such exclusive use being secured by a password. Its contents could not be accessed, except when in actually in use or when one was in possession of the password. We also know that there existed some protocol at least to advise staff of any imminent intention to recover actual possession of their computers. Barring this, staff were allowed to use their computer for limited personal purposes and, indeed, to take them home during the summer recess, whether for personal use or for the purpose of preparing their fall courses. Whatever the official policy might have been (this would likely avoid any later argument) the actual policy seems to have been to accept that staff would load private material onto their computers.

This might reveal a judge who was struggling with the idea that the black letter of policy can nullify the expectations that otherwise might be engendered by personal use. For now, this view remains the minority view (if that) and is reinforced by the recent “lawful access” decisions reported on this blog as typified by R. v. Wilson.

I’ll be speaking on this topic at the upcoming OBA “Hot Topics in Privacy Law” seminar. Details are linked here.

R. v. Cole, 2009 CanLII 20699 (ON S.C.).

Case Report – BCCA sets aside Anton Piller order because findings in prior order were inadmissible

On May 7th, the British Columbia Court of Appeal set aside an Anton Piller order obtained by the Crown against acquitted Air India bombing defendant Ripudaman Singh Malik and his family members.

The Court filed an action against Malik and family members to recover monies paid to support his defence in the Air India trial. The monies were paid pursuant to an agreement that was premised on an agreement by Mr. Malik to transfer his assets to the Crown. When he did not make the transfer, the Crown refused to continue funding Mr. Malik’s defence. In response, Mr. Malik brought a “Rowbotham” application for a state-funded defence. He was unsuccessful, but reached a subsequent agreement with the Crown and was eventually acquitted.

The Crown sued for repayment of advances made under the first agreement. It claimed it entered the agreement based on misrepresentations and claimed that Mr. Malik and his family members conspired to hide assets and hinder the Crown’s collection of monies owed. The Crown obtained a Mareva injunction and Anton Piller by submitting and relying heavily upon the judge’s finding in the Rowbotham application.

The Court of Appeal held that the Crown had not established a strong prima facie case of fraud nor had it shown a real possibility the defendants would destroy any incriminating documents that may be in their possession because only some of the judge’s findings from the Rowbotham application were admissible. The Court characterized findings in the Rowbotham application as follows:

The conclusion reached by Stromberg-Stein J. was that Mr. Malik had the means to pay for, or make a contribution towards, his defence costs. Her conclusion was based on her finding that Mr. Malik could look to the income and assets of his family, as well as his own assets, because the assets of Mr. Malik and his family were fused. In the alternative, Stromberg-Stein J. would have decided the application on the issue that Mr. Malik had disentitled himself to relief because he had not prioritized his legal expenses over other expenses.

The Court held that Mr. Malik could not be bound by the application judge’s alternative finding in a subsequent proceeding because it was a collateral finding. It explained that the doctrines of issue estoppel and abuse of process, “will not prevent a person from re-litigating findings that were collaterally made by the court and were not fundamental to the decision in the earlier proceeding.”

Also notable is the Court’s finding that the jurisdiction to order an Anton Piller flows from a superior court’s inherent jurisdiction. It rejected an argument that the British Columbia Supreme Court has no jurisdiction to order an Anton Piller because the Court’s rule-based power to preserve property on an interim basis is narrowly worded.

Note that the Court did preserve the Mareva injunction against Mr. Malik alone based on a finding that the Crown had prima facie claim for an equitable interest in his property and otherwise met the test for an injunction.

British Columbia v. Malik, 2009 BCCA 201.

Case Report – BCCA deals with complaint by employee terminated after background check

On May 7th, the British Columbia Court of Appeal ordered a matter back to the Information and Privacy Commissioner of British Columbia to address whether the Ministry of Children and Family Development breached the accuracy provision of the British Columbia FIPPA by advising one of its funded agencies to supervise a newly-hired employee pending its review of his file.

The Court of Appeal considered a single substantive issue. It held that the OPIC does not have jurisdiction to consider whether a designate of the Minister is authorized to disclose information by section 79(a) of the British Columbia Child, Family and Community Services Act, which authorizes non-consensual disclosures that are “necessary to ensure the safety or well-being of a child.”

The Court of Appeal did, however, remit a different substantive matter back to the OIPC that was apparently raised by the chambers judge on his own motion. The chambers judge had held that the Ministry breached FIPPA’s accuracy provision by basing its supervision recommendation, at least in part, on the existence of an “assessment only” file on the Ministry’s records. The Ministry opened this file as a result of a child services complaint against the employee that the Ministry had determined was beyond its jurisdiction. The chambers judge held that the Ministry breached its duty to “make every reasonable effort to ensure that personal information is accurate and complete” by relying on the “unreliable” file. The Court of Appeal held the chambers judge erred given the OPIC had not made a decision on the accuracy issue, but did remit it back to the OPIC.

Harrison v. British Columbia (Information and Privacy Commissioner), 2009 BCCA 203.