A legal blog about the law of information by Dan Michaluk of Borden Ladner Gervais LLP
Yesterday, the Ontario Court of Appeal granted a stay pending appeal of a September 2008 order in which the Divisional Court held that investigators appointed under the Ontario Health Professions Procedural Code have the power to compel observation of surgery conducted by an investigated physician. (Summary here.) The Court of Appeal stay decision indicates the merits of the appeal will be argued on June 10th.
Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 294.
On March 10th, Arbitrator Robert Howe issued an award upholding an employer’s expanded video surveillance program while issuing a camera-by-camera order to minimize its privacy impact.
The employer installed cameras at its milk production facility, primarily to improve plant bio-security. The plant had not experienced a bio-security incident, but its auditor and a major customer urged it to improve its bio-security program. The employer installed additional cameras as part of this program, though it also acknowledged that the cameras would be used to investigate employee misconduct, including documented incidents of sabotage to equipment.
Arbitrator Howe applied a balancing of interests approach. He held that the new cameras were helpful in addressing the bio-security threat, and that the employer did not have to await a bio-security breach before implementing safeguards. He also held that the cameras were the only means of addressing employee misconduct.
Though endorsing the employer’s expanded surveillance program, Arbitrator Howe also issued an order that required it to direct cameras away from work areas as much as possible while preserving each camera’s efficacy. He also ordered that images obtained only be used as a tool to investigate bio-security threats or incidents, incidents of health and safety violations, and incidents of culpable conduct, with no real-time monitoring of employees for any other purposes, and no use of those images for purposes of monitoring production, lateness, or attendance.
Re Teamsters Local Union 647 and William Neilsen Dairy (Surveillance Camera Grievance), [2009] O.L.A.A. No. 129 (Howe) (QL).
On April 2nd, the Federal Court upheld a Department of Foreign Affairs and International Trade decision to deny public access to information that was critical of the Afghanistan government because its disclosure could reasonably be expected to be injurious to international affairs.
Though the outcome turns on the evidence adduced by the department in support of its exemption claim, the decision is nonetheless notable for the Court’s rejection of several broader arguments brought by the applicant and intervenor. It held:
Issues about the scope section 2(b) as it relates to public access to government information were argued last December before Supreme Court of Canada. In this decision, the Federal Court seemed content to wait for the Supreme Court to have its say in the Criminal Lawyers’ Association case and simply deferred to prior Federal Court jurisprudence.
On December 1st, the Manitoba Court of Queen’s Bench dismissed a motion for an order striking out a statement of defence on the basis of a spoliation claim. It stressed that spoliation claims will ordinarily be dealt with at trial. (Full summary here.) On March 18th, the Manitoba Court of Appeal issued a short endorsement in dismissing an appeal of this finding.
Commonwealth Marketing Group Ltd. v. The Manitoba Securities Commission, [2009] M.J. No. 77 (C.A.) (QL).
Hello! I’ve been working hard in anticipation of a vacation, but have still had some time to poke around the net and do some reading within the information and privacy domain. Here’s a sampling of my Twitter stream from the last week.
The last bullet links to a very thorough article on the Canadian law of spoliation by Julius Melnitzer. He quoted me on the Black & Decker spoliation case and on my view that the Canadian law of preservation has a long way to go before it offers counsel with guidance. Black & Decker is great, and does does a nice job of explaining the difference between spoliation as an evidentiary principle, a check on abuse of process and a tort. As the Court notes, however, a positive duty to preserve evidence has not yet been recognized in Canada. Does this mean we Canadians can throw caution to the wind when it comes to records preservation? Hardly! It does mean that good articulation of standard of care for preservation of records in Canada is a way’s off. Until then, we should all remain vigilant and look to non-jurisprudential authority like the Sedona Canada Principles in managing the challenging issues associated with preservation.
Had a beautiful day hanging with The Bug today while Seanna was supporting her client Endurosport at the Around the Bay 30K. Captured Hugo mind-surfing a wave. Like father like son.
See ya!
Dan
[pic deleted – sorry!]
If you’re a regular reader of this blog, you know I’ve been covering the recent string of cases in which the Crown has successfully answered Charter applications challenging the identification of internet users through simple letter requests to telecommunications carriers. The Crown has been successful in every case but one which is now subject to a significant appeal to the Ontario Court of Appeal.
The cases have turned strongly on the wording of the telecommunications carriers’ terms of service, which led a commenter to this blog to question whether it is proper to give effect to terms of service that might conflict with societal norms. He raised the Supreme Court of Canada’s warning that subjective expectations alone should not give government a license to intrude in this famous quote from Tessling:
I should add a caveat. The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society. In an age of expanding means for snooping readily available on the retail market, ordinary people may come to fear (with or without justification) that their telephones are wiretapped or their private correspondence is being read. One recalls the evidence at the Watergate inquiry of conspirator Gordon Liddy who testified that he regularly cranked up the volume of his portable radio to mask (or drown out) private conversations because he feared being “bugged” by unknown forces. Whether or not he was justified in doing so, we should not wish on ourselves such an environment. Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed. It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8. Expectation of privacy is a normative rather than a descriptive standard.
The recent subscriber data cases have not featured significant discussion about societal norms and anonymous internet use. The most detailed consideration of what ought to be was in R. v. Friers (from last September and only recently released on Quicklaw). The Court dismissed an argument that a telecommunications carrier cannot “unilaterally abrogate a defendant’s Charter rights.” Nadel J. squarely framed the issue as one of norms, noting “…I am of the view that the broad and neutral framing of the question to be answered is whether in a society such as ours do persons who use the internet on terms that their illegal use of it will not attract confidentiality have a reasonable expectation of privacy?” He then held that the defendant had no expectation of privacy in his trading of child pornography, which itself was conducted openly on the internet.
For more on the reasonable expectation of privacy test and its limits, see this recent article by Bruce Schneier, which links to the most recent American academic commentary on the expectation of privacy test. For some Canadian academic commentary, see this scholarly article by Ian Kerr and Jena McGill of University of Ottawa.
Yesterday, the British Columbia Court of Appeal dismissed an argument that various non-parties whose private communications had been intercepted by the RCMP should be given notice of a motion brought to compel production of the intercepts.
The production motion was brought by the Director of Civil Forfeiture in forfeiture proceedings. It appears to have been opposed by the defendants but not by the RCMP.
The motions judge held that notice ought to be given to the “objects of the interception” and adjourned the motion. He relied on Rule 44(5) of the B.C. Supreme Court Rules, which demands that persons “who may be affected” by an interlocutory order shall be given notice of motion.
The Court of Appeal held the motions judge had erred. It reasoned that the Rules’ third-party production provision – Rule 26(11) – is a complete code that governs the requirement to give notice of third-party production motions in British Columbia. This provision only requires notice to the third-party and “other parties” but not other persons “who may be affected.” The Court held that the general notice requirement in Rule 44(5) could not override the specific and more limited notice requirement in Rule 26(11).
Though the outcome of the appeal is based on interpretation, the Court also made some broad statements about the non-party privacy. It suggested that the Court ought to guard non-party privacy, even by ordering a two-stage hearing, but held that notice to non-parties would only lead to “unnecessary expense and complication” and would conflict with the Court’s mandate to “secure the just, speedy and inexpensive determination of every proceeding on its merits.”
The issue of non-parties’ right to receive notice of production motions based on a privacy interest is significant and can arise whenever records subject to production contain non-party personal information. See Datatreasury for a recent example. This is the first Canadian case of which I’m aware with significant reasoning on the issue. If you are aware of any cases, Canadian or otherwise, please drop a comment or e-mail.
On March 23rd, the Ontario Superior Court of Justice ordered the owner/operator of a right-wing internet message board to disclose the identities of eight John Doe defendants who had posted commentary about lawyer Richard Warman.
There are two significant aspects of the decision.
First, the Court seemed to distinguish the BMG case (where the Federal Court of Appeal endorsed a protective balancing test) on the basis that the plaintiff filed an action directly against the website owner/operator. Website owner/operators may question whether their status as first or third parties should really make a difference.
Second, the Court relied on recent search and seizure cases that have endorsed voluntary identification of internet users by ISPs to police based on permissive ISP terms of service. It used these cases to draw a general conclusion that individuals cannot reasonably expect online anonymity. Though specific terms of service should govern, this aspect of the decision illustrates that ISP policy favouring disclosure to police may affect users’ right of anonymity as against potential civil claimants.
Hat tip to Michael Geist for his leading post.
On March 12th, the Ontario Superior Court of Justice held that a defendant to a negligence claim could claim privilege in certain records against a third-party that it sued for destroying evidence related to its defence.
The matter arose out of a building fire. The owner sued a roofing contractor, who obtained several reports from a company hired to conduct an origin and cause investigation. It claimed litigation privilege in the reports in the main action. The roofing contractor later brought a third-party claim against the owner’s investigator, alleging that the investigator negligently destroyed evidence and prejudiced its defence. The third-party brought a motion to compel the roofing contractor to produce the investigation reports over which it had claimed privilege in the main action.
The Court held that the spoliation action was independent from the main action but that it was sufficiently related to the main action for privilege to apply across both actions. It said:
In the case at bar, the pivotal issue in both the main action and the third party action is whether or not the parties have been able to identify the source area and the cause of the fire. In the main action the plaintiffs must prove that the defendants’ use of the heating torch while effecting roof repairs was the cause of the fire. The third party claim is a related action the success of which depends upon the defendants proving that the third parties negligently inhibited their ability to identify the source area and cause of the same fire, and thus be able to effectively defend against the plaintiff’s claim.
The Court also dismissed an argument that the defendant waived privilege by disclosing one of the reports subject to its privilege claim. It held that the plaintiff had not met its burden of proving an implied waiver.
Rudolph Meyer & Son Ltd. (c.o.b. Meyer’s County Sausage) v. Endurowe Consulting, 2009 CanLII 10400 (ON S.C.).
It’s been a while since I’ve posted a Roundup, partly because I went to a new design in the new year that’s taken a greater effort to write. With a view to sharing more links to current information more often, I’m going to revert back to a design that’s closer to what I was posting last year. However, thanks to a great idea from law practice management consultant Ron Friedmann, will simply re-post my from my Twitter feed. To keep with the spirit of microblogging, I’m going to refrain from editing and give them to you straight. Thanks Ron!
Here are some things within the domain that have bumped around on Twitter and caught my interest:
Spring has sprung here in Southern Ontario, and I’m re-enamoured with paddling after struggling through late fall and winter. It may be hard to believe, but Lake Ontario around Toronto can be extremely beautiful. I’d encourage everyone to find a way to appreciate the lake. I’ve attached a picture below from last weekend’s paddle around Toronto Island that shows how nice the water can be (on a good day). There are more pictures posted here. The beaches at Hanlan’s Point and Gilbrartar Point are incredible. Let’s keep them clean!
Dan
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