I’m twittering

On the Rogers’ technology adoption curve it’d be fair to deem me either a “sleepy early adopter” or a “relatively early majoritarian.” So after reading a number of raves from inside and outside the legal blogging community about Twitter and its great successes in 2008, I figured it was about time to join in.

Yesterday I brought my long-dormant Twitter account to life and am now following basically anybody I know whose Twittering in the Canadian legal community as well as some of the more profound legal Twitterers from south of the border. Have I missed you? Please let me know.

My very early impression is that Twitter is both amazingly impersonal and amazingly intimate. Could there be a tool more ready-made to facilitate the merger of personal and professional lives?

So I’m enthused, and am looking forward to using Twitter together with this blog in the upcoming year. I plan on pushing more bite sized information and privacy content out through Twitter and saving a little more context for my regular “Information Roundup” feature. Twitter may also help me bring the content of this blog into focus by giving me a good vehicle for collaborating on all the other things I find interesting. I’ll need to ease my way into more personal tweets, but something tells me that won’t take long.

Please follow if you care!

Dan

2008 Canadian Law Blog Awards

I’m honored to have received recognition in the Best Practitioner Support Blog category of the 2008 ClawBies, won by Clark Wilson’s Canadian Trademark Blog.

Congrats to all winners and finalists, with a special nod to co-finalists Donna Seale and Michael Fitzgibbon, blogging inspiration and winner of the Non-Legal Audience Award Connie Crosby and David Doorey, whose Doorey’s Workplace Law Blog won the Best New Blog Award and who I’m looking forward to following in 2009. Thanks also to Steve Matthews, whose hard work has obviously gone far in helping develop a vibrant Canadian legal blogging community.

Happy new year. Stay warm and safe!

Dan

Happy holidays everyone!

I’m embarrassed to have posted a case summary on Christmas Eve, but I got sucked in by the Colwell case. I will sign off at this point, and wish you all a happy holiday. I’m honoured to have a regular readership of any size and thank you for listening. See you in the New Year!

Case Report – Court finds constructive dismissal for engaging in workplace surveillance

On December 15th, the Ontario Superior Court of Justice held that an employee was constructively dismissed because her employer installed a video camera in her office on questionable grounds and recorded images surreptitiously for about nine months before she discovered the camera and abruptly quit.

Prudent employers and their counsel have long been cautious about the enforcement of employee privacy rights through constructive dismissal claims, claims in which an employee alleges a fundamental breach of an express or implied term of an employment contract based on a privacy violation. This case, however, is the first I’m aware of in which such a claim has been successfully made.

While significant in illustrating the risk to employers who take a casual approach to employee privacy, the outcome is not surprising given the facts. Most significantly, the employer installed the camera to address an undisputed theft problem, but did not suspect the plaintiff. The only reason it had for installing the camera in her office was that it thought the suspects would go to the plaintiff’s office to “review the loot,” a suggestion the Court said was “preposterous.” The plaintiff also appears to have discovered the camera when she visited a supervisor’s office and saw a live feed of her office, raising a serious question about use and security of the images.

The Court did not mention whether the employer had a policy incorporated into the employment contract that gave it license to conduct surreptitious monitoring of its workplace or anything about the plaintiff’s expectation of privacy, but even a well-drafted and properly incorporated policy might not have given rise to an effective defence on these facts.

Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139 (ON S.C.).

Case Report – Man QB stresses spoliation claims will be dealt with at trial

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.

The claim was for defamation and abuse of public authority and centered on an investor alert published by the Manitoba Securities Commission. The warning was published after the conclusion of an MSC investigation in which it had met with the plaintiffs and surreptitiously recorded the meeting. The MSC destroyed the audiotape after litigation had commenced on the advice of the RCMP, who said that destruction was required by section 184.1 of the Criminal Code, a wiretap authorization provision that puts certain restrictions on the retention of wiretap evidence. The plaintiffs claimed that this provision did not apply and that the MSC was reckless in following the RCMP’s advice. They claimed the transcript of the interviews that remained was inaccurate, refused to answer questions about the authenticity of the transcript and moved for an order to strike.

In dismissing the motion, the Court adopted the Alberta Court of Appeal’s recent six-part conclusion in McDougall v. Black & Decker Canada Inc. In fact, it treated the conclusion like a code, taking pains to modify the sixth part of the Alberta Court of Appeal conclusion to ensure slightly greater leeway to award pre-trial relief for spoliation. It replaced the following Alberta rule…

Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process.

…with this rule, which it said should apply in Manitoba:

Pre-trial relief may be available where a party claims on reasonable grounds that he may be disadvantaged by the destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process.

The Court held that the plaintiffs had not proven any prejudice on the motion, but it stated that a “qualitative assessment” of the MCP’s actions and the impact on the plaintiffs’ case could be heard by the trial judge. And despite its preference for slightly more flexibility than in Alberta, the Court nonetheless stressed that pre-trial relief for spoliation claims should be rare: “Our legal system is structured to require issues of admissibility of evidence to be determined at trial and not by a pre-trial judge.”

In the end the Court did issue an order barring the defendants from using the transcript in discoveries. Though the plaintiffs had not yet proven prejudice, it held this restriction was fair given the MCP’s continued reliance on the Criminal Code provision, which on the MCP’s reading, ought to also have required it to destroy the transcript.

Commonwealth Marketing Group Ltd. v. Manitoba Securities Commission, 2008 MBQB 319 (CanLII).

Case Report – NSSC case speaks to harm flowing from disclosure of information outside of its context

In its December 8th freedom of information decision in Halifax Herald v. Nova Scotia (Workers’ Compensation Board), the Nova Scotia Supreme Court addressed a technical yet noteworthy point about unfairness that can flow from disclosing information that may send a stigmatizing message without more context.

The Court ordered access to a list of the names of the 25 employers with the highest number of workplace accidents in Nova Scotia. The WCB had tried to argue that disclosure of the list alone would harm the companies by unfairly stigmatizing them as employers with a poor attitude towards workplace safety. The Herald’s response is interesting. As explained by the Court in the following excerprt, it adduced evidence of its track record for responsible journalism.

In response to WCB’s concern that the disclosure may unfairly embarrass the named employers, the Herald filed a supplementary affidavit of Dan Leger outlining the Herald’s track record and policy of following ethical guidelines for impartiality, completeness, and contextualizing in accord with responsible journalism. I note that the four other requests made of WCB by the Herald would provide fair context for the one refused. From the Annual Report, it is clear that if WCB does not have the size of the workforces (request #2) it does have their respective total assessable payrolls, and if WCB does not have their respective safety rating compared to their industry average (request#5) they clearly have calculated their claims cost experience in comparison with their industry peers (Report, p. 13).

Nothing in the Act exempts the Herald, or any other recipient of the disclosure, from liability under the well-established torts of defamation, injurious falsehood, deceit, or negligence, whether or not Qusson v. Quan 2007 ONCA 771 (CanLII) [sic], 2007 ONCA 771 (recently followed in Grant v. Torstar 2008 ONCA 796 (CanLII), 2008 ONCA 796) is confirmed, modified, or overturned by the Supreme Court of Canada as a result of the hearing scheduled for January 13, 2009.

While interesting, this response conflicts with two key principles in freedom of information law: (1) the identity of the requester is not relevant; and (2) a disclosure to one is treated as a disclosure to the world. Though the Herald has custody of other information to set the context, has a good track record of responsible journalism and is bound by the law of defamation, as any freedom of information requester it is free to share the information with anyone and everyone, a practice becoming more common on internet “clearing houses” of government information.

The Court did not expressly reject the Herald’s argument, though it did make clear the WCB’s exemption claim failed simply because it had not adduced sufficient evidence to prove an unfair stigma. It seemed to accept the validity of the “bad attitude” stigma that would attach to the employers, but said the WCB had failed to prove that this stigmatization would be unfair. Without such proof, the WCB’s claim amounted to a claim that the employers would suffer ordinary embarrassment, which is not a basis for exempting information from public access under any freedom of information statute.

The logic of the unfair stigma exemption claim is sound and not upset by this decision. The decision does, however, illustrate the burden on institutions that raise such a claim. They must (1) establish the reasonable inference that would flow from disclosure of the de-contextualized information (i.e. the stigma) and (2) prove unfairness by adducing evidence about the full context.

Halifax Herald v. Nova Scotia (Workers’ Compensation Board), 2008 NSSC 369 (CanLII).

Information Roundup – 14 December 2008

South-west winds strong enough to generate ridable surf are very rare in Toronto, but today we had just enough for a nice small and clean session. Felt good. Nice weekend of family time along with some work and a little reading otherwise. Here are some links I picked up that you may enjoy.

Princeton University, The Future of News. This a list of podcasts from a Princeton Centre for Information Technology Policy workshop that took place in May 2008. I commend David Robinson’s talk, “Attention, Distraction and Information Glut.” It’s just excellent – optimistic and insightful. Frankly, I listened to one of the other panels and found it annoying and deleted the rest. Gotta like learning on-demand!
BBC Radio, The Right to Know. A two part podcast on global trends in FOI policy, with a focus on some of the growing pains being felt in newer regimes. From August 2008.
Philip Gordon, First Federal Court Decision to Uphold ‘Termination’ Based on Myspace Content Rejects First Amendment Claim of the ‘Drunken Pirate.’ The title says it all. A good case summary of Snyder v. Millersville University, issued December 3rd. (Littler Mendelson)
Ralph Losey, Why E-Discovery is Ruining Litigation and America and What Can Be Done About It. A bold thesis to go along with this bold title: litigators who are feigning competence in e-discovery are ruining litigation. Ralph says the “protodigitals” need to step aside and let the “geek-counsel” take control of discovery to save the American civil justice system.
Citizen Media Law Project, Federal Appeals Court Examines Two MySpace Student Speech Cases and Florida Student Sues Overs Suspension for Facebook Postings. The CMLP is doing a very good job of covering recent American “student speech” cases, of which it has eight in its caselaw database. The first article above is about appeals in two cases that have received discussion amongst Canadian school administrators – Layshock v. Hermitage District and J.S. v. Blue Mountain School District. The latter is about a new case from Florida – Pembroke Pines Charter High School v. Evans. These captivated me enough to warrant recording a few thoughts below.

Evans is about a student who created a web page where she said her teacher was the worst she had ever met and encouraged her classmates to express their “feelings of hatred.” The site generated a number of responsive comments in the two days it was live. Three of the comments supported the teacher.

Despite a fact pattern that might cause one to immediately question the school’s actions, I think Evans has significant potential to provide guidance. Unlike in Layshock and Blue Mountain, it’s hard to say the student’s harsh, emotion-driven and perhaps unfair criticism is objectively offensive, so the case could lead to some very good discussion about what types of harms individuals ought to tolerate in assuming the special duties of a teacher. There’s a high level of sensitivity to “cyberbullying” right now, an issue taken-up strongly by our local secondary and post-secondary teacher associations and unions. This concern is legitimate in my view, but what are the proper boundaries? In this regard, Evans seems like it has good potential to be a boundary-setting case.

Furthermore, and to be fair to Pembroke Pines Charter High School, Evans could also be an opportunity to invite a discussion on the link between incivility in the school environment and the risk of physical violence. Many would say that there’s a greater interest at stake in responding to uncivil conduct than hurt feelings alone.

See ya!

Dan

Case Report – BCCA considers proportionality and waiver of privilege by implication

In a leave to appeal application decided on December 4th, Smith J. of the British Columbia Court of Appeal rejected an argument that proportionality is not part of the test for implicit waiver of solicitor-client privilege.

The respondent was 15 days late in complying with a court order to serve an affidavit. The applicant brought on contempt proceedings based on the respondent’s pattern of conduct. As part of its defence, the respondent addressed the 15 day delay by claiming his solicitor did not make him aware of the deadline until too late. He served a second affidavit along with an e-mail from his counsel as evidence.

The applicant unsuccessfully applied for production of other related communications between the respondent and his counsel. The applications judge held that the 15 day delay was not central to the contempt proceeding so an order for production would not be “proportional.”

Smith J. held that the applications judge did not err by applying an inappropriate test for waiver. She held that “proportionality” was concept that is consistent with the fairness aspect of the test for waiver by implication – a rule by which privilege will be waived in communications related to those in which there is an intention to waive privilege where fairness and consistency demand a broader waiver. According to Smith J., “Fairness dictates that requests for access to non-material information do not satisfy the waiver test.”

Hub International Limited v. Tolsma, 2008 BCCA 500.

Ontario civil justice reforms announced

The Ontario Ministry of the Attorney General formally announced its civil justice reform package this morning after filing a regulation yesterday. The backgrounder indicates that, among other things, the amendment will embed the concept of proportionality into Rule 1.04, require parties to engage in discovery planning and limit oral discovery to seven hours except with leave or the parties’ consent.

OBA Eye on Privacy Posted

The OBA just published its December edition of the Eye on Privacy newsletter. This edition has a good article by my colleague Michelle Alton entitled “Personal Information on Online Sources and Employment Recruitment.” There’s also a nice case summary by John Swaigen of the IPC on a House of Lords case from June called Common Services Agency. The case seems to be loaded with lots of good FOI and privacy issues, including an issue about the duty to create anonymized (or, in this case, “barnardised”) records to facilitate public access. Sounds like a good read.