On October 27th, the Ontario Superior Court of Justice ordered a party to pay $15,000 in damages for trespass plus costs on a full indemnity basis for misidentifying its intended target and seizing documents from the wrong target’s residence based on what the Court held to be an inadequate investigation.  The order was made on a motion brought by the subject of the Anton Piller, who waived any claim to mental distress damages so he could have an immediate remedy.

Multimedia Global Management v. Soroudi, [2008] O.J. No. 4383 (S.C.J.) (QL).

On November 5th, the British Columbia Court of Appeal held that it was not plain and obvious that an individual who directed an investigation into an allegation of employment-related misconduct did not owe a duty of care to the subject of the investigation.

The facts of the case are not unique.  A school board received a complaint that a principal had been physically abusive to a teaching assistant.  The superintendent retained an external investigator, who investigated and prepared a report that the superintendent relied upon in issuing a letter of discipline. Although the principal’s legal counsel objected that the principal had not been given an opportunity to review and respond to the final report before discipline was imposed and requested that the board refrain sending a copy of the letter to the British Columbia of College of Teachers before such an opportunity was granted, the superintendent nonetheless sent the letter to the College.  The principal sued the school board and the superintendent for various deficiencies in the investigation and for publishing the letter of discipline.

The Court of Appeal held the action should not be struck because it was not plain and obvious that the superintendent owed no duty of care. It distinguished the Ontario Court of Appeal’s recent finding in Correia v. Canac Kitchens as being a case about whether an employer itself owed a civil duty of care to its employees in conducting internal investigations.  Though the Ontario Court of Appeal rejected such a duty in Correia, according to the British Columbia Court of Appeal it did not address whether an individual employee could owe an independent duty of care to another employee under investigation. The British Columbia Court of Appeal also held that the policy reasons that weigh against recognizing an employer duty of care did not apply to claims made against an individual employee.

The Court also rejected the superintendent’s attempt to strike the action because he was acting strictly in the course of his employment.  It held that the well-known principle in Said v. Butt (that shields employees from liability for causing a breach of contractual duties owed by their employers) does not extend to the tort of negligence even when the acts alleged to be negligent occurred in the performance by the employee of a contract between the employee’s corporate employer and a plaintiff.

Hildebrand v. Fox, 2008 BCCA 434 (CanLII).

Here are a couple of mid-week links to check out.

• Anne M. Macrander, Bloggers as Newsmen:  Expanding the Testimonial Privilege. Seems like a flashy issue, but it’s so important. (Boston University Law Review 88:4)
• Bobbie Johnson, Cloud computing is a trap, warns GNU founder Richard Stallman.  Covers Stallman’s warning about the loss of data control associated with cloud computing. Thanks to Privacy Guy.  (guardian.co.uk) 

Just finished up three days of summer student recruiting.  It’s a job we take very seriously at Hicks.  A ton of work but always very rewarding.  I learn something about myself, my colleagues and the profession every time. We met some great some great candidates over the last few days and shared with them an intense and sometimes emotional experience.  Thank you, and wish you all the best!

See ya!

Dan

On October 30th, the Alberta Court of Appeal reinstated an action dismissed because the plaintiff had destroyed evidence. In doing so, it made some very clear and principled statements distinguishing the traditional spoliation presumption from other bases for a spoliation remedy.

First, the Court confirmed that the spoliation presumption first recognized by the Supreme Court of Canada in the 1896 St. Louis case is simply a rebuttable presumption of fact that requires a finding of intentional destruction of evidence:

Moreover, in my view, it is not appropriate to apply the presumption that the evidence would tell against the spoliator when evidence has been lost or destroyed carelessly or negligently, or something else short of the intention required by St. Louis. The presumption is no more than an adverse inference, drawn from circumstances surrounding the destruction or loss of the evidence. When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.

Next, the Court distinguished this specific remedy from the broader range of remedies that might flow from the Court’s rules-based or inherent jurisdiction to control its process. It suggested the maintenance of trial fairness should be the primary guide to the exercise of discretion and warned that the striking of an action is extraordinary: “While the court always has the inherent jurisdiction to strike an action to prevent an abuse of process, it should not do so where a plaintiff has lost or destroyed evidence, unless it is beyond doubt that this was a deliberate act done with the clear intention of gaining an advantage in litigation, and the prejudice is so obviously profound that it prevents the innocent party from mounting a defence.”

And finally, the Court noted that there is no recognized civil duty to preserve evidence in Canadian law: “The issues of whether a party may be guilty of negligence where it destroys documents it had a duty to keep, or whether spoliation exists as an intentional tort, are not engaged in this case and any comment about whether the law should be developed in these areas should be left to a case where these issues arise from the facts.” (While the duty to refrain from intentionally destroying evidence has been addressed in the well-known Spasic Estate and Endean cases, whether there’s a positive duty to preserve evidence subject to the negligence standard of care is more significant and also less discussed.)

On the facts, the Court held that the chambers judge had erred in striking the action because there was insufficient evidence to conclude that the acts of destruction alleged were intentional and because it was not possible to make a determination on prejudice before the development of a trial record. It did, however, grant the defendant leave to examine the expert it accused of misconduct.

McDougall v. Black & Decker Canada Inc., 2008 ABCA 353.

The Ontario and BC privacy commissioners have released a practice tool for violence prevention at post secondary institutions.

The tool is important and helpful, but does tend to blur the distinction between disclosure of personal information collected in the course of providing health care and disclosure of personal information collected in the course of academic and non-academic administration. For example, the commissioners state very generally, “The disclosure of personal health information allowed by BC and Ontario privacy laws is also consistent with disclosure permitted by the rules governing medical professionals such as physicians, nurses and psychologists.”

While the “life trumps privacy” message communicated by the commissioners is a critical one for health care practitioners, university and college administrators and academic staff alike, to equate the standard for disclosure of personal information collected in the course of providing health care to the standard for the disclosure of other personal information would be a radical proposition. Universities and colleges should be cautious that the commissioners did not necessarily intend to make such a finely-pointed policy statement.

I have a strong interest in this topic. For my most substantive post on violence prevention at post secondary institutions, please click here.

Big lack of blogging lately.  It might take me another week of head-down work before I get time for extra-curricular reading, but we’ll see.

This is a second reminder about the OBA privacy and litigation section dinner on civil procedure and privacy.  It’s on November 19th from 5:30 pm (cocktails) to about 8:00 pm.  Liam McAlear and I will co-chair a panel discussion between Catherine Beagan Flood, Matin Felsky, Alex Cameron and members of our audience.

We have a prep meeting coming up (also over cocktails), so if you have any questions you want to put to the panelists please feel free to e-mail me or, if you’re not shy, comment below.

Here is the promo:

What’s all the hush-hush about?  Privacy and Civil Procedure:  Current Issues and Cases you need to know

Trends in communication and information management are giving rise to new issues in the litigation of civil claims.  When should a court make an order to reveal the identity of a person who has spoken harmful words anonymously?  In what circumstances should personal information be redacted from productions?  At whose cost?  How sensitive should parties and courts be about the disclosure of personal information in court filings and decisions given the trend towards increased accessibility of court records?   

Join our panel of experts as they reflect on the privacy issues arising in civil practice. The discussion will be based on the following current issues and cases.

• Identifying the anonymous defendant – BMG Canada Inc. v. Doe 
• Production of personal information within and across borders – Datatreasury Corp. v. Royal Bank of Canada
• Whole disk inspections and protective orders – Innovative Health Group v. Calgary Health Region
• Internet publication, personal privacy and the open courts principle – Moore v. Bertuzzi

Hope you can find time to come on out. Click here for information on how to register.

Happy Halloween!

Dan

Sorry for the lack of Canadian content this week, but here are some links of note.

• Jeremy Mittman, German Court Rules That IP Addresses are not Personal Information. A big issue that hasn’t been fully litigated in open court in Canada.  (Proskauer Rose Privacy Law Blog)
• Laywer2Lawyer, The New Federal Rule of Evidence 502. Following J. Craig Williams and Bob Ambrogi’s podcast is my favorite way to keep finger on the pulse of American legal developments. In this one, Guest Robert D. Owen delivers great substantive input on the new federal rule which lays a foundation for clawback and other agreements intended to limit inadvertent waiver of privilege. (Legal Talk Network)
• Richard Nagareda on Taylor v. Sturgell.  Taylor v. Sturgell is a case about one individual’s right to make an FOI request following another individual’s identical request and, more broadly, the so-called “virtual representation” doctrine. Although this podcast was recorded before the June ruling of the United States Supreme Court (summary here), it situates the issue in dispute very well.  It also includes an interesting argument for reckoning with a concept Professor Nagareda calls “embedded aggregation” – a problem associated with some claims that, based on their nature, will naturally tie the hands of subsequent claimants.  (The Federalist Society)

I FINALLY had a good surf last weekend, though not without effort.  It took one afternoon of groveling in shore-break, an hour of searching for lost fins in shore-break, several outside diaper changes, one missed afternoon nap, two flight change fees, some hugs and kisses to family who returned home without me and an unplanned “out of office” message to score a few hours of decent surf outside of Halifax on Monday morning. Work-related stress and family-related guilt had me bolting to the airport before my feet had thawed out (hence the second change fee) and missing what was later reported as the best session of the day, but that’s how it goes. Family and friends, you are awesome for supporting this obsession. We should all move to the ocean and work virtually!

See ya!

Dan

Peg Duncan has recently updated the e-Discovery Canada case law digest, and includes an interesting Alberta Court of Queen’s Bench decision from January 2008 called Design Group Staffing v. Fierlbeck. It’s about an employee who e-mailed himself a great number Alberta Treasury Branch records before departing from employment from a company who provided IT services to the ATB and the service provider’s very aggressive reaction. Any employer’s counsel will tell you that this is a very common occurrence.

The service provider applied for an Anton Piller order based on its concern about ATB client privacy and the risk of identity theft (though there was no evidence the defendant had any motive to perpetrate identity theft or sell the information). It turned out the records taken did not contain any client information. The Court criticized the service provider for its lack of diligence and vacated the Anton Piller.

It’s interesting to me how non-party privacy issues can play out in litigation. Was the service provider prepared to take whatever steps necessary to demonstrate its vigilance in protecting customer data to its client given its employee had caused a data breach? Or did it have its own motive for seeking an order and was the privacy claim simply a convenient justification for making a non-genuine demand? (I think it was the former in this case.) Where non-party privacy is engaged, should potentially affected individuals receive notice and have a right of standing? For another recent case in which these issues arise, see Datatreasury Corporation.

On September 26th, the Federal Court held that PIPEDA does not give employees of federally-regulated employers a right of access to e-mails concerning them that are sent between co-workers in their personal capacity and stored on the employers e-mail system.

The applicant, a former employee, filed a request for all e-mails “concerning” him. At the Federal Court, the primary issue in dispute was about whether “personal” (i.e. non-work related) e-mails about the applicant were subject to the right of access in PIPEDA.

PIPEDA does not include a traditional “custody or control” standard for access. Though the access principle refers to personal information “held” by an organization, the existence of a right of access turns on whether a request is for personal information that is collected used or disclosed by an employer “in connection with the operation of a federal work or undertaking.” PIPEDA also expressly excludes information that an individual collects, uses or discloses for exclusively “personal or domestic purposes.”

Mr. Justice Russel Zinn held that the personal e-mails sought were not collected in connection with the operation of a federal work or undertaking and were also excluded as e-mails collected, used and disclosed for personal or domestic purposes. The core of his reasoning is captured in the following excerpt:

First, in my view, the information is not being “handled” by Bell Canada. Like the bycatch of the cod fisherman, personal e-mail is the bycatch of the commercially valuable information that is being handled by Bell Canada. Secondly, to be information collected in connection with the operation of the business, requires that there be a business purpose for the information. There is none with respect to personal e-mails. In fact, from the viewpoint of organizations like Bell Canada, personal e-mails are refuse that take up valuable space and time. It is for this reason, among others, that organizations discourage or limit employee utilization of their computer systems for personal reasons.

Zinn J. also appears to have been influenced by the rights of the co-workers who sent and received the impugned e-mails and their interest in what has otherwise been called “mixed personal information.” He suggests that these individuals would be deprived of the personal and domestic purposes exclusion if PIPEDA was held to apply to their e-mails, hence framing the exclusion as a form of right. Notably, Zinn J. did not expressly consider whether Bell reserved a right to monitor “personal” e-mails under its computer use policy.

There are other very significant aspects of the judgement that relate to the nature of an organization’s duty to clarify the scope of a request and its duty conduct a reasonable search for responsive information.

On duty to clarify the scope of broad requests, Zinn J. stated:

I am of the view that the position stated by Bell Canada that Mr. Johnson “had a responsibility to focus his request” overstates the responsibility of an applicant making an access request. In my view, and in keeping with the practicality of the application of PIPEDA to a request that may suggest an extensive, costly and time-consuming search, the organization receiving a broad request such as that made by Mr. Johnson has two options open to it: (1) it can inquire of the party making the request if he can be more specific as to the information he is requesting, in which case the requesting party does have an obligation to cooperate in defining his request, or (2) it can conduct a reasonable search of information that it can reasonably expect to be responsive to the request. In this case Bell Canada chose the latter course.

And on the duty to conduct a reasonable search, he stated:

The search [Bell Canada] was required to conduct was a search that could reasonably be expected to produce the personal information of Mr. Johnson that, in the ordinary course, would fall under PIPEDA.

…

It cannot be seriously suggested that an organization has a responsibility to recover deleted or overwritten data in the absence of compelling evidence that it existed and that it can be recovered at a reasonable cost. Further, in my view, such a Herculean task should only be required to be undertaken, if ever, in circumstances where there is a critical need for the recovered information.

Johnson v. Bell Canada, 2008 FC 1086.