Information Roundup – 15 October 2008

Here are some recent links of note.

Martin Felsky, Ontario Rules Amendments for July 2009 Contemplate E-Discovery. Martin gives the scoop on the pending Ontario civil rules amendments, which apparently will embed the concept of proportionality into Rule 1.04 and require parties to engage in discovery planning. (Ediscovery Canada)
Jonathan C. Bond, Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century. Mr. Bond argues for a new definition of “disclose” in the U.S. Privacy Act that would make clear that an agency discloses information when it makes it “substantially more accessible” than it had previously. Features a reflection on a recent claim for breach of privacy based on the publication of workplace insurance adjudication decisions. (George Washington Law Review 76:5)
Lew McCreary, What was privacy? This is an in-depth article from this month’s Harvard Business Review. Senior editor McCreary encourages business to understand and manage privacy issues. He captures the most business-relevant aspects of the current dialogue on privacy very well. (Harvard Business Review)

What can I say for myself right now? Hugo’s almost a year and a half now and is pretty amazing. He’s right into growling at things he identifies as scary. He doesn’t always get it right though, which makes me laugh. Like yesterday he growled back at a rather harmless and sad looking stuffed penguin that another child had left abandoned in our local parkette. Anyway, we’ve got another quick surf trip on the horizon, which should get me feeling more human after a beautiful but brutally-windless early autumn in Southern Ontario.

See ya!

Dan

Save the evening of November 19th for the OBA’s dinner panel on litigation and privacy

The OBA privacy and litigation sections are putting on an dinner that readers of this blog may be interested in attending 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. 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

Cathy is a litigator at Blakes who has represented media and civil liberties organizations on a number of significant information and privacy matters. Many of you know Martin as CEO of Commonwealth Legal and a charter member of Sedona Canada Working Group 7. Martin also has recent practical experience in managing complex cross-border discovery files and currently sits on the Canadian Judicial Council’s open courts subcommittee. Alex, from Faskens, was co-counsel in the BMG case and has more recently written Leading by Example: Key Developments in the First Seven Years of PIPEDA for the federal Privacy Commissioner.

This is a great panel and a very relevant subject, so we hope to see you there! Click here for information on how to register.

Case Report – Man QB quashes orders for production of media tapes

On August 27th, the Manitoba Court of Queen’s Bench quashed two Criminal Code production orders issued against the CBC and CTV. It held that the deficiency of the information as it related to the media’s privacy interest led to a flawed exercise of judicial discretion.

The order was for audio and video recordings of a press conference held at the Assembly of Manitoba Chiefs that the RCMP sought on a belief that they contained admissions by a man who had recently been shot and tasered in a confrontation with police.

The Court considered the sufficiency of the information in light of the discretionary factors for assessing the reasonableness of searching a media organization laid out by the Supreme Court of Canada in New Brunswick and Lessard. It held that the informant ought to have disclosed:

that the police had been given prior notice of the press conference but had chosen not to attend;
the possibility that the tapes might include one-on-one interviews given the media’s greater privacy interest in this type of content (even though the informant only later discovered that the tapes being sought contained one-on-one interviews with subject of his investigation); and
the existence of eyewitnesses to the admissions being sought (though such was obvious) and whether they were an adequate alternative source of evidence.

The decision stresses that the police ought to do their best to help issuing judges conduct the public interest balancing exercise required by the media search jurisprudence, an exercise made difficult given the media does not participate. The Court also suggested that issuing judges should issue reasons to facilitate effective review.

Canadian Broadcasting Corporation v. Manitoba (Attorney-General), 2008 MBQB 229 (CanLII).

Case Report – BCCA lays out discretionary factors for Criminal Code subpoena of reluctant expert

On October 3rd the British Columbia Court of Appeal heard an appeal of application to quash a subpoena that compelled an expert to testify against his wishes in a criminal trial. It rejected arguments for a general rule against compelling a reluctant expert to testify in a case where she has no prior connection as inappropriate given criminal defendants’ right to make a full answer and defence. Instead, it adopted the following rule:

In summary, then, in the case of compelling an expert’s attendance at trial under s. 698, having established that he or she is likely to give material evidence in the proceeding, the issuing judge or justice should further consider, at least, these matters:

(i)         the prima facie entitlement of the court to every person’s evidence, whether of fact or opinion;

(ii)        whether the expert has some connection with the case in question;

(iii)       whether the expert is willing to come “provided his image is protected by the issue of a subpoena”;

(iv)       whether attendance at court will disrupt or impede other important work that the expert has to do;

(v)        whether, and to what extent, the expert will be required to expend time and effort in preparing evidence for the court; and

(vi)       whether another expert of equal calibre is available.

This list is not exhaustive.

The Court also held (1) that defence counsel’s perceived competence and the potential for a negative impact on other matters in which the expert is engaged are not proper factors and (2) that proof of the necessity of the evidence is not required.

R. v. Blais, 2008 BCCA 389.

Case Report – ABQB says media has no right of access to exhibits at trial

On September 23rd, the Alberta Court of Queen’s Bench denied a mid-trial application made by the CBC for access to an audiotape played in open court. Madam Justice Moen engaged in considerable analysis of the applicable jurisprudence and held:

The open courts principle gives the public and the media a right to attend in open court and to report and publish widely what they heard and saw. Any limits on this right must be subject to the Dagenais/Mentuck test.
The open courts principle does not, however, give the public and the media a right to receive copies of evidence. Dagenais/Mentuck does not apply.
Mid-trial applications in criminal jury trials will generally work an unfairness on the parties and interfere with the trial process. Hence, they should only be entertained in “special circumstances.”
The onus in applications for access to exhibits should be on the media, who should be required give notice to all persons that may be directly affected by the broadcast of the recording and show that “extraordinary circumstances” weigh in favor of access.
In considering applications for access to exhibits, the Court should consider the property and privacy interests of third parties.

This decision comes shortly after the Court launched a new Audio Recording Policy, which allows accredited members of the media to record proceedings if they provide a signed undertaking to use the recording for verification purposes only.

R. v. Cairn-Duff, 1008 ABQB 576.

Case Report – Div. Ct. interprets doctors’ college investigatory powers broadly

On September 26th, 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 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. The Registrar 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.

The 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 applicants did not challenge the constitutionality of the legislation itself.)

The Court also dealt with the privilege against self-incrimination in finding that an investigator can compel a physician to submit to an interview. The Court held that neither the privilege against self-incrimination nor (implicitly) the right to silence were engaged given the purpose of an investigation. It said that the aim of an investigation is not to gather evidence for use in a subsequent prosecution but rather was, “to ensure appropriate regulation of the medical profession in the public interest.” In this regard, it suggested that the use immunity provision in section 9 of the Public Inquiries Act was also incorporated into the Code, through it declined to issue a declaration that the applicants would be immune because such an order was premature.

Gore v. College of Physicians and Surgeons of Ontario, 2008 CanLII 48643 (ON S.C.).

Information Roundup – 27 September 2008

Here three links to pieces on discovery and privacy and then two links to pieces that explain how information flows through the internet.

Shari Claire Lewis, Ups and Downs of Discovering Online Data. This is about the privacy issues that are now raised frequently by disclosure requests in claims relating to harmful online expression. (Law.com)
The Sedona Conference WG6, Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy and e-Discovery (Public Comment Version). The title kind of says it all. (The Sedona Conference)
Ralph Losey, Are we the Barbarians at the Gate? Ralph Losey’s commentary on the Sedona Conference cross-border discovery paper includes an impassioned call to bring U.S. privacy regulation in line with the rest of the world. Canada tends to get a decent rap on privacy, but like the U.S. our privacy regulation is sector-based and our jurisprudence on employee computer use favors near absolute employer control. On the other hand, our privacy regulation’s coverage is broad (though not universal) and I understand our regulation is based on a much broader conception of “personal information” than regulation in the U.S. (e-Discovery Team)
Matt Cohen and others, Behind the Browser: What You Need to Know About Current and Emerging Internet Technologies. The first part of this podcast is a simply awesome presentation by long-time internet expert Matt Cohen on how the internet works. From Stanford’s May 2008 Legal Frontiers in Digital Media conference. (Stanford University)
Craig Ball, Fixing Time and Date Values in E-Mail. A brief article explaining how date normalization relates to the form in which e-mails are produced. (Law.com)

I had a nice paddle today from Ashbridges Bay to Bluffer’s Park and back. I spoiled what would otherwise have been a rare purely physical world experience by listening to a couple of podcasts. Good ones though, and I commend them to you. They’re both from Wake Forest University’s Voices of Our Time conference on Why Work? Professions and the Common Good conference from March 2008. I listened to the great keynote by journalist David Ross entitled Making Sense of Modern Professional Life and the panel discussion entitled The Legal Profession and the Market Place. There’s some very good food for lawyer thought here on personal wellness and social and ethical responsibility.

Enjoy!

Dan

Ones to watch – Three good ones about information at the SCC

The Court reports that leave to appeal the Ontario Court of Appeal’s decision in R. v. National Post was granted this week. The case is about the circumstances in which journalists may claim a case-by-case privilege over their communications with confidential sources. Click here for my summary. The SCC docket number is 32601.

The Court also reports that the Ontario Court of Appeal’s decision in The Criminal Lawyers’ Association v. Ontario (Public Safety and Security) will be heard on December 11th. This is the case in which the Ontario Court of Appeal held that the public interest override clause in the Ontario FIPPA (and by implication the equivalent provision in MFIPPA) breached section 2(b) of the Charter because it did not allow an override of the law enforcement and solicitor-client privilege exemptions to the right of public access. The SCC docket number is 32172.

Finally, the Calgary Health Region has filed an application for leave to appeal the Alberta Court of Appeal’s decision in Innovative Health Group v. Calgary Health Region. This is an e-discovery case that is about how courts should exercise their discretion to order whole disk inspections. Click here for my summary. The SCC docket number is 32788. Framed as above, it wouldn’t be a bad issue to get some national guidance on, and the jurisprudence does reflect a range in attitudes, from the very pro-production (characterized by the slightly qualified decision in Hummingbird v. Mustafa) to the very pro-protection as in Innovative Health Group itself. If not of “public importance,” the case is certainly interesting, and draws in issues related to litigation and third-party privacy and the cost of discovery. We’ll see.

Case Report – E-mail leak does not result in waiver of privilege

In this June 26th Ontario Superior Court decision, the Court allowed a motion to suppress e-mails containing privileged communications that were filed by a former spouse after she received them from her former husband’s girlfriend.

After rejecting an argument that the e-mail communications were subject to the criminal intent exception to solicitor-client privilege, the Court went into detail on the waiver argument. Although there was a sharp factual dispute about how the e-mails were leaked, the Court held that the respondent’s best case – that the applicant had his girlfriend type e-mails to his lawyer and left such e-mails around the home – would not be grounds for waiver in the circumstances.

The Court stressed that waiver is a question of intent, and held that the applicant had a reasonable expectation of confidence that was breached by his girlfriend (i.e. he was not reckless to ask a friend for administrative help nor was he reckless to leave documents around a private home). The Court also stressed that the test for waiver requires a balancing of interests and that a court must assess all factors, including the “threshold relevance” of the impugned evidence, before allowing it to be admitted despite a valid privilege claim. In the circumstances therefore, the Court’s finding that the leaked e-mails had little probative value weighed in favour of its decision that they ought to be suppressed.

Though the decision is fact-specific, the Court goes on to make a rather principled statement about electronic documents and how they are hard to control, suggesting that protecting solicitor-client privilege requires a more forgiving application of the waiver doctrine.

Hat tip to Jennifer Normandin of Goldhart & Associates, who wrote a great and more complete summary of this case in this week’s Lawyers Weekly.

Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ON. S.C.).

Case Report – Arbitrator orders call centre to stop recording calls

Earlier this year, on April 17th, Arbitrator Veniot ordered the Halifax Regional Municipality to cease and desist from recording calls to its municipal call centre for quality monitoring, coaching and dispute resolution purposes.

The union grieved the implementation of a system whereby the Municipality recorded all calls to its call centre. It claimed a breach of the privacy protection provisions of the Nova Scotia Municipal Government Act and the collective agreement. The system was implemented after the Municipality had engaged in a successful program of customer service improvement. The evidence showed its call centre was “functioning well” at the time of the implementation, so the Municipality argued that the call centre attendants had little expectation of privacy, that it was simply supervising work product and that it was being diligent in its attempt to improve service.

Mr. Veniot rejected this argument and ordered the Municipality to cease and desist. It’s a lengthy decision with lots more in it than I will cover here. In my view these are the most significant features and findings:

Mr. Veniot finds the characteristics of a person’s voice is personal information, but does not consider the sensitivity of this information in the balance. He does not engage in an explicit analysis of whether the content of call centre employees’ communications are their “work product” or their personal information, though he appears to view it at personal information given his comments about the intrusiveness of monitoring “every single word” uttered on calls.
Mr. Veniot interprets the “necessity” standard for collection in the legislation strictly, distinguishing the text of the Nova Scotia statute from text of PIPEDA (which speaks of “reasonableness”) and implying that a necessity standard does not entail a balancing of legitimate interests. His approach is technical and focussed on language, and very different from the purposive and contextual approach taken by the British Columbia based on identical statutory language in the British Columbia Freedom of Information and Protection of Privacy Act.
Although finding there is no “free-standing” right of privacy, Mr. Veniot states that employees come into the collective bargaining relationship with a right to “some” privacy, and therefore, “the question is never whether that right is in the agreement – something [he has] never seen – but how and on what basis the employer can argue that employee [sic] have surrendered any portion of that right.”

This is the first case I’m aware of on the issue of recording call centre communications.

Halifax (Regional Municipality) and Nova Scotia Union of Public and Private Employees, Local 2 (Policy Grievance) (Re), [2008] N.S.L.A.A. No. 13 (Veniot).