CACEE Conference – The law and ethics of recruting in today’s wired world

I had the honour of presenting today at the Canadian Association of Career Educators and Employers national conference. My topic was called “The law and ethics of recruiting in a wired world,” and we spent most of the session talking about online speech. The discussion ranged and was great throughout, but the time we spent on recruiting and online speech was extremely enlightening thanks to the great attendee input.

I broke the recruiting and online speech issues into privacy issues and employment issues.

On privacy, I suggested that authorization, accuracy and openness are the most relevant fair information practices. I urged the participants to consider what reasonable steps a recruiter should take to ensure the accuracy of personal information collected from online sources and used in making recruiting decisions. I also suggested that the openness requirement demands that candidates know that their publicly available information may be collected in the recruiting process. On further thought, the necessity principle is also highly relevant, and I think recruiters are naturally inclined to respect the rule, “If the information is not needed, don’t ask the question.” Applying the necessity principle to the online search issue, it seems to me that such a recruiting tactic can only be justified where the job raises a reasonable possibility of conflict between an employee’s online presence and his or her job duties.

On employment law, I started with a thought about addressing foreseeable conflicts of interest at the outset of the employment relationship. For employees who have personal blogs, for example, I suggested that employers would benefit by assessing them for potential conflicting interests and resolving potential conflicts as part of contracting for employment. Sensible and fair, but doesn’t this entail looking into candidates’ online presence as part of the recruiting process? In this regard, my suggestion caught the audience slightly off-guard because they were all very wary of the potential for human rights liability associated with using the internet to screen candidates. True enough!

You see, recruiting processes are typically structured to minimize the risk of considering irrelevant and discriminatory factors. They are also purposely staged so that discriminatory factors that are relevant are considered later in the hiring process. Based on anecdotes from members of the audience, it seems to be that the online speech phenomenon is disrupting these processes and causing recruiters to lose control of the information that becomes part of an assessment. We heard stories of recruiters who are being sent information from groups supporting student candidates that use new media very creatively, but contain pictures and all sorts of personal information that a recruiter would never require of candidates. It’s not that this information is necessarily related to one or more of the personal characteristics protected under human rights legislation, but when you don’t know exactly what information you’re going to get there’s certainly a heightened risk of of poisoning your pool of assessment information with irrelevant information that could be used as the basis for a discrimination complaint.

The idea of Google searching candidates also raises difficult records management issues. A defendant in a hiring dispute wants to be able to say, “Everything we considered is in the file.” Add an internet search into the assessment process and, unless there is a rigorously-enforced and forensically sound protocol for recording the search on the formal record, the electronic discovery burden of defending a hiring dispute will be relatively significant.

Despite all the risks, I’m hesitant to take an absolute position against collecting information about candidates’ online presence. If a candidate has an online presence that could conflict with the fulfillment of his or her job duties, doesn’t the diligent employer take reasonable steps to find that out before entering an employment contract? One way to reduce the human rights risk is to conduct the search near the end of the assessment process as a form of background check. There are likely other means of managing the human rights risk, which is not to discount the steps that should also be taken in order to ensure respect fair information practices.

If anyone can work out a model that enables employers to use relevant and available information about candidates in a manner that respects individual privacy and human rights, it has got to be the great group of professionals from CACEE that I was able to join today. Again, it was an honour!

Case Report – Records ordered to be produced despite arguments made about youth privacy

On May 5th, the Ontario Superior Court of Justice ordered parts of a student’s Ontario Student Record and various records in custody of the police to be disclosed to a plaintiff in a civil action.

The lawsuit related to a violent incident by one grade seven student against another, who later sued the offending student’s guardian and others for an alleged lack of supervision.

In ordering the offending student’s OSR to be disclosed, the Court explained how the statutory privilege in section 266 of the Education Act has not been interpreted as a barrier to production, in particular when the student or his or her guardian is a party.

In my view [three cases] establish the principle that where a person’s school record is relevant and producible in accordance with Rule 30.10, and a party is either the student or the parent or guardian of the student, then the court should order the student (if an adult) or the parent or guardian to sign a consent and take all reasonable steps to have the record holder produce the record for the purpose of the litigation.

Regarding the police records, the offending student was never prosecuted, so the police did not oppose the motion and took the position that the Wagg screening process need not be engaged. The Children’s Lawyer argued, however, that records should not be produced because the police had no right to obtain any statement from the offending student because they were not investigating any offence and because the child was not afforded a right to counsel and to have a guardian present. The Court rejected this argument, stating:

The general common law rule is that evidence in civil cases is admissible regardless of how it is obtained. In criminal cases, this rule is overridden by the Charter where the evidence is obtained by the state. There appears to be an evolving concept that the court has the discretion to exclude evidence in civil cases if it is obtained in breach of the Charter. These propositions are discussed in Paciocco and Stuesser, The Law of Evidence, 4th ed., Irwin Law, 2005 at p. 355 ff.

Although making this statement, the Court held that, in any event, the admissibility of evidence should be determined at trial and potential inadmissibility is not a barrier to production. This is the same principle that underlies the limiting interpretation of section 266.

Lee v. McNeil, 2008 CanLII 20984 (ON S.C.).

Case Report – Arbitrator Brent’s teaching evaluation data award upheld

On May 22nd, the Divisional Court dismissed a judicial review of a February 2007 decision by Arbitrator Gail Brent in which she held that the University of Windsor did not violate its faculty collective agreement or the Ontario Freedom of Information and Protection of Privacy Act by publishing teaching evaluation scores on a secure network for access by students and other members of the university community.

It held that Ms. Brent was reasonable in construing the term “personal information” in the relevant collective agreement provision narrowly such that it excluded teaching evaluation scores. It also held, without deciding on the applicable standard of review, that Ms. Brent was correct in deciding that student evaluation records were excluded from FIPPA based on the employment-related records exclusion.

University of Windsor v. University of Windsor Faculty Association, 2008 CanLII 23711 (ON S.C.J.).

Case Report – No solicitor-client relationship formed in casual law office conversations

On May 20th, the Nova Scotia Court of Appeal affirmed a 2007 decision on a made-for-the-textbooks fact scenario in which a judge held that two casual conversations between a lawyer, another lawyer and the other lawyer’s wife did not give rise to a solicitor-client relationship.

The facts involve a partner and his associate whose wife was contemplating leaving her employment as a real estate broker.

The associate first had a conversation with the partner that was held to be “brief,” and likely lasted for less than 20 minutes. The associate admitted that he sought “off the cuff” advice on the partner’s “two cents worth” and at the same time sought an opinion about the qualities of his wife’s potential new business partner. The conversation did touch upon legal matters, however, including the wife’s obligation to give notice.

The second conversation happened when the wife attended the office and she and her husband intercepted the partner when he was on his way out to lunch. The wife testified that she attended the office to seek legal advice from the partner, but also admitted that she had no intention of retaining him as counsel on her impending departure. The subject matter of the second conversation was the same as the first, and the partner testified that he was just lending support to his associate.

The left employment and her former employer sued. In the course of pursuing its claim, the employer contacted the partner, who spoke openly about his meeting with the wife and his now estranged associate. The partner said, “If they had listened to me there would likely have not been a lawsuit.” The wife (with others) sued for breach of solicitor-client privilege.

Mr. Justice Boudreau of the Nova Scotia Supreme Court dismissed the claim in April 2007. He said:

I am conscious of the fact that a retainer does not have to be perfected for solicitor-client privilege to arise, but it is necessary that the prospective client be at least that, and that the lawyer’s professional opinion he sought in his capacity as such (see Wigmore at p. 554). I find that even this minimal requirement has not been established in this case. Ms. Cushing has indicated that she was not a potential client of Mr. Hood (See Descôteaux). The plaintiffs have failed to establish that Ms. Cushing attended at the office of Mr. Cushing (regarding the second conversation) in order to obtain a consultation from Mr. Hood in his professional capacity. There was no meeting arranged with Mr. Hood and the casual conversation occurred purely by chance.

Ms. Cushing did not say to Mr. Hood that she was there to obtain his professional legal advice. Also, Mr. Hood did not indicate what may be legally required but he simply gave his common sense thoughts on what may be a proper or ethical way to conduct business in a small town like Yarmouth. As I said, in the final analysis, the plaintiffs have failed to prove that a solicitor-client relationship existed at the relevant times.

The Nova Scotia Court of Appeal upheld Boudreau J.’s decision in a brief award.

Cushing v. Hood, 2007 NSSC 97, affirmed 2008 NSCA 47.

Emily Gould’s “Exposed”

If you’re interested in the social media and privacy issue you might like reading Emily Gould’s “Exposed” article, which ran in the New York Times Magazine last weekend. You might also like perusing some of the 1200 comments that the article has spawned.

While many of the commenters are highly-critical of Ms. Gould’s self-centred article about her career as a self-centred blogger, only a few I read acknowledged the irony of entering the public forum themselves in publishing a comment. This may very well demonstrate irresistibility of online expression and the power and relevance of the social media phenomenon. Yes it will shape the law of information and privacy, but it has even greater socio-cultural significance.

I am an obvious fan of Web 2.0 and its potential, but in reading this article it struck me that the extent to which we are relying on online experiences to supplant real world experiences is troubling. Take Ms. Gould’s use of instant messenger technology:

But because we were so busy, we continued to I.M. most of the time, even when we were sitting right next to each other. Soon it stopped seeming weird to me when one of us would type a joke and the other one would type “Hahahahaha” in lieu of actually laughing.

And then, “Depending on how you looked at it, I either had no life and I barely talked to anyone, or I spoke to thousands of people constantly.”

The very best comment I read was from “Flynn” from Los Angeles, who reminds us about what is real in our increasingly virtual world. He tells Ms. Gould, “Turn off the computer, drive to Coney Island and jump in the ocean. Cleanse yourself and start all over again. You won’t be missing a thing.” Must be a surfer.

Case Report – BC OIPC says 41 days too long for breach notification

On May 7th, the British Columbia OPIC issued an investigation report in which it held that the Ministry of Health breached the security measures provision of the British Columbia Freedom of Information and Protection of Privacy Act in circumstances involving the loss of an unencrypted magnetic tapes that contained that contained the personal information of British Columbia residents who received health care in New Brunswick.

The tapes were sent pursuant to the provinces’ reciprocal billing agreement and contained the following personal information: gender, personal health number, birth date, fee code for medical service received and the practitioner number of the health care provider. They were mailed on October 3, 2007 and identified as missing October 25th. Notification to individuals and an offer to pay for credit protection services costing up to $200 was sent on December 11th, about a week before the courier company finished its investigation into why the package was lost.

The OPIC held that the Ministry breached the Act in light of the following actions:

sending data on unencrypted magnetic tapes (even though the data on the tapes would not be highly accessible given the near-obsolesce of the medium)
not requiring the sender to give notification of when the package would be received and not requiring the sender to use a courier with a tracking service (which contributed to the delay in discovering the package had been lost)
not instructing the sender to refrain from sending another unencrypted tape while the incident was still under investigation
taking 41 days to notify individuals of the breach

The OIPC also held that the Ministry did not follow best practice by only notifying the OIPC shortly before it gave notice to the affected individuals. It expressed a desire to help public bodies develop effective strategies to mitigate the risk of harm flowing from data breaches.

Investigation Report F08-02, 2008 CanLII 21699 (BC I.P.C.).

Case Report – IPC says personal information in OSR shall not be released

On April 11th the IPC/Ontario denied a parent’s appeal for access to information about an incident that led to the suspension of two students, and in doing so made a significant statement on a student’s privacy interest in information contained in the Ontario Student Record.

The records at issue were about two students other than the parent’s child, so the Board claimed they were exempt based on the exemption in section 14 – i.e., it claimed that disclosure would constitute an “unjustified invasion of privacy.” It also argued that disclosure should be presumed to constitute an unjustified invasion of privacy based on section 14(3)(d) of MFIPPA (the “educational history” presumption) because the records had been included in the OSR pursuant to the Ministry’s Violence-Free School Policy. The IPC acknowledged that the OSR is “the core of a student’s educational history” and held that the presumption applied.

It also rejected the requester’s claim that the “public interest override” applied. Although it recognized that a parent’s interest in ensuring a safe environment for his or her own children and other children was a “compelling public interest,” it did not find that this interest outweighed the special privacy interest of youth at risk:

I note that Canadian legislation aims to protect young people from negative publicity about activities that may not reflect well on them. This policy initiative clearly underlies significant provisions about non-publication of information found in the Youth Criminal Justice Act.

Order MO-2291 (11 April 2008, I.P.C./Ont.).

Information Roundup – May 24, 2008

Finally a beautiful weekend in Toronto! Here are some things I’ve read recently that you might find interesting.

Alan Finder, “At One University, Tobacco Money is a Secret.” This is about a restrictive research funding agreement at Virginia Commonwealth University. It includes abnormally strict confidentiality provisions that have drawn some criticism. (New York Times)
Peter Timmins, “NSW ADT sticks to ‘disclosure to the world’ but policy needs rethinking.” Mr. Timmins lays out some Australian law on the “disclosure to the world” principle, a privacy-protective principle raised in access to information law that deems the good intentions of a requester to be generally irrelevant. (Open and Shut)
Information and Privacy Commissioner/Ontario, “2007 Annual Report.” Most interesting for me is the comment on privacy versus security in light of Virginia Tech and other recent events. Ms. Cavoukian says, “And our attention is drawn away from real issues at hand: bureaucratic inertia, misguided policies, inefficient practices, and poor judgement.” I don’t think this comment was meant to be a critique of our own educational institutions, who all can be seen to be working hard on this issue, but is nonetheless quite a pointed call to action!
Linda Greenhouse, “Supreme Court Upholds Child Pornography Law.” A news report on the United States Supreme Court freedom of expression case (R. v. Williams) from last Monday, which the Times has also criticized. (New York Times)

I made contact with Peter Timmins through this blog, and have since been following his Open and Shut freedom of information and privacy blog. I like the idea that blogging can help build a contact with someone almost exactly half-way around the world with similar interests. I also have a soft spot for Australia because after I articled Seanna and I spent a year there travelling around and camping. We had this idea that we could live on a $5 a day food budget, and still remember standing outside of a MacDonald’s debating about whether we should treat ourselves to an ice cream cone. We also drank a few $4 boxes of wine on that trip! An experience I’ll never forget, and an extremely beautiful country. Check out Open and Shut sometime.

See ya!

OBA Eye on Privacy Published

The OBA has published its privacy law section newsletter – Eye on Privacy. I wrote a short article called “Recent Cases Illustrate the Polarity of Privacy Rules for Litigants.” It questions whether the policy of absolute openness regarding filed discovery transcripts conflicts with the policy underlying the deemed or implied undertaking rule by juxtaposing the recent Juman v. Doucette and Moore v. Bertuzzi cases. Here’s a link, but it might not be live for long because the OBA password protects archived editions of its newsletters. Check it out now, and please consider becoming a member!

Case Report – OCA outlines procedure on an application to quash a sealing order

In a decision issued yesterday, the Ontario Court of Appeal declined to quash sealing orders issued in respect of search warrant materials, in part because the court record was not suitable for appellate review. The outcome is largely fact-driven, but the Court did explain in general terms how procedure on application to quash a sealing order should be managed to ensure a full and fair hearing and a court record that supports appellate review. It said that, in general:

the Crown should prepare a redacted version of the materials
the Crown should prepare a page-by-page index of the materials redacted in tabular form, with a general description of each portion that has been redacted and the grounds for its redaction
the Crown should provide the redacted materials and the index to applicants and deal with any conditions or restrictions on this disclosure by way of preliminary motion if necessary
the Crown should provide a highlighted (rather than redacted) version of the materials to the court to facilitate review
the judge should consider each claim separately and use the index to provide an organized set of reasons
if it is clear the judge’s reasons will reveal information to be sealed, he or she should consider preparing and releasing a redacted version of the reasons and consider who will receive the unredacted version on what terms

The Court said this process, and in particular the requirement on the Crown to produce a index with its grounds, “reflects the presumption that once a search warrant has been executed, the warrant and the information upon which it is based must be available to the public unless it is demonstrated that the ends of justice would be subverted by the disclosure of the information.”

R. v. Canadian Broadcasting Corporation, 2008 ONCA 397.