On May 9th, the Alberta Court of Appeal issued a split judgement that touches on the scope of confidentiality that is waived by the act of filing an expert report in court. The majority held the filing of a report only waives confidentiality as between the litigant and its expert in the content of the report itself. The minority held that a person filing an expert report waives confidentiality in all information in the custody of the expert that is relevant and material to the dispute in which the report is filed.

This was a case about an expert report written by an accounting firm for a woman engaged in a child support and custody dispute (the “complainant”). The firm traced her husband’s assets and drafted a preliminary report, which the complainant filed in court in support of her position in two proceedings. This action, which the firm claimed she did not have authorization to take, led to a series of events that culminated in complaint by the woman to the Institute of Chartered Accountants of Alberta.

After viewing the report, the husband (also an accountant and familiar to the firm) then called the author of the report to complain about its quality. The author wrote an e-mail to the managing partner which stated, “If Danny feels we have slighted his reputation, we have not.” Soon after, the firm decided to withdraw the report. It took the position that withdrawal was justified because the report was filed without its authorization and the complainant’s account was unpaid. It told the husband around the same time it sent a letter to the wife, who heard about the withdrawal through the husband’s counsel before she received the letter. Later, in response to a summons issued by the husband, an accountant from the firm swore an affidavit to confirm the withdrawal.

In an award written by Picard J.A., the majority of the Court of Appeal affirmed the Institute’s findings of professional misconduct on a “reasonableness” standard of review. She first affirmed a finding that the author’s e-mail, despite being sent internally, was “false and misleading” and constituted a breach of the professional rule against making such statements. Picard J.A. read the rule broadly; since it didn’t exclude internal communications, she held that it applied to them.

Picard J.A. also affirmed breach of confidence findings that were based on the firm’s direct communications with the husband and its affidavit. She rejected the firm’s reliance on the rule governing litigation privilege that deems privilege to be waived for all information relevant and material to an expert report filed in court. She held this was a rule about litigation privilege and was not incorporated into the Institute’s confidentiality standard, so upheld the Institute’s finding that the firm acted improperly by disclosing information about the terms and reasons for the report’s withdrawal, the state of the complainant’s account and its relationship with the complainant.

Slatter J.A. wrote a very strong dissent.

He first took issue with the internal e-mail finding. He held that the Institute’s interpretation of its “false and misleading” communications standard would create a form of absolute liability for bad opinions and would also prevent firms from discussing the resolution of complaints. His reasoning speaks to a form of privilege:

The decision of the Appeal Tribunal would have a chilling effect on the ability of any firm of accountants to conduct open and frank inquiries about the conduct of its members, and the quality of the work that had been completed for any client. Any partner (like Mr. Nelson) who attempted to defend his work could be found guilty of professional misconduct if it turned out later that he was mistaken. Any partners who shared and repeated the opinion that the work had been properly done would likewise potentially be subject to discipline…

The Complaints Inquiry Committee, the Discipline Tribunal and the Appeal Tribunal all play a key role in maintaining the standards of the accounting profession. However, the first line of defence of the standards of the profession must be with the professionals themselves and with their firms. Accounting firms must be free to make inquiries about the quality of their work and the conduct of their partners, without fear that if they make statements, or express opinions, subsequently found to be inaccurate they would be subject to discipline. Penalizing a firm for such statements is counter-productive.

Slatter J.A. also objected to the confidentiality findings. He held that the Institute’s rules should not be read in conflict with an expert’s duty to the court. He held that the fact that the report had been withdrawn, the terms of the retainer, the fact that there was an alleged breach of the retainer, that the firm had ceased to act for the complainant, that it was prepared by an articling student, its belief in the suitability of the report as evidence and even the status of the complainant’s account were all material and relevant facts in the legal dispute, and therefore were the subject of an implicit waiver of confidentiality. On the timing of the disclosure to the husband, he said:

It is true that Mr. Preston disclosed this information to Mr. Dalla-Longa on the telephone prior to advising the complainant. Mr. Dalla-Longa undoubtedly caught Mr. Preston by surprise when he telephoned to inquire about the report four years after it was prepared. But when Mr. Dalla-Longa advised Mr. Preston that the report had been filed in court, the latter was entitled to proceed on the basis that confidentiality had been waived. Experts should be encouraged to make timely disclosure of the information that underlies their reports, to avoid surprise and adjournments, and to promote settlement discussions. The rules should not be construed to require a court order before an expert discloses his or her working papers, or to require or encourage experts to avoid producing information until they are actually in court, on the stand, and under cross-examination. Providing the limited information involved to Mr. Dalla-Longa was at most a breach of business etiquette that does not warrant discipline.

Also of interest, the majority and minority concluded that a different standard of review applied based on the standard of review analysis recently endorsed by the Supreme Court of Canada in its landmark Dunsmuir decision. The majority supported a reasonableness standard and the minority one of correctness.

Deloitte & Touche LLP v. Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee), 2008 ABCA 162.

Today was a windsurfing day in Toronto.  Philip Soltysiak was out at Cherry Beach, and I tailed him around watching for a while.  It seems like Philip went from being a ten year old that came up to my waist to to an absolute super-ripper overnight.  He’s competing on the freestyle world tour this year and will no doubt do Canada proud.

Here are my most notable reads of the week:

• Sam Bayard, “Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact.”  A report on a now-settled departing employee and free speech case rolled into one.  It details a November 2007 California decision no a summary judgement motion that dealt with whether an article written by a departed journalist and not published his newspaper could be fairly used by another newspaper in reporting on the journalist’s departure.  (Citizen Media Law Project)
• Ralph Losey, “The Days of the Bates Stamp Are Numbered.”  This picks up on an great law review article Mr. Losey wrote last fall and some recent commentary on Law.com, both about the use of hash values in e-discovery.  (E-Discovery Team)
• Peter Applebome, “Trying to Flesh Out the History of a Family That Was Minus One.”  This probes at an FOI policy issue that has recently been addressed in our Ontario FOI legislation with the addition of a new “compassionate reasons” exception  – the right of an individual to seek personal information about a deceased relative. (See here for more on the exception.) Our health privacy legislation also has a slightly narrower exception to permit (but not necessarily require) health information custodians to disclose the circumstances surrounding the death of an individual.  (New York Times)

Enjoy!

British Columbia arbitrator James Dorsey recently considered what personal information needs to be disclosed to fulfil the purpose of a collective agreement clause that gives a union access to information to assess the propriety of a job competition.

This award follows a 2005 judgement by the British Columbia Court of Appeal in which it held that the purpose for disclosing bargaining unit members’ personal information to the union as contemplated by the clause was consistent with the purpose for which it was collected and therefore permitted under the British Columbia Freedom of Information and Protection of Privacy Act. The Court of Appeal also held that only what is necessary to the purpose should be disclosed to the union, and perhaps unfortunately, said that “personal identifiers” should be redacted from the disclosure.

Following the Court of Appeal’s judgement, the employer applied a very literal and narrow view of the union’s right to “applications” and a very literal and broad view of the Court’s comment on redacting personal identifiers. Arbitrator Dorsey held the employer’s position was improper given the purpose of the access to information clause.

He held that the union’s right to “applications” gave it an entitlement to resumes, interview questions and responses, score sheets, and essentially all other records collected and used in the application process except reference information. He also held that the Court of Appeal’s suggestion to redact personal identifiers did not allow the employer to redact all information that would tend to identify individuals. Instead, he said:

When using the term “personal identifiers” in this context, the Court of Appeal meant information that is specific to a unique individual. This includes names and contact information, such as postal, email and other addresses and telephone numbers; passwords, social insurance, drivers licence, care card and financial numbers; and, in the current world, biometrics. This is information that is often guarded by individuals to avoid identify theft.

Ontario employers have generally been unsuccessful in resisting disclosures required by labour law on the basis of employee privacy rights.

Re Canadian Office and Professional Employees Union and Coast Mountain Bus Co. (7 September 2007, Dorsey).

[I picked this case up from a Lancaster House bulletin. Lancaster House is a publishing and conference company that heavily focuses on labour law. Thanks!]

The Ontario and British Columbia Privacy Commissioners issued a joint statement today in which they commit to issuing a joint publication aimed at clarifying the role that privacy laws play in managing health and safety risks. Mr. Loukidelis says, “Individual cases can be fuzzy, but if someone uses common sense and in good faith discloses information, my office is not going to come down on them.” The focus of this positive initiative seems broader than campus safety, but the statement does mention Virginia Tech and the recent suicide at Carleton University. For my coverage of this issue, see here.

In a judgement released today, the Ontario Court of Appeal interpreted the section 2(3) application provision of the Municipal Freedom of Information and Protection of Privacy Act and held that the City of Toronto Economic Development Corporation is deemed to be part of the City of Toronto for the purposes of the Act.

TEDCO is an OBCA corporation that is wholly owned by the City.  The City appoints all TEDCO directors, who in turn elect or appoint all TEDCO officers pursuant to a by-law.  The Court held that all of TEDCO’s officers are “appointed or chosen by or under the authority” of the City as contemplated by section 2(3).  It based its decision on the ordinary meaning of the word “authority,” the purpose of access to information legislation and the non-technical character of the language used in section 2(3) – marked by the phrase “appointed or chosen.”

While the judgement is confined in its significance, the Court’s reasoning on non-technical language supporting a non-technical interpretation of other proximate language seems worth a note to self.

City of Toronto Economic Development Corporation v. Information and Privacy Commissioner/Ontario, 2008 ONCA 366.

The Ottawa Citizen published an article today called “Lessons to learn” on the student-university duty of care as a follow-up to the Nadia Kajouji suicide at Carleton University.  Pauline Tam does a very good job of going deep into some of the complexities, and even received some input from American expert Peter Lake.  I’m also quoted on the duty of care issue and the limits of privacy law.  

As Anne Cavoukian has recently written in response to some commentary on the Carleton suicide, privacy law is not absolute. From how I was quoted it’s not exactly clear what the precise standard for disclosure is and, in fact, there are two standards for “health and safety” disclosures under Ontario law.  Under FIPPA – which governs personal information a university or college manages in its ordinary administration – there is a “compelling circumstances” standard. Under PHIPA – which governs health care relationships, including health care services provided by universities and colleges – the standard is higher, essentially a “serious and imminent” harm standard.  

One of the things that has been lost in some of the recent commentary is that there are two different standards, the latter standard creating a special and important “zone of privacy” within which a health care relationship is situated.  There’s very good reason for this. After all, we want students at risk and others who need care to seek treatment, and a strong guarantee of confidentiality is a necessary, indeed fundamental, part of making treatment accessible.  Outside of health care (think of information known by a residence don, faculty members or members of the administration) the standard for disclosing information to prevent harm should be taken seriously, but is lower and should be lower.  

I’ve spoken and written recently about the need for objective threat assessment procedures to balance the duty to provide a safe campus environment against the duty to protect individual privacy.  For more on my view see this post here and its attachments.