Here is the paper I submitted in participating on a panel at the LSO’s Human Rights Summit last week. The title speaks to the content, which is about the wart that is the Divisional Court finding in Hooper v. College of Nurses of Ontario. Time for Hooper to go.
I’ve done a fair deal of enjoyable work on matters relating to a union’s right of access to information – be it under labour law, health and safety law (via union member participation in the health and safety internal responsibility system) or via freedom of information law. Today I had the pleasure of co-presenting to the International Municipal Lawyers Association on the labour law right of access with my colleague from the City of Vaughan, Meghan Ferguson.
Our presentation was about how the labour law right has fared against employee privacy claims. In short, it has fared very well, and arguably better in Ontario than in British Columbia.
I don’t believe the dialogue between labour and management is over yet, however, especially as unions push for greater access at the same time privacy sensitivities are on the rise. The advent of made-in-Ontario privacy legislation could be an impetus for a change, not because it is likely to provide employees with statutory privacy rights as much as because the new legislation could apply directly to unions. So stay tuned, and in the interim please enjoy the slides below.
On September 21st, the Information and Privacy Commissioner/Ontario held that a municipality breached the Municipal Freedom of Information and Protection of Privacy Act by failing to notify an affected person of an FOI request.
The complainant discovered that the municipality had released e-mails he had sent to councilors about a planning matter in responding to FOI requests and without providing notice. MFIPPA requires notification of a request for records containing personal information if the head has “reason to believe” their release “might constitute an unjustified invasion of personal privacy.”
The IPC held that the municipality had not met this requirement. It reasoned:
As indicated above, the County disclosed the complainant’s name, address and views and opinions about Hastings Drive without notifying him pursuant to section 21(1)(b). Given the nature of the complainant’s personal information at issue, in my view, the disclosure of at least some of this information might have constituted an unjustified invasion of his personal privacy.
In my view, the complainant should have been notified and given an opportunity to make representations as to why the Emails should not have been disclosed. As noted in Investigation Report MC-000019-1, except in the clearest of cases, fairness requires that the person with the greatest interest in the information, that is, the complainant, be given a chance to be heard. In this matter, he was not given that opportunity.
The complainant had sent his e-mails to politicians about a matter of apparent public interest. The standard for notification is low, but the notice requirement here was at least debatable.
Unfortunately, the IPC does not address the balancing of interests contemplated by the unjustified invasion exemption. For notice to be required there must be “a reason to believe” – a reason based on a provisional application of the unjustified invasion exemption. “Clearest of cases” is not the legal test, and it is wrong to notify simply because “at least some” information responsive to a request is bound to trigger the notification requirement.
This is a mild warning to institutions. There is a statutory immunity that offers some protection from civil claims for failure to notify, but the IPC has shown itself to be strict.
On May 14th, the IPC/Ontario dismissed a request for reconsideration based on an asserted change of circumstances, a somewhat common happening given the lengthy period of time it now takes to process an FOI appeal.
The IPC had earlier affirmed a decision to deny access to certain information about the OPP’s use of cell site simulators on the basis that the information could reasonably be expected to “reveal investigative techniques and procedures currently in use in law enforcement.” After the IPC made this appeal decision, the requester learned that the OPP had switched to a new model of simulator, apparently after she made her request and before the IPC made its decision. The requester asked for reconsideration so she did not have to start again (by filing a new request and potentially re-arguing an appeal). The requester argued the Ministry’s exemption claim could not stand in light of the “new evidence.”
Assistant-Commissioner Liang declined the reconsideration request, but only on the basis that the newly proffered evidence would not have led her to make a different decision in any event. Assistant-Commissioner Liang noted that the Ministry had not deliberately withheld key evidence, which the IPC has treated as a basis for reconsideration. She did not comment on whether the Ministry ought to have brought forward the change in circumstances or whether its failure to do so might warrant reconsideration.
Appeal hearings are about the propriety of an access decision that is made at a point in time, though can invite respondent institutions to make representations about prospective harms. It goes without saying that institutions should not misrepresent the state of affairs in existence at the time they file their materials with the IPC. And if they have made accurate representations and the circumstances later change, there should be no duty to bring those circumstances to the attention of the IPC and no consequence for failing to do so. This would be a very heavy and impractical burden to bear, and would do harm to the finality owed to respondents. Requesters can and should be made to file new requests that can be the subject of fresh consideration and new access decisions.
On December 27th, the Court of Appeal for Ontario issued a significant decision about the openness of meetings conducted by the governors of public bodies.
The matter involved a decision to go in camera made by a delegate of the Thunder Bay Police Service so it could deal with a police disciplinary matter – to be precise, a decision to extend the time limit for serving a notice of disciplinary hearing on several police officers for their suspect handling of an indigenous man’s death. The delegate applied the statutory test for closing a meeting as set out in section 35(4) of the Police Services Act. He rejected an argument that the more strict Dagenais/Mentuck test applied, reasoning that he was not charged with conducting a judicial or quasi-judicial proceeding.
The Court of Appeal agreed that Dagenais/Mentuck did not apply. It nonetheless held that the delegate erred by not accounting for section 2(b) of the Charter, which it had recently held governs access to police board meetings in a case called Lagenfeld. Justice Sharpe said:
In my view, that statutory test and not the Dagenais/Mentuck test governed the exercise of his discretion. However, the s. 2(b) right recognized in Langenfeld has a direct bearing on the exercise of that discretion. Through no fault of his own, the decision maker did not consider Langenfeld. The “principle that proceedings be open to the public”, recognized by s. 35(4), is considerably fortified by the s. 2(b) Charter right recognized by Langenfeld in relation to police services board meetings.
Doré, at para. 56, explains that the administrative decision maker is “to ask how the Charter value at issue will best be protected in view of the statutory objectives” and that the core of this “proportionality exercise” will require the decision maker “to balance the severity of the interference of the Charter protection with the statutory objectives.” As Doré explains, at para. 57, this proportionality exercise “calls for integrating the spirit of [the Charter’s s. 1 reasonable limits scrutiny] into judicial review”.
The Court remitted the matter to the delegate for reconsideration, stressing various contextual factors to weigh in the balance.
The overlay of the Charter on top of statutory criteria for closing a meeting is significant. Also significantly, the Court read the Police Services Act to empower the Board to make confidentiality orders incidental to a decision about whether to close a meeting in order to achieve proportionality – a reading it said flowed from the ability to close a meeting “in part.”
The Court creates a new (and ambiguous) requirement for closing meetings that likely applies to a wide number of Ontario public bodies.
On September 30th, the Federal Court of Appeal held that the Public Service Labour Relations and Employment Board ought not to have referred to witnesses by name in a disciplinary decision about a suspension for “inappropriate acts involving a number of young female subordinate employees.”
This was a second time the matter of the witnesses’ anonymity came before the Court. In 2017, it had held that the Board’s decision to publish witness names was unreasonable and directed the Board to re-weigh the interests at stake.
The Board again declined to refer to witnesses by initials, seemingly put off by the employer’s pre-hearing “promise” to the witnesses that their identities would be protected from publication. What the employer said to the witnesses, the Court held, was not right inquiry. For that and other reasons, it quashed the Board’s second decision as unreasonable and (extraordinarily) substituted its own judgement.
Here are two points of significance:
- the Court suggested that the (strict) Dagenais/Mentuck test applied by courts is the test to be applied by administrative tribunals like the Board; and
- the Court recognized the public interest in encouraging the reporting of inappropriate sexual behavior by protecting the anonymity of witness, comparing the interest to the interest in encouraging the reporting of sexual assaults.
Vernon Professional Firefighters’ Association I.A.F.F. LOCAL 1517 v Corporation of the City of Vernon is a well argued video surveillance case in which Arbitrator Dorsey held that a fire service properly employed video surveillance in response to a suspicion that documents had been taken from a filing cabinet in the (interim) Chief’s office. The surveillance captured two employees having “sexual relations,” an act for which they were terminated.
The Association’s theory was the decision to employ surveillance was a product of “paranoia and distrust” arising out of bad labour relations. The Employer argued the bad labour relations in its favour, ultimately convincing Mr. Dorsey that protecting its information was one concern, but determining who it believed had accessed the information without authorization was an equally legitimate objective in the context. It’s a decision that turns on its facts, though there are some other notable findings. Namely, Mr. Dorsey found that:
- the installation of surveillance in this context was an “indirect collection” of personal information under British Columbia’s public sector privacy legislation (para 79);
- the standard for employing surveillance under public sector privacy legislation and a collective agreement ought to be the same (para 239);
- having a meeting with staff about the the terminations was a legitimate means of addressing rumors and speculation about the terminations and did not invite a further breach of privacy as alleged (para 93).
Arbitrator Dorsey does suggest, problematically in my view, that surveillance evidence ought to be excluded if collected via “an unjustified employer invasion of employees’ privacy rights.” Like many arbitrators, Arbitrator Dorsey frames the power to exclude evidence as discretionary but links the exclusion analysis to one factor above all others – justification. If the exclusion analysis is to be undertaken reasonably, it must encompass “all relevant factors,” including the impact of any exclusion decision on the administration of (administrative) justice and ongoing labour relations.
Here’s some commentary I submitted in support of my panel appearance on Wednesday at the above-named OBA conference.
It appears there are not too many fans of the Toronto Star decision among administrative tribunal practitioners, though the tribunals themselves seem to be more ambivalent. I’m among those who don’t like the policy implications of Toronto Star. For insight please read my commentary.
On Wednesday I spoke about the practical impact of practicing under truly presumptive, court-like openness in which no adjudicative decision (with due process rights) stands between a requester and a client’s filings. In short, it will invite the application of a new analysis prior to making any filing. What in here is confidential? Can I compromise – making my client’s case without it? At what cost? Is it better to seek a confidentiality order of some sort? At what cost? Does the media require notice of my motion? At what cost? Did I mention cost?
I encouraged tribunal staff in attendance to think about how critical a concern privacy has become and how individuals expect and are owed, at a minimum, due process. In my view requiring applications for access (made on notice) is a model for access that’s more consistent with the object of administrative justice – specialized, low cost, accessible justice.
On June 18th the Court of Appeal for Ontario held that the Ministry of the Attorney General is not in custody or control of records in a Children’s Lawyer litigation file even though the Children’s Lawyer, for administrative purposes, is part of MAG. The finding turns on the Children’s Lawyer’s independence and the privacy interests of the children it represents. These kind of contextual factors are important to the custody or control analysis. As stated by the Court, “an organization’s administrative structure is not determinative of custody or control for purposes of FIPPA.”
This decision is consistent with other law that suggests records within an institution are not always in custody or control of an institution – e.g., certain faculty records and personal e-mails. Custody or control is therefore no simple concept to administer and is prone to dispute. At least for now IPC decisions will be subject to judicial review on the correctness standard, another (surprising) finding the Court of Appeal made in rendering its decision.
On May 16th the Court of Appeal for Saskatchewan held that the Office of the Information and Privacy Commissioner, Saskatchewan should not have required the University of Saskatchewan to produce communications that it claimed were subject to solicitor-client privilege.
The Commissioner began by inviting the University to provide evidence that supported its privilege claim. The University filed an affidavit from a non-lawyer stating that legal counsel had advised that “some” of the withheld documents are subject to solicitor-client privilege. It did not file an index of records.
This led the Commissioner to immediately request the records. Although the Commissioner had asked the University for a index of records, it did not ask again – an omission that the Court held to breach the principle that demands an adjudicator only review solicitor-client communications when absolutely necessary to assess a privilege claim.
This fact-specific decision illustrates how strictly the absolute necessity principle will be enforced. The Court also spoke about what privilege claimants ought to be required to present in support of their claims. In doing so, it suggested that an index that identifies records will ordinarily provide an adequate basis for assessing a privilege claim in the absence of any evidence suggesting a claim is “ill founded”.
University of Saskatchewan v Saskatchewan (Information privacy Commissioner), 2018 SKCA 34.