Case Report – Court upholds arbitrator order that stops call centre from recording calls… with reservations

Today, the Supreme Court of Nova Scotia upheld a labour arbitrator’s order that required the Halifax Regional Municipality to cease and desist from recording calls to its call centre for quality monitoring, coaching and dispute resolution purposes.

In resolving the employer’s application for judicial review, Wright J. displayed a remarkably honest application of the “reasonableness” standard of review by disagreeing with the arbitrator’s weighing of management versus employee interests but nonetheless upholding his decision as reasonable.

Though it did not affect the outcome of the application, Wright J.’s more legally significant finding was on whether the employee voice recordings at issue were protected as “personal information” under the applicable privacy legislation. He stressed that the recordings captured non-sensitive employee work product and, in the context, this feature of the recordings was more significant than anything personal that the characteristics of an employee’s voice might reveal (such as age or race).

It cannot be over emphasized that the recording of calls made to the call centre agents on the Primary Line is of a non-personal nature. The call centre agents answer inquires from the public about various municipal matters. There is no component of personal information in that. It is not recorded information about an identifiable individual within the meaning of s.461(f). Rather, the content of the calls, as earlier noted, is about such routine inquires as transit service times, tax bills, by-laws, parking information and municipal services. In my view, the question of whether voice recording in the fact situation at hand constitutes “personal information” cannot be decided irrespective of the content of those calls. Here, the content of those calls is undoubtedly of a non-personal nature made in the course of the performance of the job duties of these employees.

Halifax (Regional Municipality) v. Nova Scotia Union of Public and Private Employees, Local 13, 2009 NSSC 283.

Fair Procedure and Students at Risk

I wrote a client bulletin with the above-noted title that was published today. Here’s a teaser:

This university and college sector bulletin highlights an important and easily overlooked consideration in managing students at risk: protection of the procedural rights of students who are required to participate in medical assessments.

And here’s a link.

Case Report – Court says administrative tribunal can publish personal information

The Saskatchewan Court of Queen’s Bench issued a decision on March 9th that is significant to administrative tribunals and others with an interest in access to records of judicial and quasi-judicial decisions. The Court held that the Saskatchewan Automobile Injury Appeal Commission violates neither the Saskatchewan Health Information Protection Act, the Saskatchewan Freedom of Information and Protection of Privacy Act nor the Charter by publishing decisions that include the personal information of claimants.

The Commission hears appeals of adjuster decisions under the Saskatchewan Automobile Insurance Act. It is required to hold open hearings (subject to its own discretion to order otherwise), required to provide written reasons and required to keep records it considers necessary for the proper conduct of its business. Given the nature of its appeals, Commission reasons often include a description of evidence related to claimants’ diagnoses, prognoses and treatment programs.

The applicant moved for relief in Court after the Commission denied her request to forgo publication of its reasons for deciding her claim or, alternatively, redact her name, age, occupation and other identifying details from its reasons. She argued that disclosure was prohibited by Saskatchewan HIPA, Saskatchewan FIPPA and the Charter.

The Court found that the Commission’s adjudicative mandate necessarily implies the power to publish its reasons in the internet and then rejected all three of the applicant’s arguments.

Its most significant finding was on Saskatchewan FIPPA, where it held that the disclosure of personal information in reasons was permissible because the Commission’s written reasons are excluded from the Act as “material that is a matter of public record.” It explained:

I accept all of these three definitions of “public record”. The Commission is a public adjudicative body required to make and keep its decisions. Section 92 of the Regulations states that Commission hearings are open to the public unless the Commission orders otherwise. Its decisions are open to the public even without publishing them on the web. Further, s. 95(1) and 95(2)(d) places an obligation on the Commission to compile a record of a hearing that was held, which consists in part of the written decision of the appeal commission. It is common ground that the decision is on file at the Commission and accessible to the public. The decision of the Commission contains information prepared by a government institution which has a duty to inquire into the issues associated with the hearing and record its findings permanently.

Further, it seems illogical that members of the public could sit at the hearing and listen to all of the evidence but not have access to the decision of the Commission. The written decision is the last piece of the hearing process. Public access to decisions made by the Commission is important to assist individuals in presenting their claims and understanding the decision-making process of the Commission and to further the principle of public access to adjudicative bodies.

The Court also held that publication would otherwise be permitted under the provision in Saskatchewan FIPPA that authorizes non-consensual disclosures of personal information, in part because the personal information in reasons for decisions is collected for a purpose consistent to the purpose of publishing such information.

The Court’s treatment of the applicant’s Charter argument is also worth note. The Court dismissed a section 7 “security of the person” claim, stating “Section 7 does not protect an individual who is suffering from the ordinary anxieties that a person of reasonable sensibility would suffer as a result of being involved in an open adjudicative process.” In the alternative, the Court held that the publication of reasons did not violate the principles of fundamental justice in light of the open courts principle, which it stressed applies equally to administrative tribunals.

This decision must be understood in the context of the longstanding dialogue between the Saskatchewan IPC and the Commission about the publication of its decisions, and is remarkable in that it conflicts so strongly with the position taken by the IPC in a 2005 investigation report (here) and a paper it published in early 2009 (here). The IPC (who did not participate in this court case) made a number of recommendations in 2005 that the Commission initially refused to follow, though it eventually came into line by issuing an internet posting policy effective June 1, 2008. The Commission’s new policy contemplates publication of reasons with personal identifiers and identifying information removed, while also granting the public access to physical copies of unredacted reasons.

Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106 (CanLII).

CAISJA presentation on student appeals and related higher education student affairs issues

I had a great time this morning at pre-conference workshop for the annual Canadian Association of College and University Student Services conference. The workshop was organized by the new CACUSS academic integrity and student judicial affairs division – CAISJA. I love addressing professionals working in the higher education sector because attendees are always very knowledgeable and engaged. Today was no exception!

Here is a copy of my slides, which were just to put a little structured content into three hours of discussion moderated by my CAISJA hosts.

As promised to attendees, here is the Hicks Morley paper (written in 2005) on student appeals and here are some citations to recent and relevant case law.

Cotton v. College of Nurses of Ontario – On administrative fairness and mandatory medical assessments. See here for my case summary.
Zeliony v. Red River College – On hearing transcripts and the requirement to give reasons. The College’s reliance on unsworn witness statements (in part because witnesses said they were afraid to testify) is an important issue that is not addressed head-on in this award.
Lerew v. St. Lawrence College – On hearing transcripts and the requirement to give reasons.
F.H. v. McDougall – The Supreme Court of Canada on the existence of only one standard of proof in civil cases – the balance of probabilities standard.

Though it is technically neither an academic integrity nor a student judicial affairs issue, we did get into discussion on threat assessments, student privacy and non-disciplinary suspensions. Some materials on this topic are posted here (my CAUBO March 2008 presentation), here (comments made after the Kajouji case) and here (link to good podcast).

Thanks again to my CAISJA hosts. I hope this material is helpful and, for those who attended, look forward to keeping in touch!

Case Report – Divisional Court says reasons for ordering medical exam required

On June 3rd, the Divisional Court quashed a medical assessment order issued by the Ontario College of Nurses because the College did not provide the affected nurse with reasons for its order.

In accordance with the Health Professions Procedural Code, the College’s Executive Committee appointed a board of inquiry to assess the nurse’s capacity. The board of inquiry gave notice to the nurse of its intention to order her to submit to a medical examination (on the threat of suspension) because it had reasonable and probable grounds to believe she was incapacitated. The power to make this order is specified in the Code, as is the requirement to give notice.

The nurse made submissions through counsel, and included two medical opinions and statements from her colleagues that supported her capacity. Regardless, the board ordered an assessment and did not provide reasons for its order. The court award also says the College “refused” to provide the nurse with a record of its proceedings or file the record with the Court, though it did file an Affidavit in its response which attached all the material before it at the time it made its decision.

The Court quashed the order because the College breached the nurse’s right to procedural fairness. It considered that the privacy interest at stake weighed in favour of a high standard, and commented:

Individuals have a legal right to bodily integrity and medical privacy. The right is protected through privacy legislation and through an extensive body of case law dealing with circumstances under which an individual can be compelled to submit to medical examinations and other intrusions on bodily integrity.

…

The College submits Ms. Cotton had no reasonable legitimate expectation that the Board would give reasons for its decision. It states it has never been the practice at the College for a Board of Inquiry to provide reasons demonstrating reasonable and probable grounds to require a member to submit to a medical examination. We respectfully suggest that the College might wish to re-examine its practice where a medical examination is ordered.

The College further submits that a duty to give reasons is inconsistent with the role of the Board, which was performing a purely investigative function rather than an adjudicative one. We recognize that there may be functions of the Board that are investigative and which are not determinative of the rights of any party. However, an order requiring a person to undergo an invasive medical examination, subject to the penalty of suspension or revocation of licence for refusing to comply, is a determination of rights, even though it may be ordered for an investigative purpose. It is in this context that the duty to observe rules of procedural fairness, including the duty to provide reasons, arises.

Though the substantive basis for ordering a medical assessment is often litigated, judicial comment on the process of ordering an assessment is rare. The outcome in this decision is certainly driven by its specific factual context, but it nonetheless has some broader significance.

Cotton v. College of Nurses of Ontario, 2008 CanLII 26674 (ON S.C.J.).

One to watch – Blood Tribe at the SCC

The Supreme Court of Canada is scheduled to hear an appeal of Blood Tribe Department of Health v. Canada (Privacy Commissioner) on February 21, 2008. The case will present an opportunity for the Court to comment on a principle it first articulated in 1982 in Descoteaux v. Mierzwinski – that laws authorizing interference with solicitor-client privilege must be interpreted restrictively. Of perhaps greater interest, it will be the Court’s first opportunity to provide significant commentary on the Personal Information Protection and Electronic Documents Act.

The dispute arose when the respondent to a complaint alleging a failure to provide access to personal information refused to produce records of communications that it claimed to be subject to solicitor-client privilege. In demanding the records be produced, the Commissioner relied on the investigatory powers granted by section 12 of PIPEDA, a broadly-worded provision which does not expressly grant the power to order the production of records over which solicitor-client privilege is claimed.

Litigation ensued and the Federal Court held that the Commissioner had the power to order production. It did so by applying a purposive analysis, stressing the Commissioner’s “central role in achieving the important objectives of the legislative scheme.”

The Federal Court of Appeal disagreed with the lower court’s approach, which it found to be inconsistent with the Mierzwinski strict interpretation principle and the concept of solicitor-client privilege as a substantive rule of law. It stated:

In short, the reason express language is required to abrogate solicitor‑client privilege is because it is presumptively inviolate. The exception for solicitor‑client privilege in the PIPEDA is not what shelters privileged documents from disclosure. The law of privilege does that. The exception simply recognizes that privilege.

There are some finer points to the Federal Court of Appeal’s decision that may also catch the Supreme Court’s interest, including (1) whether the principles developed in interpreting the federal Privacy Act should be applied in interpreting PIPEDA and (2) what effect should be given to language authorizing the exercise of powers “to the same manner and to the same extent as a superior court.”

Blood Tribe is likely to remain relevant given that Parliament’s Standing Committee on Access to Information, Privacy and Ethics made a rather moderate recommendation in its recent Statutory Review of the Personal Information and Electronic Documents Act. Asked by the Privacy Commissioner to address the gap to her investigatory powers identified by the Federal Court of Appeal in Blood Tribe, the Standing Committee only recommended that PIPEDA be amended to expressly permit her to apply to the Federal Court for an expedited review of solicitor-client privilege claims.

Case Report – IPC asserts jurisdiction to scrutinize exclusion claim

In the first case to consider the new exclusion for research-related records in the Ontario Freedom of Information and Privacy Act, the IPC held that it has jurisdiction to order production of records claimed to be excluded and otherwise inquire into the claim. The University had resisted production of records in four requests where the research-related nature of the records was clear on the face of the requests.

Interim Order PO-2601-I, 2007 CanLII 39194 (ON I.P.C.).