BC OIPC dismisses privacy complaint about conduct of tribunal litigation

On May 1st the British Columbia Office of the Information and Privacy Commissioner dismissed a complaint that alleged a law firm and its client violated BC PIPA by serving a seven-part application for non-party production on seven non-parties to a Human Rights Code proceeding (thereby disclosing more personal information than would have been disclosed in seven separate applications).

Most significantly, the OIPC held that the PIPA provision that states it does not “limit the information available by law to a party to a proceeding” does not limit the OIPC’s jurisdiction and, rather, “merely provides reassurance that PIPA does not restrict the availability of information to a party to a proceeding where that information is available by law.” The OIPC therefore needed to dismiss the complaint on other grounds – in this case based on finding of deemed implied consent and a finding that the disclosure was “required or authorized by law.”

The OIPC did come back to the “party to a proceeding” provision – section 3(4) – in dismissing the complainant’s proportionality argument. It said:

[77]        As I see it, the actions of parties in a court or tribunal proceeding – and whether those actions were necessary or appropriate in light of that forum’s governing law and procedures – is a matter best judged by that court or tribunal. I find support for this approach in s. 3(4) of PIPA. Section 3(4) states that PIPA does not limit the information available by law to a party to a proceeding. This provision ensures that PIPA does not interfere with, or override, statutory or common law processes or rules that make information available to a party to a proceeding.

[78]        Section 3(4) of PIPA requires that I interpret and apply PIPA in a way that does not limit the information available to PLG as a party to the legal proceedings before the Tribunal. In essence, the complainant is calling upon PIPA to censure, regulate and/or impose restrictions on what a party to a Tribunal proceeding can do to obtain information or evidence under the Tribunal’s Rules. I believe that a decision on my part prohibiting a party to a Tribunal proceeding from disclosing personal information in an application made pursuant to Rule 23(2) would, effectively, limit the information available by law to that party and run contrary to s. 3(4).

[79]        Thus, the issue of whether in this particular Tribunal proceeding the respondents complied with the Rules regarding applications for non-party disclosure is a matter that should be left to the Tribunal to decide. The Tribunal is an administrative tribunal empowered by statute to create the Rules that govern its proceedings and to enforce compliance with those Rules. Given it is the adjudicative forum where the complainant pursued her human rights complaint, it is best placed to understand the full context of what took place during its proceedings and to referee the parties’ behaviour.

This text is helpful, though the OIPC could have left litigants wider berth by reading section 3(4) as creating a form of privilege.

[Note that the HRTO did sanction the client (respondent) for serving its seven-part application by awarding the complainant $5,000 in costs.]

Mary- Helen Wright Law Corporation (Pacific Law Group) (Re), 2020 BCIPC 21 (CanLII).

BCCA – No privacy claim against lawyer

On January 9th, the Court of Appeal for British Columbia affirmed the dismissal of a claim against a lawyer that was based in part on his service of application materials and in part on his conveyance of information about the plaintiff in a casual conversation with another lawyer.

The application that became the subject of the claim was made in an earlier family law proceeding. It was for production of financial documentation from the plaintiff relating to seven companies in which he had an interest.

The defendant represented the plaintiff’s wife. He served the companies with application materials (a notice plus affidavit) without redaction and in an unsealed envelope. Apparently his process server left the materials with two unrelated companies in an attempt to affect service. The plaintiff also argued that the defendant should have crafted his application materials to protect the plaintiff’s privacy – serving notices “containing only information relevant to the particular relief that might concern each company.”

The Court held that the impugned action was deemed not to be an invasion of privacy based on section 2(3)(b) of the British Columbia Privacy Act, which states that the publication of a matter is not a violation of privacy if “the publication was privileged in accordance with the rules of law relating to defamation.” The defendant, the Court explained, was acting in the course of his duty to his client, and occasion protected by absolute privilege.

The “casual conversation claim” arose from a discussion the defendant had with another lawyer during a break in discovery in another case. The defendant said he represented a woman whose former husband had sold a business in Alberta for $15 million and that the couple had three young children. Another person who was present came to believe the defendant was speaking about the plaintiff.

The Court affirmed the trial judge’s finding that the plaintiff failed to prove the information disclosed was private and subject to a reasonable expectation of privacy. More significantly, it affirmed an obiter finding that that the defendant’s disclosure was not wilful.

Duncan v Lessing, 2018 BCCA 9 (CanLII).

Tribunal errs by ordering disclosure without redaction – right to redaction?

On November 28th the Nova Scotia Court of Appeal held that the Nova Scotia Workers’ Compensation Appeals Tribunal erred by ordering the disclosure of a worker’s entire file without redaction.

The matter was about a workplace safety insurance claim, and particularly whether a worker’s condition was caused by his work. The Tribunal made the order in response to an employer’s objection to various redactions made to a set of records in the possession of the Workers Compensation Board. Although the employer argued the redacted information was relevant, the Tribunal ordered the unredacted file to be produced because it lacked the resources to vet for relevance, because fairness and the “ebb and flow” of a hearing supported full disclosure and because of the difficulty in making relevance determinations.

Despite the obvious appearance of laziness, the Tribunal framed its decision as rooted in procedural fairness. In response, the Court said: “…there is no principle of procedural fairness… that a litigant who requests disclosure is entitled to see every document it requests, regardless of relevance and without a relevance ruling by an impartial arbiter.”

Implicit in this statement is a concern for the worker’s privacy interest. The Tribunal had recognized this interest in a policy manual that it disregarded in making its order, though there are aspects of the Court’s reasoning that suggest a more broadly based right to redaction.

The Court gave this guidance on how to vet for relevance:

The person who vets for relevance must keep in mind that material should be disclosed for its connection to the “proposition[s] being advanced” by the parties, to borrow Justice Rothstein’s phrase, and not merely to justify an anticipated conclusion on the merits of those propositions. The vetting official may not be able to foretell precisely how the evidence will be martialed. So the ambit of disclosure should allow the parties some elbow room to strategize for the engagement.

Baker v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2017 NSCA 83.

Arbitrator issues principled decision on identification of grievors and other complainants

On September 5th, Arbitrator Abramsky dismissed a motion to anonymize the name of an individual who had grieved harassment, discrimination and a reprisal.

In making its request, the Union rested heavily on the fact the grievance would invite the disclosure of the grievor’s medical information – information about a learning disability and back problems. It also argued that no purpose would be served by publication of the grievor’s identity.

Ms. Abramsky held that the open court principle applied to the statutory tribunal for whom she was sitting (the GSB in Ontario) and that openness was therefore presumed absent a “compelling reason.” In doing so, she endorsed the following statement about the identification of individuals who file serious complaints:

This rationale – that litigants who make serious accusations should not do so “from behind a veil of anonymity, assured that they will not be identified if they are found not to be credible, their allegations are rejected” – has significant resonance. It is very easy to make serious assertions and claims. When doing so – and pursuing such a claim – litigants should not be able to hide behind anonymity, absent a compelling reason to allow it. Confidence in the administration of justice – and the open court principle – requires it.

Ms. Abramsky also held that medical information can vary in sensitivity and that, in the circumstances, anonymization was not justified.

Ontario Public Service Employees Union (Cull) v Ontario (Health and Long-Term Care), 2017 CanLII 71798 (ON GSB).

IPC comments on use and disclosure of OSR in litigation

On June 15th, the Information and Privacy/Commissioner Ontario dismissed a privacy complaint that alleged a school board breached the Education Act and MFIPPA by producing a student’s OSR in response to his human rights application.

The Board produced the OSR and filed it in a brief of documents to be used at a pending Human Rights Tribunal of Ontario hearing, all pursuant to the Tribunal’s rules. The complainant objected, and in a preliminary hearing, the HRTO directed the complainant to consent or face dismissal of his application. The complainant did not consent, his application was dismissed and he subsequently filed a privacy complaint with the IPC.

The IPC held that MFIPPA prevails over the statutory privilege provision in the Education Act and that the IPC is therefore “not bound to consider section 266 of the Education Act in its deliberations.” It also held that the OSR was information “otherwise available” to the Board and therefore open to its use under the provision of MFIPPA that stipulates that MFIPPA “does not impose any limitation on the information otherwise available by law to a party to litigation.”

The IPC did recommend that, going forward, the Board refrain from unilaterally handling the OSR when its potential use and disclosure is in dispute: “… the Board should make efforts to seek direction from an administrative tribunal or court prior to disclosing the information contained within an Ontario School Record during the course of litigation.”

York Region District School Board (Re), 2016 CanLII 37587 (ON IPC).

Addressing the privacy interests of affected individuals

I presented today at the Canadian Institute’s program on advanced administrative law. My topic was about how to deal with the privacy interests of affected non-parties. Here are my slides, revised based on my evolving understanding of this (difficult) issue. My thesis as it stands: we need to develop a principled exception to the audi alteram partem rule that governs when affected non-parties get notice and right to be heard. Courts and admin law decision makers appear to be attracted to solution that rests on the involvement of an appropriate representative party, but the current solutions are not driven by any express principle.

Request for jury contact information dismissed

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for third-party production of the names, telephone numbers and home addresses of 800 people summoned to jury duty. The plaintiff in a slip and fall claim wanted this information to contact potential witnesses, a plan that Mulligan J held the plaintiff did not establish was necessary. Notably, Mulligan J also reviewed various authorities about the role of a criminal jury and held that, in the context, the contact information at issue was “core biographical information.”

I’m most interested about the Court’s sensitivity to the privacy interest and procedural rights of the affected 800 individuals. It apparently adjourned the first day of the motion and ordered the plaintiffs to serve the IPC/Ontario. The IPC chose not to attend, perhaps because it viewed attendance as inconsistent with its mandate. The Court referenced a recent Alberta case in which the Court of Queen’s Bench of Alberta appointed an amicus and directed it to give notice to a group of jury members (and not a large jury pool) whose privacy interests were at stake in light of a similar production request. I’ll be addressing the procedural dilemma posed in similar circumstances at the Canadian Institute’s upcoming “Advanced Administrative Law and Practice” conference. I’ve clipped the program below.

Champagne v Corporation of the City of Barrie, 2014 ONSC 6103 (CanLII).

Privacy claim survives based on allegation of pretexting

On October 23rd, the Ontario Superior Court of Justice allowed a borderline privacy claim to proceed because it alleged the deceptive use of personal information to obtain evidence for a family law proceeding.

The plaintiffs brought a motion to vacate a non-dissipation order on their developed property so they could build on another property. In support of the motion, one of the plaintiffs swore and filed an affidavit that included financial data that supported the need to mortgage the developed property.

The respondent to the motion (the former spouse of one of the plaintiffs) lived with a mortgage broker, who took some of the financial data and obtained a letter of interest that suggested construction financing on the undeveloped property was an option. The respondent filed the letter and succeeded in her response to the motion, at which point the plaintiffs took issue with the mortgage broker’s conduct and eventually filed suit.

Justice Hambly was most troubled with the misimpression allegedly given by the mortgage broker to the finance company, who said that it thought the mortgage broker asked for the letter on behalf of the plaintiff. Assuming that the mortgage broker was acting on behalf of the respondent’s counsel (as he pleaded), Justice Hambly said that is was not clear “that a party or a person acting on the instructions of a party can release private personal financial about another party derived from the court files in a family law action to a third party for the purpose of getting an opinion under the guise that he is acting in the other party’s interest without the other party’s consent.”

Rosati v Cornelio, 2013 ONSC 6461 (CanLII).

The wheels of justice must turn – intrusion upon seclusion claim dismissed

On November 27th, Justice Carole Brown of the Ontario Superior Court of Justice dismissed a intrusion upon seclusion and negligence claim brought against lawyers who had acted in the defence of a personal injury claim. The claim alleged the lawyers acted unlawfully by:

providing the plaintiff’s medical information to and requesting addendum reports from defence medical exports for the purposes of trial and discussing the contents of the reports at trial;
serving copies of a Rule 30:10 (third-party production) motion; and
obtaining the plaintiff’s university transcript for purposes of trial.

This is not surprising, though the university transcript was apparently obtained in advance of trial after service of a summons to witness. Justice Brown noted that the defendants did not deceive the summonsed witness and that, in any event, the plaintiff herself adduced the transcript at trial.

Baines v Sigurdson Courtlander, 2013 ONSC 6892 (CanLII).

Nova Scotia court orders hard drive review to disclose usage patterns

On February 8th, the Supreme Court of Nova Scotia ordered the forensic review of an injured plaintiff’s hard drive because it would likely contain evidence relevant to a claim that he could only work at a computer for two to three hours a day. Although the computer was used by others (perhaps through separate user profiles, though this is unclear on the record), the Court held that use by others went to the weight of the evidence, a matter to be assessed at trial. Notably, the order contemplates a search to be conducted by a third party under a protocol proposed by the defendant.

Hat tip to Barry Sookman.

Laushway v Messervey, 2013 NSSC 47 (CanLII).