SKCA lays down law regarding redaction of producible documents, orders disclosure of complainant’s identity

On October 11th, the Court of Appeal for Saskatchewan ordered a defendant to produce an un-redacted copy of an e-mail, thereby providing the plaintiff with the identity of an individual who had reported him as a potential threat.

The Court reviewed the Canadian jurisprudence on redacting information from producible documents, and adopted a modified version of the prevailing view (outside of Alberta and Nova Scotia):

[55] In summary, a party seeking to justify a redaction from a producible document must show that: (a) the information removed from the document is not relevant to an issue in the action; (b) there is, in the evidence or record, a compelling reason for the redaction; and (c) the existing protections provided for in the Rules, and as may be supplemented by other measures, are insufficient to protect the interest that is said to justify the redaction.

The underlying action was brought by a former employee of SaskPower . SaskPower had received a bomb threat, and as part of its response, identified the plaintiff as a suspect to the local police. The plaintiff sued SaskPower for malicious prosecution and breach of privacy.

SaskPower produced the internal e-mail that identified the plaintiff as a threat, but redacted the name of an employee who had earlier raised concerns – “However [redacted text] came to me with concerns (even before we were aware other the threat came from someone with an accent).”

The Court dismissed the defendant’s argument that relied on informer privilege because SaskPower was not the police and held (in a rather cursory manner) that SaskPower had not met its burden.

The outcome is a good illustration of the test, which is a one-way test that puts the burden on the party resisting production. If the test put more emphasis on the value of the evidence to the proceeding (and balancing), there may have been a different outcome given the public interest in fostering the making of these types of reports.

SaskPower has nice, simple facts for an attempted appeal, the law of production has been in flux in the last decade, and the differing Alberta and Nova Scotia law might help.

Omorogbe v Saskatchewan Power Corporation, 2022 SKCA 116 (CanLII)

IPC decides on request for threat assessment records

On June 30th, the Information and Privacy Commissioner/Ontario issued an interim order regarding a request for records of a school board’s threat assessment process – a request made by the student who was the subject of the assessment. 

The IPC held that input given by student witnesses was exempt because its disclosure would constitute an unjustified invasion of privacy and that opinions expressed by members of the board’s threat assessment team were exempt because their disclosure could reasonably be expected to threaten the members’ safety. This is decision rests on the facts before the IPC in this case, though sets out a roadmap for shielding the most sensitive information in a threat assessment file.

The IPC decided to give notice to staff members before deciding whether information related to them (other than opinions) should be released. The matter continues. 

Toronto Catholic District School Board (Re), 2017 CanLII 45048 (ON IPC). 

No relief for victims of harassment – Ont CA

I’ve written here about the difficult position an employer/organization is placed in when its employees are harassed by “outsiders.” On July 20th the Court of Appeal for Ontario illustrated the difficulty by affirming a decision that denied relief from such harassment that a municipality (and its mayor) sought on behalf of the mayor, councillors and staff. The decision suggests that an employer’s duty to provide a safe and harassment free environment provides no basis for a civil remedy. 

Rainy River (Town) v. Olsen, 2017 ONCA 605.

Ontario claim attacking a report of concerning behavior and university response may proceed

On December 20th, the Ontario Superior Court of Justice dismissed a motion to strike a defamation and negligence claim that arose out of a student’s report of concerning behavior to her university.

The plaintiff alleges he was wronged by the student’s report of the following facts and the university’s further (and allegedly negligent) “reporting” and “publication” of the following facts (as summarized by the Court):

  • Two weeks earlier the plaintiff had approached the individual defendant after class and advised her he really liked her, had strong feelings for her, and wanted to pursue his feelings in a relationship knowing she had a boyfriend.
  • That the plaintiff told the individual defendant he was not able to sleep, paced in his bedroom all night to fall asleep, and also advised her he could not live without her.
  • That the individual defendant was concerned for the plaintiff’s health as he might hurt himself and did not seem to have any friends or family in the area.
  • That the individual defendant had reported that the plaintiff had asked her out four times and had said things that made her feel uncomfortable.

The Court held that there was no basis for concluding the claim was about an academic matter within the university’s exclusive jurisdiction. It also held that the claim, as pleaded, appeared to disclose a reasonable cause of action.

This preliminary decision is of no great significance, though the issue raised by the claim itself is important to post secondary educational institutions. Colleges and universities in Ontario and elsewhere have worked hard to encourage community members to report concerning behavior so it can be properly assessed and managed. Notably, in this case the university and the student defendant are jointly represented.

Thode v University of Ottawa, 2012 ONSC 7284 (CanLII).

Case Report – Order to attend assessment following employee’s aggressive outburst not discriminatory

Yesterday, the Court of Appeal for the Yukon Territory affirmed a decision of a Yukon Human Rights Board of Adjudication. The Board had held that an employer did not discriminate against an employee with a bipolar condition by suspending him pending a medical assessment. It held that the employer ordered the assessment based on an observation of objectively concerning behavior rather than on any stereotypical assumptions about the employee’s disability:

Whether Mr. March’s conduct was disruptive and inappropriate or not was a question of fact. The evidentiary facts were largely undisputed and the primary task of the Board was to resolve the conflicting interpretations and decide whether Mr. March’s conduct was disruptive and inappropriate. The issue involved an individualized assessment of particular facts. The Board heard the evidence and concluded that Mr. March’s conduct was disruptive and inappropriate and the respondents acted reasonably in the circumstances in removing him from the workplace pending a medical assessment. The action taken was temporary and responsive to the disruptive conduct and not an arbitrary reaction attributable to a discriminatory stereotyping of his disability. Instead, it was directed to ascertaining the cause of his conduct, and deciding how it should be addressed.

Though employers do have a general right to request medical information in circumstances similar to those demonstrated in this case, the employer here had accommodated the employee for years and further helped its case by making a genuine expression of continued support for the employee at the same time as making its direction.

March v. Yukon (Human Rights Board of Adjudication), 2010 YKCA 3.

Ontario workplace violence bill demands good behavioral threat assessment processes

Many questions have been raised about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers. My take on the provision is that the actual disclosure duty is fairly narrow, and that the provision is most significant because it requires good behavioral threat assessment processes. I’ve laid out my reasoning below.

The section everyone’s talking about is section 32.05(3). It reads as follows:

(3) An employer’s duty to provide information to a worker under clause 25 (2) (a) and a supervisor’s duty to advise a worker under clause 27 (2) (a) include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if,

(a) the worker can be expected to encounter that person in the course of his or her work; and

(b) the risk of workplace violence is likely to expose the worker to physical injury.

The first question asked about this provision is, “How do we know if a person has a history of violence?” The language of the provision is strict: it does not say “known history of violence.” Does this mean that employers must be omniscient? No.

Health and safety legislation is typically drafted in onerous language to encourage behavior that maximizes protection for workers. Though claims by employers of over-breadth and vagueness about such language are typically unsuccessful, even by promulgating meaningless language that seems to set an absurdly high standard of conduct (such as omniscience), the government cannot preclude a due diligence defence. So the government can encourage employers to act upon knowledge of an individual’s history of violence (as it has done), but can’t sustain a charge based on a failure to be omniscient if it is reasonable to protect a worker by knowing less about another individual’s history.

What is reasonable then? This is certainly a point that will be litigated, but there is a wealth of available literature on threat assessment to give employers guidance today. If I can simplify, this literature requires organizations to (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time.

What about human rights and privacy concerns? Regarding human rights concerns, threat assessment is not about “profiling” an individual based on a stereotype but, rather, is about gathering facts about behavior to understand a potential threat. Performed properly, it should be defensible. Regarding privacy, threat assessment requires access to information about threats. Employers may have a duty to gather information in the course of conducting an assessment, but the more fundamental duty is to “know what you know” by having a system in place for reporting and recording concerning behavior in the workplace, including all violent acts. This conception – know what you know and conduct threat inquires as necessary – seems to strike a fair balance between workplace health and safety and personal privacy.

For those of you interested in reading more about threat assessment, there are some leading resources at the United States Secret Service National Threat Assessment Center. The complete text of Bill 168 is here.

Two presentations on privacy, campus and workplace violence and student affairs

Our firm has the pleasure of doing extensive work in the Ontario post secondary education sector. As part of this business, we ran a conference entitled Students and the Law – Proactive Strategies for Changing Times for a group of university administrators in early November and a similar session again today for college administrators.

I spoke on students at risk and managing on-campus violence together with my colleague Catherine Peters. Catherine covered the impact of Ontario’s pending workplace health and safety legislation (Bill 168) on campus safety programs as well as the (tricky!) interplay between disciplinary and non-disciplinary management. I also dealt with Bill 168 in discussing mandatory and discretionary disclosures of personal information for the purpose of managing risk. The slides are below, and for a copy of my speaking notes click here.

I then did a short “hot issues” in student information and privacy presentation, with a brief note on the tort of invasion of privacy, a fun segment about students who take other students’ pictures and a note about processing the “I want all my e-mails” access to personal information request. The slides are below, and for my speaking notes click here.

Here are some recent and relevant resources that we noted in our discussion:

I’d like to thank Gene Deisinger, who has recently begun duties as Deputy Chief of Police & Director of Threat Management Services at Virginia Tech, for identifying some of these resources. Gene and colleague Marisa Randazzo do an excellent podcast on threat assessment that’s linked from the fourth bullet above.

I hope this material is of use!


Ontario’s workplace violence bill and its information sharing component

Bill 29, An Act to amend the Occupational Health and Safety Act to protect workers from harassment and violence in the workplace, was introduced by a private member belonging to the NDP on December 13th of last year. It would amend the Occupational Health and Safety Act to require employers to protect workers from harassment and violence in the workplace whether perpetrated by employees, clients or other individuals the employer serves (e.g. students). This represents an expansion of the Ministry of Labour’s current jurisdiction, which has been held to be limited to addressing the threat of physical violence.

Notably, in its current form, the Bill includes number of duties that are triggered when an employer has reason to believe that harassment or violence has occurred or is likely to occur, including specific duties to:

  • identify the source of the harassment or violence;
  • ensure that further harassment or violence is prevented or stopped;
  • where necessary, take steps to remove the source of the harassment or violence from the workplace; and,
  • contact law enforcement, where appropriate.

As drafted, the Bill does not require routine threat surveillance as a measure to prevent harassment or violence.

Similar bills have been introduced by NDP members in the past, but this Bill comes shortly after a Coroner’s Jury report into the death of, Lori Dupont, a nurse who was killed by her former boyfriend (also a resident physician) at a hospital in Windsor. The Coroner’s Jury report recommends changes to the Ontario Occupational Health and Safety Act. It also includes recommendations that stress the importance of information sharing, medical/behavioral monitoring, clear chains of command and decisive, risk-based decision making. Here is a copy of the report along with the Ontario Hospital Association’s media release.