A broader implication of the SCC’s decision in Fearon

The Supreme Court of Canada issued R v Fearon on December 11th. A 4-3 majority held that the police can search a cell phone incident to arrest without a warrant but subject to various limitations prescribed by the Court. One always must be careful in drawing too much from the Court’s handling of a specific issue in a specific context, but the dialogue between the majority and minority about the mitigating effect of a computer inspection protocol is notable for organizations.

The majority allows warrantless searches, in part, based on a finding that the privacy impact of a cell phone search incident to arrest can be meaningfully mitigated by the application of a “tailored” inspection. Justice Cromwell explains:

First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest.  Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25.

This approach responds to the privacy concerns posed by the virtually infinite storage capacity of cell phones by, in general, excluding resort to that capacity in a search incident to arrest.  It would also provide these protections while preserving the ability of the police to have resort to basic cell phone data where this serves the purposes for which searches incident to arrest are permitted.

Given the Crown bears the onus of establishing a reasonable search incident to arrest, the majority makes clear that police must take “detailed notes” of their inspection process.

For the minority, the privacy interest in a cell phone is too great to permit any warantless intrusion. Justice Karakatsanis also calls the majority’s reliance on the mitigating effect of a tailored inspection protocol “complicated,” “impractical” and inviting of “after-the-fact litigation.”

Organizations have been reckoning with an expectation of privacy on workplace computers since the Supreme Court of Canada’s 2012 finding in R v Cole. I’ve argued elsewhere that, notwithstanding Cole, the standard for employer searches will likely remain reasonably permissive. The reasoning in Fearon can be used by employers to argue for a permissive search standard. Employers should be careful, however, to (1) document the purpose of their inspections and (2) follow a logical, documented inspection process. Justice Karakatsanis is correct; litigation about the manner in which a computer inspection has been conducted is too easy to foresee.

 R v Fearon, 2014 SCC 77 (CanLII).

 

Arbitrator orders damages for employer’s unauthorized call to personal doctor

On September 25th the Grievance Settlement Board ordered the province to pay $2,500 in damages for making an authorized call to an employee’s personal doctor. Vice-Chair Fisher based the award on the province’s failure to respond appropriately to the breach and evidence of mental distress:

However the Grievor is also entitled to a further remedy for this serious breach of the MOS. I am deeply troubled by the fact that Ministry apparently made no attempt to ascertain who in fact made this improper phone call. One would think that the Ministry would have some interest in trying to determine who in fact made such an inappropriate phone call, but apparently they did not.

The Grievor indicated that these series of events caused him distress and that he felt disgusted by the actions of the person whom made the call to his doctor without his consent. The Grievor is entitled to monetary damages for his distress. Although he did not receive any medical attention for this distress, it does not mean that his distress was not real.

The Union proved the call and not the identity of the caller, but the province did not take steps to rebut the inference that the call came from someone in its employ. The caller obtained information about appointments the grievor had attended from a medical secretary who was subsequently reprimanded for her breach.

Ontario Public Service Employees Union (Spicer) v Ontario (Labour), 2013 CanLII 72580 (ON GSB).

Arbitrator says that an employer owes an employee no duty to investigate reasonably suspected wrondoing

On December 21st, Ontario arbitrator Ian Anderson dismissed a termination grievance brought by an employee who was terminated for bringing personal computing devices into a high-security workplace and downloading significant volumes of unauthorized (and risky) software onto an employer’s network.

The outcome is driven by the facts, but Arbitrator Anderson did deal with an asserted employer duty to investigate suspected wrongdoing. He dismissed the union’s argument that the employer could not charge the grievor with the downloading offence given it did not investigate and discover the grievor’s downloading sooner, at the same time it discovered and disciplined the grievor with excessive internet use. Arbitrator Anderson said:

The Union suggests that an employer has a responsibility to investigate potential misconduct of which it has reasonable suspicion. Put differently, the Union suggests that in order to justify discipline delayed on the basis of earlier lack of knowledge of the alleged misconduct, there must previously have been no reasonable basis to suspect that misconduct.

The Union’s argument, as I understand it, is not restricted to circumstances that might give rise to estoppel. Absent some provision in the collective agreement, I do not agree that there is such a general duty of investigation on an employer. Nor, in my view, is this proposition supported by the cases relied upon by the Union.

General Dynamics Land Systems v National Automobile, Aerospace, Transportation and General Workers Union (Caw-Canada, Local no 27), 2012 CanLII 86240 (ON LA).

Employer Denied Order to Have Telco Produce Text Messages

On May 18th, the Ontario Superior Court of Justice dismissed an employer’s application for an order to compel a telephone company to produce text messages in aide of an internal investigation.

The employer, a social services agency, was investigating an allegation that a caseworker had an inappropriate sexual relationship with a client. The client admitted the relationship and the caseworker did not. The client said he no longer had text messages between he and the caseworker that would prove the allegation but consented to their release from the TBay Tel. The caseworker and her union refused to consent.

Rather than discipline or discharge the caseworker and seek a production order through the grievance arbitration process as necessary to defend a grievance, the employer deferred the completion of its investigation and sought a production order in court. It argued this was in the best interest of “all concerned,” likely a sign that it did not want to rest its discipline case too heavily on its client.

Justice Fregeau denied the order, primarily because it was not necessary. He said:

CLFFD has some evidence that J.T. violated their employment policy. They are in a position to discipline her for her conduct should they choose to do so. Their expressed position during the hearing of this Application is that for the interests of all concerned, they do not want to do so without “full information” or the “best evidence” available. It would certainly be advantageous or beneficial for CLFFD to have the information sought, but I do not find that they require it to proceed with the discipline of J.T.

While a Norwich order is a discretionary, flexible and evolving remedy, it is also an intrusive and extraordinary remedy that must be exercised with caution. I do not feel that it is appropriate to grant Norwich relief on all the facts and circumstances of this case.

Notably, the caseworker’s union opposed the requested order as being beyond the Court’s jurisdiction because the essential nature of the dispute arose out of the collective agreement between the caseworker’s union and the employer (i.e., because of the Weber principle of exclusive arbitral jurisdiction). The Court did not decide this issue.

This case should be considered by employers considering a Norwich order as an aide to an internal investigation. They should also beware that many (if not most) telephone companies do not log text messages.

Community Living v. TBay Tel et al., 2011 ONSC 2734 (CanLII).

Management Counsel’s Perspective – Eight Investigation Traps and What to do About Them

Earlier this week I sat in on a great presentation on interviewing techniques by a former police officer who’s now a corporate security pro. Pretty fascinating subject. After, I gave a short presentation on some of the common flaws we (as management counsel) see in internal investigations.

Here are my slides.