Here's something interesting ...

An advisory opinion by the Philadelphia Bar Association says it's unethical to ask a third party to friend someone on Facebook to obtain information about them:

Attorney Can’t Ask 3rd Party to ‘Friend’ Witness on Facebook, Opinion Says ABA Journal - Law News Now

Attorney Can’t Ask 3rd Party to ‘Friend’ Witness on Facebook, Opinion Says

Posted May 5, 2009, 07:38 pm CDT By Martha Neil

A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.

Alternative approaches, such as secretly sending a third party to "friend" a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.

Not telling the potential witness of the third party's affiliation with the lawyer "omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness," the opinion explains.

"The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony."

Facebook and MySpace profiles are different from public spaces where one can freely film and record others, the opinion says, because an invitation is required to access them, notes a Social Media Today post on the opinion.

Join the discussion about this issue over at Slaw.ca: Is it OK to use deceit to get Facebook users’ info?.

Labels: facebook, litigation, privacy, social networking

An Ontario arbitrator for the Financial Services Commission of Ontario has recently had an opportunity to consider whether a breach of PIPEDA in the collection or handling of intended evidence in a hearing will result in it not being admissible in the hearing. Arbitrator Rogers concluded, following Ferenczy v MCI Medical Clinics (see Canadian Privacy Law Blog: Admissibility of video surveillance evidence), that it does not. See Para 35, below.

Since the case isn't on CANLii yet, here's the full text:

Borowski v. Aviva Canada Inc.

Financial Services Commission of Ontario (Arbitration Decision)

J. Rogers Member

Heard: July 29, 2008 Judgment: September 12, 2008 Docket: FSCO A07-002593 J. Rogers Member:

Issues:

1 The Applicant moves for an order excluding the expert reports Aviva Canada Inc. ("Aviva") obtained from Brigham & Associates Inc. from the arbitration hearing and, in the alternative, an order requiring Aviva to fund replies to these reports.

2 The issues are:

1. Are the reports Aviva obtained from Brigham & Associates Inc. admissible at the arbitration hearing regarding Mr. Borowski's entitlement to a catastrophic designation?

2. If the reports are admissible, does Aviva have an obligation to fund replies to these reports under section 24 or 42 of the Schedule?

Result:

3

1. The reports Aviva obtained from Brigham & Associates Inc. are admissible at the arbitration hearing.

2. Aviva does not have an obligation to fund replies to these reports under section 24 or 42 of the Schedule.

Scope of Motion:

4 Mr. Borowski sought a ruling precluding Aviva from submitting that it is premature to decide whether to exclude the subject reports on the grounds that they are of little probative value. Mr. Borowski argued that Aviva was estopped from taking this position because Aviva agreed that admissibility of the reports would be determined in advance of the hearing.

5 Aviva submitted that its objection was properly made because, when it agreed that the issue would be determined by way of a pre-hearing motion, the only position that Mr. Borowski had taken was that the reports should be excluded since they were obtained in breach of section 42 of the Schedule.

6 I ruled that Aviva's agreement was not a concession that every argument that Mr. Borowski chose to raise on admissibility of the reports was properly the subject of this motion. I also informed the parties that the issue was largely moot, because Aviva's concern that a pre-hearing determination of probative value would usurp the role of the hearing Arbitrator was resolved by the fact that I will be presiding at the hearing as well as the motion.

Facts:

7 The facts are not in dispute. Mr. Borowski was injured in a motor vehicle accident on October 24, 2001. He applied for and received statutory accident benefits from Aviva, payable under the Schedule. The parties disagree on his entitlement to certain further benefits and on whether Mr. Borowski sustained a catastrophic impairment as a result of the accident.

8 In January 2007 Mr. Borowski submitted an Application for Determination of Catastrophic Impairment, supported by a report authored by Dr. Ronald Kaplan. Pursuant to section 42 of the Schedule, Aviva gave Mr. Borowski notice in March 2007 that it required him to attend medical examinations regarding this issue. Mr. Borowski attended the examinations deemed necessary by the three-person medical team Aviva chose. The team delivered its reports in August 2007 and, based on these reports, Aviva determined that Mr. Borowski did not sustain a catastrophic impairment as a result of the accident. Mr. Borowski obtained rebuttal reports, authored by a three-person team of his choice, pursuant to section 42.1 of the Schedule.

9 Mr. Borowski applied for mediation and, after mediation failed to resolve the dispute, he applied for arbitration. A pre-hearing was held on April 29, 2008. Aviva served Mr. Borowski with the three reports at issue in this motion on May 4, 2008. They were authored by three doctors from the United States who conduct business under the name of Brigham & Associates. Counsel for Aviva retained Brigham & Associates to conduct a "paper review" of the material in Aviva's possession and give their opinion on whether Mr. Borowski had sustained a catastrophic impairment. Aviva provided Brigham & Associates with copies of Mr. Borowski's medical records it had received and copies of the reports of its doctors and Mr. Borowski's doctors. Aviva did not seek Mr. Borowski's consent. Brigham & Associates concluded that Mr. Borowski did not sustain a catastrophic impairment as a result of the accident.

Parties' Positions:

10 Mr. Borowski's position is that the reports from Brigham & Associates should be excluded because his contract with Aviva and the Schedule provide a complete code of Aviva's rights of access to his medical records and its use of those records. He argues that, since neither his contract nor the Schedule specifically provides that Aviva may disclose his medical records except in the context of an examination under section 42 of the Schedule, Aviva is precluded from disclosing those records, except for the purpose of a section 42 examination. Aviva therefore obtained the reports from Brigham & Associates by breaching his right to privacy.

11 Mr. Borowski further submits that the reports should be excluded because Aviva breached the provisions of the Personal Information Protection and Electronic Documents Act, 2000 (the PIPED Act) and its own Privacy Policy by sending his medical records to Brigham & Associates. He also submits that the reports should be excluded because the authors usurp the function of the Arbitrator by offering their opinion on the interpretation of the relevant legislation, criticizing the judicial approach to the legislation and impugning Mr. Borowski's credibility. Finally, Mr. Borowski submits that the reports should be excluded because they are of little probative value.

12 Aviva submits that, although its contract with Mr. Borowski and the Schedule provide a complete code of the parties' substantive rights, neither addresses the scope of procedural rights in the context of adversarial proceedings. It concedes that the subject reports were not obtained pursuant to section 42 of the Schedule, but argues that it is permitted to obtain them, unless specifically prohibited by statute or legal principle. Its position is that, because Mr. Borowski's medical condition is at issue in the arbitration, there is a diminished expectation of privacy regarding his relevant medical records. It therefore did not breach his right to privacy in providing his records to Brigham & Associates. It argues that, even if it did breach Mr. Borowski's rights in obtaining the reports, the breach was minor and the jurisprudence does not support exclusion of the reports in those circumstances.

13 Aviva denies that it breached the PIPED Act or its Privacy Policy and submits that, although the Brigham & Associates' venture into statutory interpretation might mean that some sections of the reports would be excluded or given no weight, that does not lead to exclusion of the reports in their entirety.

Complete Code of Rights:

14 As noted above, Mr. Borowski's position is that his contract with Aviva and the Schedule circumscribe the information he is required to provide to Aviva, the purposes for which Aviva may use the information and the persons to whom Aviva may disclose it. He argued that he only provided Aviva with his medical records because he was required to do so for the purpose of the examination permitted by section 42 of the Schedule, therefore Aviva was only permitted to use them for that purpose.

15 Section 33(1.1) of the Schedule imposes a general obligation on insured persons to provide insurers with "[A]ny information reasonably required to assist the insurer in determining the person's entitlement to a benefit." In addition, Rule 32 of the Dispute Resolution Practice Code (the "Code") imposes the requirement for "prompt and complete exchange of documents that are reasonably necessary to determine the issues being arbitrated". It is therefore not accurate to say that Mr. Borowski disclosed his medical records only because Aviva had the right to have him examined pursuant to section 42. Mr. Borowski was required to provide that information in any event. Neither the Schedule nor the Code prescribes limits on the insurer's use of the information it receives.

16 Section 42 of the Schedule does not address information to be provided to an insurer. Section 42(10)(a) addresses information to be provided to "the person or persons conducting the examination" where an insured person is required to attend an examination under section 42. Section 42(10)(a) places an obligation on both the insured person and the insurer to "provide to the person or persons conducting the examination all reasonably available information and documents that are relevant or necessary for the review of the insured person's medical condition". That means that the insurer is required to provide to the person conducting the examination any relevant information it has received from the insured person and any other relevant information in its possession. The insured person also has a similar obligation to provide information directly to the person conducting the examination.

17 The thrust of section 42(10)(a) is to ensure that examinations of insured persons are conducted with all relevant knowledge. In providing for the insured person to provide information directly to the person conducting the examination, it safeguards the interest of an insured person in having the examination conducted on the basis of a complete record. It regulates neither the information to which insurers are entitled, nor the uses that insurers may make of the information they acquire.

18 Section 42(10)(a) certainly allows insurers to provide information to persons conducting examinations on their behalf. However, that does not mean that this is the only permitted use. To accept Mr. Borowski's position would mean that Aviva would be precluded from filing his medical records as evidence in the very proceeding in which he was required to disclose them, because there is no provision that specifically permits Aviva to do so.

19 Mr. Borowski relies on the decision of the Court of Appeal in Haldenby v. Dominion of Canada General Insurance Co. in support of his position that the Schedule contains a complete code of the rights of the parties. In that case the Court held that the insured person had no right to reapply for further income replacement benefits, after the insurer had terminated those benefits, because there was no provision in the Insurance Act or the Schedule to allow it. The Court noted that the suggested approach would "extend a claimant's entitlement to benefits for an indeterminate period of time" and that it was contrary to the scheme of the Schedule. The Court did not rule that the Schedule is a complete code of all procedural and substantive rights of the parties. I accept Aviva's submission that this decision reaffirms the trite maxim that the substantive rights of the parties must be found in the Insurance Act or the Schedule.

20 If one were required to look to the Schedule for every step in the dispute resolution process, it would grind to a screeching halt. For instance, although Mr. Borowski concedes that Aviva had the right to share his medical information with its counsel, the Schedule does not confer that right. Similarly, the Schedule does not contemplate the standard practice of retaining accountants and providing them with the insured person's financial records, where the quantum of entitlement to income replacement benefits is at issue. The Schedule does not contemplate that insurers would retain experts in accident reconstruction, often providing them with the medical records of the insured person, where there is a dispute about whether an accident occurred. The Schedule does not permit the common practice of applicants who obtain expert opinions by non-treating doctors, for the sole purpose of presenting them as evidence in the arbitration.

21 The admissibility of evidence at an arbitration hearing is addressed in Rule 39.3 of the Code and section 15 of the Statutory Powers Procedure Act. The only limits on the admissibility of relevant evidence found in those provisions are:

• Evidence that would not be admissible in a court by reason of any privilege under the law of evidence;

• Evidence that is not admissible under the Insurance Act; or

• Evidence that is not admissible under any other statute.

22 None of those restrictions applies here.

23 Aviva is by no means the first Insurer to have obtained an opinion based on a paper review. Arbitrators have commented on the practice in several decisions. The practice has never been censured. In Hart and Allstate Insurance Company of Canada, the Arbitrator made the following comment in refusing to find that proposed section 42 examinations were reasonable and necessary:

I have no evidence as to how examinations today will shed greater light on Mrs. Hart's physical or emotional condition four years ago (regarding the partial inability test) or six years ago (regarding causation) than a paper review by experts of Allstate's choice (given the extensive document production over and above the prior DAC assessments), which has been and continues to be an option at the Insurer's disposal.

24 In Rushlow and ING Insurance Company of Canada, the Arbitrator made the following comment in similar circumstances:

If ING desires further input of a neurophysical nature, there is nothing to prevent it from obtaining a "paper" opinion based on the documents and reports...

25 The theme was revisited in Wilson and Aviva Canada Inc. In that decision, the Arbitrator noted as follows:

While the law and the jurisprudence are clear that section 42 of the Schedule gives the insurers a right to override such normal privacy concerns, provided that the legal pre-conditions for the examination are met in this matter, I have found that those pre-conditions were not met.

While it may well have been reasonable to perform an unintrusive paper review of Ms. Wilson's condition, based on the extensive material potentially available to the Insurer, this is not what was proposed.

26 Although the issue of whether an insurer breaches the Schedule or the privacy interests of the Insured person in conducting a "paper review" was not raised in the above cases, the endorsement of the practice in these decisions suggests that a breach is not gross, plain and obvious, as Mr. Borowski submitted. The decisions recognize that a paper review is a relatively unintrusive means of obtaining evidence for a hearing.

27 The principle that a party to an adversarial proceeding is entitled to a diminished expectation of privacy concerning personal information relevant to the dispute is well established. Because Mr. Borowski was required to disclose his medical records to Aviva, the narrow question is whether it was reasonable to expect that Aviva was precluded from disclosing the information it received to its agents. Mr. Borowski concedes that Aviva had the right to disclose the information to counsel. I see no substantive difference between disclosure to counsel and Aviva's disclosure to medical experts for the purpose of obtaining an opinion on the issue in dispute. Aviva's recruitment of professional expertise is at the heart of both relationships.

28 I find that Aviva did not breach the provisions of the Schedule or violate Mr. Borowski's reasonable expectation of privacy in obtaining the reports from Brigham & Associates. This ruling does not mean that there would be no limits on what Aviva can do with the personal information it receives from Mr. Borowski, as he submitted. Aviva has simply provided information to its agent for a purpose related to an ongoing dispute. It is not necessary to speculate on what the limits might be, for the purpose of this decision.

29 Because the right to obtain the subject reports is not based on section 42 of the Schedule, I find that Aviva was not required to comply with the notice provisions of section 42, as Mr. Borowski submitted. For the same reason, Aviva is not required to fund rebuttal reports pursuant to section 42 of the Schedule.

Violation of the Piped Act or Privacy Policy:

30 The PIPED Act regulates the collection, use and distribution of personal information collected in the course of commercial activity.

31 Mr. Borowski relies on the decision of the Federal Court of Appeal in Rousseau v. Canada (Privacy Commissioner) in support of his position that his medical records were provided to Brigham & Associates, in breach of the provisions of the PIPED Act. The applicant in that case was receiving long-term disability benefits from an insurer. Pursuant to its right under the insurance policy, the insurer required the applicant to attend an independent medical examination (IME). The insurer terminated benefits on the basis of the report. The applicant sought production of the complete file of the doctor who had performed the examination. The doctor refused to disclose his handwritten notes. The issue on appeal was whether the handwritten notes of a doctor performing an IME in Ontario, at the request of an insurer, are personal information under the PIPED Act. The Court had to determine that issue in the applicant's favour in order to grant the only remedy sought under the PIPED Act: the right of the applicant to access to the information.

32 At the appeal, the applicant limited his request to the doctor's notes on the answers he gave to questions asked and the doctor's observations of the applicant's behaviour. The Court ruled that the doctor's notes contained the applicant's personal information to which he has a right of access and remitted that matter to the Privacy Commissioner for a determination of which portions of the notes should be disclosed. The Court noted as follows:

In light of the Privacy Commissioner's recognition that there are in the notes information which is personal to Mr. Rousseau and information which is not, it may be said that in the end, Mr. Rousseau has a right of access to the information he gave to the doctor, and to the final opinion of the doctor in the form of the report to the insurer. In accordance with Principle 4.9.1 of Schedule 1 to the PIPED Act, this enables Mr. Rousseau to correct any mistakes in the information he gave the doctor or which the doctor noted, as well as any mistakes in the doctor's reasoned final opinion about his medical condition. But the process of getting to that final opinion from the initial personal information of Mr. Rousseau belongs to the doctor.

33 This excerpt highlights the fact that the issue in Rousseau was quite different from the issue in this motion. Mr. Rousseau was seeking access to his records, not the exclusion of evidence. The PIPED Act provides no such remedy. The Court was not asked to address the question of whether the insurer or the doctor conducting the IME breached the Act in the transfer of the medical records.

34 The Court noted that, before the matter was heard, Mr. Rousseau and the insurer had settled an action he had commenced in the Superior Court. There is no mention of an order excluding the doctor's report from evidence in that action. In Rousseau, the focus of the Court was on determining whether the doctor conducting the IME was engaged in "commercial activity", a requirement for the PIPED Act to apply, and whether the doctor was in possession of the personal information of Mr. Rousseau.

35 In Ferenczy v. MCI Medical Clinics, the Ontario Superior Court directly addressed the question of whether a potential breach of the PIPED Act should result in the exclusion of evidence obtained as a result of the breach. In that case, the plaintiff in an action for damages for the alleged negligence of a doctor sought an order excluding surveillance evidence on the grounds that it was personal information, collected or recorded in violation of the PIPED Act. The Court refused to exclude the evidence, giving the following reasons:

At the outset I wish to point out that the Act does not contain a provision which prohibits the admissibility into evidence of personal information collected or recorded in contravention of the Act. Rather the Act provides that an individual or the Privacy Commissioner may bring a complaint which results in an investigation and report under the Act. Thereafter, certain steps described in the legislation may be taken in the Federal Court. Consequently, if the collection of surveillance evidence in this case is said to be a violation of the Act a complaint may be filed pursuant to the Act to commence that process. However, that has no direct impact on the issue of the admissibility of evidence in this trial.

The evidence at issue here is relevant, in my view, and the probative value of the evidence exceeds its prejudicial effect. By prejudicial effect, I mean the danger that the evidence will be misused. As stated, I have concluded that a proper limiting instruction is adequate in this case to ensure that the evidence is used for the limited purpose for which I propose to admit it.

This is not a case involving state action and consequently no consideration arises as to the applicability of the Canadian Charter of Rights and Freedoms or the exclusion of evidence pursuant to the provisions of the Charter.

Prima facie relevant evidence is admissible, subject to a discretion to exclude where the probative value is outweighed by its prejudicial effect. This is the test in both criminal and civil cases: R. v. Morris, [1983] 2 S.C.R. 190, 1 D.L.R. (4th) 385, 48 N.R. 341, 7 C.C.C. (3d) 97; and see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at pp. 23-38.

There is also a discretion in a trial judge to exclude evidence that would render a trial unfair. In R. v. Harrer, [1995] 3 S.C.R. 562, 128 D.L.R. (4th) 98, Justice La Forest concluded that this historical concern with trial fairness has now been enshrined in s. 11(d) of the Charter. As I have indicated the Charter is not at issue in this case. However, that does not mean that the common law discretion to exclude evidence, to which Justice La Forest was referring as the underpinning of s. 11(d) of the Charter, does not continue to operate in a non-Charter context.

I conclude that the admission of the evidence here in question will not render the trial unfair. The video will be shown to the plaintiff and the jury. The jury will hear any explanation offered by the plaintiff concerning the contents of the video and will determine to what extent, if at all, the surveillance evidence assists them in assessing the complainant's credibility. The plaintiff has sued Dr. Weinstein and made a claim in her pleadings and in her evidence that her left hand has been disabled. The surveillance was undertaken in a public place and relates directly to the alleged disability. The introduction of such evidence has the potential to operate unfavourably to the plaintiff, but not to render the trial unfair.

36 I adopt the above reasons and approach, the key elements of which are:

• The remedy that the applicant seeks is not provided in the PIPED Act and the provisions of the Act have no direct bearing on the admissibility of evidence;

• Relevant evidence is prima facie admissible, subject to a discretion to exclude where the probative value is outweighed by its prejudicial effect;

• Although the Charter has no direct application, it informs the discretion to exclude evidence on the grounds that it would render the trial unfair.

37 It is not disputed that the reports at issue in this motion are relevant. I have found that Mr. Borowski was not reasonably entitled to privacy regarding the information used to prepare the reports. I find that the admission of the reports will not render the arbitration hearing unfair. Relevant evidence will always have the potential to influence an unfavourable result, but that does not render the hearing unfair. I see no merit in Mr. Borowski's submission that allowing insurers to tender reports based on paper reviews would give them a licence to bludgeon insured persons into submission with numerous reports, because of the disparity in resources. That submission is undercut by the fact that the assessment of expert evidence is not influenced by the number of experts offering the opinion and opinions based on paper reviews are often discounted because the person conducting a paper review did not interview and assess the subject in person. Mr. Borowski's position is also undercut by his own submission that the subject reports are of little probative value.

38 As the Court noted in Ferenczy, the above findings are sufficient to dispose of the issue of admissibility. However, the Court went on to find that there was no breach of the PIPED Act in these circumstances. The Court gave extensive reasons for that conclusion. The following excerpt is relevant to the circumstances of this case:

One way to avoid this result, and I conclude it is the correct interpretation of the Act, is to apply the principles of agency. On this analysis it is the defendant in the civil case who is the person collecting the information for his personal use to defend against the allegations brought by the plaintiff. Those whom he employs, or who are employed on his behalf, are merely his agents. On this analysis s. 4(2)(b) of the Act governs. That section reads as follows:

4(2) This Part does not apply to

. . .

(b) any individual in respect of personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose.

The defendant through his representatives was employing and paying an investigator, to collect information for him. It is the defendant's purpose and intended use of the information that one should have regard to in determining the applicability of the Act. On the basis of this analysis I conclude that the defendant is not collecting or recording personal information in the course of commercial activity. He, through his agents, was collecting information to defend himself against the lawsuit brought by the plaintiff. This is a personal purpose in the context of the civil action brought against him by the plaintiff. In my view, this conclusion is consistent with the overall purpose of the Act which is aimed primarily at information collected as a part of commerce. Section 3 of the Act reads as follows:

Purpose

3. The purpose of this Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.

Closely related to this reasoning is my further conclusion, that in the circumstances here (where the recording was in a public place), the plaintiff has given implied consent to the defendant to collect, record and use her personal information insofar as it is related to defending himself against her lawsuit. A plaintiff must know that by commencing action against a defendant, rights and obligations will be accorded to the parties to both prosecute and defend. The complainant has effectively, by commencing this action and through her pleadings, put the degree of injury to her hand and its effect on her life into issue. One who takes such a step surely cannot be heard to say that they do not consent to the gathering of information as to the nature and extent of their injury or the veracity of their claim by the person they have chosen to sue. Consent is not a defined term under the Act, and there is no indication in the Act that consent cannot be implied.

39 I endorse and adopt the above approach. I find that Aviva retained Brigham & Associates as its agents, for the personal purpose of responding to Mr. Borowski's application, triggering the exemption in section 4(2)(b) of the Act. Neither Aviva nor its agent collected or distributed personal information that Mr. Borowski had not already disclosed. I find that, in commencing an application in which his medical condition was in issue, Mr. Borowski implicitly consented to the acquisition by Aviva of expert medical opinions, based on the personal information he was required to disclose.

40 I appreciate that the Court in Rousseau concluded that the doctor conducting the IME was engaged in "commercial activity", triggering the application of the Act, while the Court in Ferenczy found that the persons conducting the surveillance were not engaged in "commercial activity". I am bound by neither decision and I prefer the Ferenczy approach. As noted above, the issue in Rousseau was gaining access to personal information collected. That was not the issue in Ferenczy and it is not the issue here. Also as noted above, even had I found a breach of the Act, I would not exercise my discretion to exclude the reports.

41 The above reasons also dispose of Mr. Borowski's submission that the reports were obtained in breach of Aviva's Privacy Policy. The Privacy Policy largely adopts the provisions of the PIPED Act. The policy specifically contemplates disclosure of personal information to agents and adjusters. As noted above, based on the principles of agency, disclosure to an agent is not disclosure to a third party. The policy also specifically provides that consent to disclose is assumed for the purpose of evaluating claims. I find that the purpose of obtaining the subject reports was to assist in the evaluation of Mr. Borowski's claim and that Aviva did not agree, through its privacy policy, that it would not use personal information collected from Mr. Borowski for that purpose.

Probative Value vs. Prejudice

42 Mr. Borowski submits that the reports should be excluded because the authors usurp the role of the Arbitrator by offering their opinion on the proper application of the AMA Guides. Mr. Borowski also submits that the reports should be excluded because they are of little probative value since the opinions were formed without examining him and are based on an assessment of his credibility. He relies on the decision in Sharma and Allstate Insurance Company of Canada in which the Arbitrator refused to exercise his discretion to admit reports prepared by Brigham & Associates which Allstate had served late. In arriving at that decision, the Arbitrator commented unfavourably on the admissibility of opinions offered on how the AMA Guides should be applied. The Arbitrator concluded that the reports were "potentially inappropriate".

43 The issue in Sharma was whether extraordinary circumstances existed that would warrant the exercise of discretion to allow the filing of reports that were not properly served. Here, the reports have been served well in advance of the hearing. Although the opinions that Brigham & Associates offer on the interpretation of the AMA Guides are not properly the subject of expert evidence, the fact that those opinions are offered does not render the entire reports inadmissible. The expression of these opinions goes to the weight to be given to the medical opinions expressed, not their admissibility. The extent to which the medical conclusions are based on incorrect interpretation of the applicable law is a factor to be taken into account in assigning weight. An expert opinion would not be excluded merely because the expert expressed and applied a correct interpretation of the relevant legislation in arriving at an opinion within his or her expertise.

44 Similarly, the fact that Brigham & Associates did not assess Mr. Borowski in person and might have made assumptions about his credibility are questions of weight, not admissibility. The issue of weight cannot be determined in a vacuum. It must be assessed in light of all of the evidence. It is not possible to determine at this stage of the proceedings whether the assessors would have been in a better position to form an opinion, had they assessed Mr. Borowski in person. It is also not possible to determine whether any assumptions on credibility will accord with my conclusions at the end of the hearing.

Conclusion:

45 For all of the above reasons, I find that the reports Aviva obtained from Brigham & Associates are admissible at the Arbitration hearing.

Expenses:

46 I reserve my decision on the expenses of the motion until the Arbitration hearing has been completed. I remain seized of the issue, should the parties resolve all other issues without a hearing, but are unable to resolve the issue of expenses of this motion.

J. Rogers Member

Labels: litigation, privacy

It's a busy week for privacy cases in the English courts. The media has widely reported on the case of Max Mosley, the Grand Prix boss, who has successfully sued the News of the World. The publication placed a hidden camera in a private residence and filmed Mosley in an intimate encounter. The paper suggested that he participated in a sadomasochistic orgy that attempted to recreate a Nazi death camp atmosphere.

In seeking to protect his privacy, the whole event has been thrown into the public arena. And consistent with other privacy cases, the quantum of damages is surprisingly low given the impact that this has had on Mosley.

The decision can be found here.

From the New York Times:

British Judge Rules Tabloid Report Tying Grand Prix Boss to ‘Orgy’ Violated Privacy - NYTimes.com

LONDON — In a ruling with potentially wide implications for press freedom in Britain, a judge ruled Thursday that a tabloid newspaper breached the privacy of Max Mosley, the overseer of grand prix motor racing, when it published an article in March claiming that he had participated in a sadomasochistic “orgy” with a Nazi theme.

The judge, Sir David Eady, awarded Mr. Mosley, 68, damages equivalent to about $120,000 and legal costs estimated to be at least $850,000 in his lawsuit against The News of the World.

The ruling upheld the central arguments by Mr. Mosley and his lawyers: that there had been no Nazi theme to the five-hour sex session in an apartment in the Chelsea district of London that was secretly filmed by the newspaper, and no issue of public interest in its decision to splash the article on its front page and post video on its Web site.

“I found that there was no evidence that the gathering of March 28, 2008, was intended to be an enactment of Nazi behavior or adoption of any of its attitudes,” the judge wrote.

He added that Mr. Mosley had a “reasonable expectation” of privacy for sexual activities that took place on private premises and that did not involve violations of the criminal law.

“There was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on The News of the World Web site — all of this on a massive scale,” the judge said.

But he denied Mr. Mosley the “punitive damages” he had sought, which could have amounted to millions of dollars. The damage done to Mr. Mosley’s reputation by “the embarrassing personal information” disclosed by the newspaper “cannot be mitigated by simply adding a few noughts to the number first thought of,” the judge said.

Outside the court, Mr. Mosley said he was delighted with the ruling, which he described as “devastating” to The News of the World.

“It demonstrates that their Nazi lie was completely invented and had no justification,” he said. “It also shows that they had no right to go into private premises and take pictures and film of adults engaged in activities which are no one’s business but those of the people concerned.”

The ruling was one of several by Justice Eady and other judges in recent years in privacy cases against British newspapers under a provision of the European Convention on Human Rights. Some legal experts say the rulings have shifted the balance in Britain in favor of celebrity plaintiffs and against newspapers and other media organizations in invasion-of-privacy cases.

Justice Eady, in his finding, said his ruling should not be considered “a landmark case,” but rather “the application to rather unusual facts” in the Mosley case of privacy principles that had been developing in British court judgments in recent years. Still, the ruling caused a stir among lawyers fighting for press freedoms, some of whom said it was a bellwether for a new, more restrictive era of news media coverage of people in the public domain.

Other lawyers cautioned against alarmism, saying British courts would continue to weigh two competing provisions in the European rights convention — Article 8, establishing a right of privacy, and Article 10, protecting press freedoms — and that it was too early to know where the lasting balance would be struck.

“One lesson it teaches is that public figures can have a private life,” said Desmond Browne, a barrister who has represented some of the plaintiffs in headline-making privacy cases.

Editors of some of Britain’s more serious newspapers also were wary about drawing instant conclusions about where press law in Britain was headed.

Roger Alton, editor of The Independent, a newspaper known for the rigor of its investigative journalism, said he was not too troubled by the ruling.

“It’ll affect kiss-and-tell stories,” Mr. Alton told the British Broadcasting Corporation. “But it’s not a landmark. It’s not going to set things up in a completely different way.”

But Colin Myler, editor of The News of the World, said the judgment was based on precedents established by “judges in Strasbourg,” seat of the European Court of Human Rights, and that the issues involved had never been addressed by Britain’s Parliament. “As a result, our media are being strangled by stealth,” he said.

For Mr. Mosley, success in the case represented at least a partial vindication of what amounted to a gamble. Rather than resigning in shame, as have many well-known figures caught in sex scandals, Mr. Mosley chose another route. He admitted to a passion for sadomasochism, which he told the court had continued for 45 years, and discussed, from the witness box, details of what had occurred in the Chelsea apartment.

But the aspect of the article that he, and many of his detractors in the world of motor racing and beyond, considered the most damaging was the claim that the session involved a conscious effort to recreate the atmosphere of a Nazi death camp.

The potential damage to Mr. Mosley was linked, inevitably, to the fact that he is the son of Sir Oswald Mosley, leader of Britain’s National Union of Fascists in the 1930s, whose secret marriage to Mr. Mosley’s mother, Diana, took place at the home of the Nazi propaganda chief Joseph Goebbels in 1936, with Hitler as guest of honor.

In court, lawyers for The News of the World said they based their claim of a Nazi theme, in part, on the use of commands in guttural German or German-accented English by Mr. Mosley and the women involved. But Mr. Mosley and four of the five women involved maintained that what they intended in their role-playing was to recreate a generic prison scene, not a Nazi death camp.

Labels: europe, litigation, privacy, uk

A colleague just brought to my attention a case handed down yesterday by the High Court of Justice (Queen's Bench Division) of England & Wales: Applause Store Productions Ltd. & Anor v Raphael [2008] EWHC 1781 (QB) (24 July 2008).

The case relates to the misuse of private information and defamation. The defendant in this case had set up a false Facebook profile in the name of the plaintiff and established a Facebook group that was, shall we say, not flattering of the plaintiff. The court found in favour of the defendant on both claims.

What's additionally interesting is the detail with which the Court reviews the logging data generated by Facebook and provided to the Court. The case is an interesting read for privacy issues, but also is a good chance to look under the hood of Facebook, forensically speaking.

Labels: europe, facebook, litigation, privacy, social networking, uk

When the order was made that Google provide Viacom with its raw user logs (a move which significantly compromised user privacy), I wrote that the court could have ordered that the information be anonymised. (Canadian Privacy Law Blog: Commentary on the YouTube / Viacom order)

I don't think I can take any credit for this next move, but I'm sure the loud outcry has had an influence: Google and Viacom have agreed to anonymise the data using a one-way function so that the actual IP addresses cannot be reverse-engineered and Viacom has agreed to not even try. The stipulation filed with the court is here. Extract:

IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel of record:

1. Substituted Values: When producing data from the Logging Database pursuant to the Order, Defendants shall substitute values while preserving uniqueness for entries in the following fields: User ID, IP Address and Visitor ID. The parties shall agree as promptly as feasible on a specific protocol to govern this substitution whereby each unique value contained in these fields shall be assigned a correlative unique substituted value, and preexisting interdependencies shall be retained in the version of the data produced. Defendants shall promptly (no later than 7 business days after execution of this Stipulation) provide a proposed protocol for this substitution. Defendants agree to reasonably consult with Plaintiffs’ consultant if necessary to reach agreement on the protocol.

2. Non-Circumvention: The parties agree that they shall not engage in any efforts to circumvent the encryption utilized pursuant to Paragraph 1 this Stipulation. This Paragraph does not limit in any way any party’s rights under Paragraph 8 below.

For background, see all posts tagged: Viacom v Google. Also, the Ontario Privacy Commissioner applauds this move: CNW Group | OFFICE OF THE INFORMATION AND PRIVACY COMMISSIONER/ONTARIO | Commissioner Cavoukian Applauds Agreement Protecting YouTube Users' Privacy

Labels: google, ip address, litigation, privacy, Viacom v Google

More commentary on the Viacom v. Google/YouTube case, this time from MIT's Technology review:

Technology Review: Privacy protections disappear with a judge's order

Privacy protections disappear with a judge's order

By Associated Press

NEW YORK (AP) _ Credit card companies know what you've bought. Phone companies know whom you've called. Electronic toll services know where you've gone. Internet search companies know what you've sought.

It might be reassuring, then, that companies have largely pledged to safeguard these repositories of data about you.

But a recent federal court ruling ordering the disclosure of YouTube viewership records underscores the reality that even the most benevolent company can only do so much to guard your digital life: All their protections can vanish with one stroke of a judge's pen.

"Companies have a tremendous amount of very sensitive data on their customers, and while a company itself may treat that responsibly ... if the court orders it be turned over, there's not a lot that the company that holds the data can do," said Jennifer Urban, a law professor at the University of Southern California.

In the past, court orders and subpoenas have generally been targeted at records on specific individuals. With YouTube, it's far more sweeping, covering all users regardless of whether they have anything to do with the copyright infringement that Viacom Inc., in a $1 billion lawsuit, accuses Google Inc.'s popular video-sharing site of enabling.

It's a scenario privacy activists have long warned about.

"What we're seeing is (that) the theoretical is becoming real world," said Lauren Weinstein, a veteran computer scientist. "The more data you've got, the more data that's going to be there as an attractive kind of treasure chest (for) outside parties."

U.S. District Judge Louis L. Stanton dismissed privacy arguments as speculative.

Last week, Stanton authorized full access to the YouTube logs -- which few users even realize exist -- after Viacom and other copyright holders argued that they needed the data to prove that their copyright-protected videos for such programs as Comedy Central's "The Daily Show with Jon Stewart" are more heavily watched than amateur clips.

"This decision makes it absolutely clear that everywhere we go online, we leave tracks, and every piece of information we access online leaves some sort of record," Urban said. "As consumers, we should all be aware of the fact that this sensitive information is being collected about us."

Mark Rasch, a former Justice Department official who is now with FTI Consulting Inc., said the ruling could open the floodgates for additional disclosures.

Though lawyers have known to seek such data for years, Rasch said, judges initially hesitant about authorizing their release may look to Stanton's ruling for affirmation, even though U.S. District Court rulings do not officially set precedence.

The YouTube database includes information on when each video gets played. Attached to each entry is each viewer's unique login ID and the Internet Protocol, or IP, address for that viewer's computer -- identifiers that, while seemingly anonymous, can often be traced to specific individuals, or at least their employers or hometowns.

Elsewhere, search engines such as Google and Yahoo Inc. keep more than a year of records on your search requests, from which one can learn of your diseases, fetishes and innermost thoughts. E-mail services are another source of personal records, as are electronic health repositories and Web-based word processing, spreadsheets and calendars.

One can reassemble your whereabouts based on where you've used credit cards, made cell phone calls or paid tolls or subway fares electronically. One can track your spending habits through loyalty cards that many retail chains offer in exchange for discounts.

Though companies do have legitimate reasons for keeping data -- they can help improve services or protect parties in billing disputes, for instance -- there's disagreement on how long a company truly needs the information.

The shorter the retention, the less tempting it is for lawyers to turn to the keepers of data in lawsuits, privacy activists say.

With some exceptions in banking, health care and other regulated industries, requests are routinely granted.

Service providers regularly comply with subpoenas seeking the identities of users who write negatively about specific companies, at most warning them first so they can challenge the disclosure themselves. The music and movie industries also have been aggressive about tracking individual users suspected of illegally downloading their works.

Law enforcement authorities also turn to the records to help solve crimes.

The U.S. Justice Department had previously subpoenaed the major search engines for lists of search requests made by their users as part of a case involving online pornography. Yahoo, Microsoft Corp.'s MSN and Time Warner Inc.'s AOL all complied with parts of the legal demand, but Google fought it and ultimately got the requirement narrowed.

In the YouTube case, Viacom largely got the data it wanted.

Google has said it would work with Viacom on trying to ensure anonymity, and Viacom has pledged not to use the data to identify individual users to sue. The YouTube logs will also likely be subject to a confidentiality order.

But privacy advocates warn that there's no guarantee that future litigants will be as restrained or that data released to lawyers won't inadvertently become public -- through their inclusion as an attachment in a court filing, for instance.

And retailers, government agencies and others are regularly announcing that personal information, stored without adequate safeguards, is being stolen by hackers or lost with laptops or portable storage drives.

"You just never know," said Steve Jones, an Internet expert at the University of Illinois at Chicago. "There are some circumstances under which what seems to be private information is going to be shared with a third party, and the court says it's OK to do that."

Copyright Technology Review 2008.

Labels: aol, google, health information, laptop, litigation, privacy, retention, Viacom v Google

It is not often that a columnist for a major national newpaper calls a federal court judge a moron, but that's just what Michael Arrington on the Washtington Post website calls Judge Stanton, referring to Viacom v. Google/YouTube. See: Judge Protects YouTube's Source Code, Throws Users To The Wolves - washingtonpost.com.

Labels: google, litigation, privacy, Viacom v Google

Hot off the presses: The Information and Privacy Commissioner of Ontario has written to Google calling for Google to appeal the recent Viacom v. Google disclosure order:

CNW Group OFFICE OF THE INFORMATION AND PRIVACY COMMISSIONER/ONTARIO Privacy Commissioner Ann Cavoukian urges Google to appeal YouTube ruling

Privacy Commissioner Ann Cavoukian urges Google to appeal YouTube ruling

TORONTO, July 10 /CNW/ - Ontario Information and Privacy Commissioner Ann Cavoukian is urging Google to appeal the recent ruling of U.S. District Court Judge Louis Stanton, requiring the disclosure of YouTube users' information to Viacom. YouTube, a popular website, is owned by Google.

In a letter to Sergey Brin, Google's President of Technology, the Commissioner emphasized her deep concerns about the privacy implications of the ruling, which she was asked to outline earlier this week on Canada AM.

Commissioner Cavoukian said "I was astounded to learn that Google had been ordered to disclose certain YouTube information, which includes users' login IDs and IP addresses, for use in Viacom's copyright infringement lawsuit against YouTube." The Commissioner felt that Judge Stanton had "failed to consider that user login IDs and video viewing habits can reveal a great deal of sensitive personal information."

In response to suggestions that the data be "anonymized" before its release to Viacom's legal counsel, the Commissioner noted that it is possible to re-identify individuals by linking their data with publicly available personal information, such as that found in telephone directories. "Simply stripping certain data fields from a database is not sufficient to safeguard the privacy of individuals" warned the Commissioner.

Despite the Judge's associated protection order which attempts to limit the authorized uses of YouTube users' information by Viacom, this does not eliminate the Commissioner's concerns. Companies simply cannot guarantee that information, once obtained, will not be subject to unauthorized use or disclosure. "Witness the example of identity theft" she noted. "The majority of instances of identity theft result from insider abuse."

"While I have sympathy for the rights of intellectual property holders, businesses should not rely on the surveillance of consumers to protect their copyright interests. It is not acceptable to allow copyright enforcement to come at the expense of users' privacy."

The full text of the letter to Google may be found on the Commissioner's website at www.ipc.on.ca in the What's New section.

Previously: Commentary on the YouTube / Viacom order, Judge orders that YouTube hand over viewer records.

Labels: google, litigation, privacy, Viacom v Google

I had the chance yesterday to read the decision in Viacom International v. YouTube (previously: Canadian Privacy Law Blog: Judge orders that YouTube hand over viewer records). The request and the order are appalling from a privacy point of view, in my humble opinion.

It appears clear from the decision that Viacom, et al. were ostensibly not looking for information about users of Google Video and YouTube, but this will certainly be the side-effect. In the preliminary motion, Viacom was seeking a number of orders from the court to help it build its billion dollar case for copyright infringement against the video sites. Because the vast majority of the content is uploaded by users, Viacom is going after YouTube on the basis that they assist and encourage the violation of copyright by users and are therefore responsible financially for it. The reason put forward by Viacom for seeking the full user logs was to compare the viewership (aka hits) of allegedly pirated content against viewership of non-pirated materials. If they can show that allegedly pirated content is more popular, the reasoning goes, they can show that YouTube has a financial interest in allowing pirated content on the site.

Google attempted to argue to the Court that handing over the raw logs would be intrusive of privacy for the sites' users. Unfortunately for the users, the Court didn't put much weight in these arguments as it referred to Google's past positions that IP addresses cannot identify individuals:

Defendants argue that the data should not be disclosed because of the users’ privacy concerns, saying that “Plaintiffs would likely be able to determine the viewing and video uploading habits of YouTube’s users based on the user’s login ID and the user’s IP address” (Do Decl. ¶ 16).

But defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative. Defendants do not refute that the “login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube” which without more “cannot identify specific individuals” (Pls.’ Reply 44), and Google has elsewhere stated:

We . . . are strong supporters of the idea that data protection laws should apply to any data that could identify you. The reality is though that in most cases, an IP address without additional information cannot.

Google Software Engineer Alma Whitten, Are IP addresses personal?, GOOGLE PUBLIC POLICY BLOG (Feb. 22, 2008), http://googlepublicpolicy.blogspot.com/2008/02/are-ip-addresses-personal.html (Wilkens Decl. Ex. M).

So why does Viacom need the full logs? Because they need to try to determine unique viewership of the content. They need a way to distinguish one viewer from another.

Do they need full IP addresses? I don't think so. While we are talking about terabytes of data, it would be trivial to run all the logs through a software routine that would use a "one way hash" to make each IP address unique while not disclosing the IP address itself.

Why the big deal? While Viacom obtained the information for one purpose (to build its case against YouTube), it may be able to use the information for other purposes. At least in Canada, that would be covered by the implied undertaking rule that would require court permission before using it for any other purpose. But the bigger deal is the chilling effect on viewers. Casual web surfers may know that somewhere their digital footprints are being recorded, but they don't spend a lot of time thinking about it. This case should make internet users think carefully about where they are surfing, what they are viewing and the fact that once personal information is recorded and retained, it will be available for all kinds of secondary uses. Some of these secondary uses, such as litigation or criminal investigations, are beyond their control and there is no opt-out. The Viacom order includes the personal information of innocent viewers who were only viewing public domain or properly licensed content. Those logs include my IP addresses, which includes information about what I've viewed and what my kids have viewed. I'm sure that it includes your IP address too.

What to do? If you are an online service provider, don't create logs. If you create logs, don't keep them. It's that simple. (If you are about to be served with a subpoena, don't delete them. It's too late and you'll be hit with accusations of spoliation.) If you are an internet user, look into Tor.

Labels: google, ip address, litigation, privacy, Viacom v Google

This is some pretty scary stuff. Not only has Viacom (shame on Viacom) demanded that Google hand over the records of all users who viewed certain YouTube videos (yup, viewed not uploaded) but a Judge has actually ordered this. Perhaps not surprisingly, Google's argument that IP addresses are not personal information has been used against its arguments that handing over this information would be unduly intrusive of personal privacy. See: Judge Orders YouTube to Give All User Histories to Viacom Threat Level from Wired.com.

Labels: google, litigation, privacy, Viacom v Google

V. (W.R.) v. V. (S.L.), 2007 NSSC 251, is an application to vary a custody order with respect to the fourteen year old daughter of the parties. Initially, S.V., the father, was granted custody as the mother, W.V., was in addiction treatment. Some years later, the mother apparently is doing better and the daughter wishes to live with the mother.

During a follow-up hearing, the father produced photos posted by the daughter on Facebook as evidence of the mother's parenting deficiencies. This didn't seem to be of consequence for Justice MacAdam in his decision, but it is a further example of the collateral use of materials posted on social networking sites.

Here's the relevant paragraph:

W.R.V. (Petitioner / Respondent) v. S.L.V. (Respondent / Applicant)

Nova Scotia Supreme Court

A.D. MacAdam J.

Heard: May 2 - August 8, 2007

Judgment: August 28, 2007

Docket: SBW 1203-001812

...

31 Following the initial hearing, S.V. applied to reopen the presentation of evidence. For the subsequent hearing, he provided affidavits and at the hearing testified to a concern about S.V.'s parenting skills as a result of J.V. posting photographs of herself on a website known as "Facebook". He viewed S.V.'s handling of this as inadequate. He also deposed and testified to his lack of contact with his daughter since the initial hearing. S.V. responded that she spoke to J.V. about the Facebook postings and some of the photographs had been removed. She also confirmed the lack of contact by J.V. with her father, other than seeing and speaking to him a few times since the hearing. She says she has encouraged J.V. to speak to her father, but she does not wish to do so until this matter is concluded. S.V. says J.V. is upset that the legal proceedings have dragged on....

Labels: facebook, litigation, privacy, social networking

In case you were wondering, you really shouldn't expect that anything you post on your MySpace page will be kept private. If you are in the middle of litigation alleging that you're disabled, don't post pictures of your skiing vacation.

This recent case from earlier this month in Ontario is, I think, the first Canadian case to mention MySpace. The defendants attempted to use info from the plaintiff's MySpace page as a basis for further discoveries.

Weber v. Dyck, 2007 CanLII 22348 (ON S.C.)

PDF Format

Date: 2007-06-12

Docket: 05-CV-4343CM

2007

Weber v. Dyck

Ontario Master

Master L.A.M. Pope

Judgment: June 12, 2007

Docket: 05-CV-4343CM

Master L.A.M. Pope:

1 This action was scheduled for trial at a settlement conference held on December 1, 2006. The trial is number one on the trial list to commence the week of June 18, 2007. The defendants seek leave to bring this motion and for production from the plaintiff of information and documents pursuant to Rule 48.04(1). The information and documents relate to three activities of the plaintiff that took place subsequent to the plaintiff's examination for discovery on October 13, 2005.

2 The relief sought subparagraphs 1 (iv) and (v) of the Moving Party's Record are no longer in issue for the purposes of this motion.

3 This action arises out of a motor vehicle accident that took place on February 11, 2003 in which the plaintiff alleges that she sustained serious and permanent injuries to her left wrist and to her body, as well as emotional and psychic trauma. The action is governed by the Bill 59 insurance regime and as such the plaintiff has the onus to establish that her injuries meet the "threshold"; that is, that she has sustained a permanent serious impairment of an important physical, mental or psychological function within the meaning of section 267.5(5) of the Insurance Act in order for her to be entitled to damages.

4 At that time of her examination for discovery on October 13, 2005, the plaintiff was enrolled in year one of the Masters of Business Administration (Co-op) program ("MBA") at the University of Windsor. She testified at her examination that she earned part-time income by teaching piano and playing piano at weddings and other functions, what her plans were for employment after graduation and her vacation plans.

5 The following is the defendants' evidence that gave rise to this motion. The defendants learned that the plaintiff had a MySpace web page wherein she posted photographs of herself and announced certain information about herself. The undated photographs are of the plaintiff, for example, involved in what can be described as a somewhat physical activity in the Swiss Alps, in Paris, playing piano and at her graduation. The information exchange on the web page indicates that the plaintiff resides in Toronto and has a "new job." Further investigation revealed that the plaintiff worked as a Brand & Marketing Analyst for Level 5 Strategic Brand Advisors, that she recently completed her MBA specializing in marketing and international strategy and that she earned an ARCT (Associate of Royal Conservatory Teachers) designation. By letter dated March 30, 2007, the defendants requested production from the plaintiff of certain documents and information arising out of the information on the MySpace web page. Having received no response to that letter, Mr. Dycha wrote again to Mr. Leschied by letter dated May 2, 2007 and in that letter, Mr. Dycha added to his request for production additional documents and information.

Should leave be granted pursuant to Rule 48.04(1)?

6 The defendants seek leave to bring this motion for production pursuant to Rule 48.04(1) which provides that the consequence of a party setting an action down for trial or a party consenting to an action being placed on a trial list (as is the case here), is that the party shall not initiate or continue any motion or form of discovery without leave of the court. (emphasis added).

7 As this case is subject to the civil case management rules of Rule 77, it was placed on the trial list at the settlement conference held on December 1, 2006. There is no evidence that either party did not consent to the action being placed on the trial list. In my view, the consequences of placing a case managed action on a trial list are more serious than with a non-case managed case. This is evidenced by comparing the provisions of Rule 48.07 with subrules 77.14(2) and (4). The latter rules require a certification by the plaintiff that all examinations, production of documents and motions arising out of examinations and production of documents have been completed before the settlement conference date. Essentially, the parties who consent to an action being placed on the trial list declare that they are ready for trial. Subrules 77.14(2) and (4) support the purpose of the civil case management rules of reducing unnecessary cost and delay, facilitating early and fair settlements and bringing proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding. In this case, the parties consented to the case being placed on the trial list with two exceptions as requested by the defendants and as ordered by Justice Nolan; firstly that the plaintiff deliver her x-rays by December 15, 2006, and secondly that the case be assigned an alternate trial date in the event the defendants did not have their expert reports by the June 18, 2007 trial list. The x-rays were delivered by the date ordered.

8 In order for the plaintiff to succeed in obtaining the right to further production of information and documents after a case has been placed on a trial list, they must first meet the requirements of Rule 48.04(1). The test for granting leave was aptly described by E.M. Macdonald J. in Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] 11 C.P.C. (3d) 236 (Ont. Gen. Div.) at 239, as follows:

The authorities make it clear that setting a matter down for trial is not a mere technicality of procedure. Before it can be vacated to permit any further discovery or other interlocutory proceedings, there must be a substantial or unexpected change in circumstances such that a refusal to make an order under s. 48.04(1) would be manifestly unjust.(emphasis added)

9 Plaintiff's counsel argues that the defendants were aware at the time of the mediation on July 26, 2006 and at settlement conference on December 1, 2006, that the plaintiff had graduated and therefore they should have brought this motion before agreeing to place the matter on the trial list. They further argue that given that the defendants consented to placing this matter on the trial list with the knowledge of the plaintiff's graduation, they should not be granted leave.

10 Firstly, there is no evidence before me of the above-noted allegations of the plaintiff. Secondly, it appears that Mr. Leschied provided Mr. Dycha with a copy of the plaintiff's transcript by letter dated December 20, 2006, several weeks following the settlement conference, (when the matter was placed on the trial list.) Moreover, the only evidence before me is that the defendants learned that the plaintiff had graduated on or about December 20, 2006, and that she had obtained a job and moved to Toronto when they discovered her MySpace web page. Therefore, it is my view that not only has the plaintiff had a substantial change in circumstances since this mater was placed on the trial list relating to her educational status, there has been a substantial change relating to her career, employment status and her place of residence. Albeit not all of these changes could be considered unexpected given her educational status at the time of her examinations for discovery, the test for leave does not require that the change in circumstances be substantial and unexpected. Therefore, I find that because there has been a substantial change in circumstances of the plaintiff since placing this matter on the trial list, it would be manifestly unjust in these circumstances not to grant leave for the defendants to bring this motion.

Rule 48.04(2)(b)(i) exception

11 The defendants submit that this motion falls within the exception set out in subrules 48.04(2)(b)(i). That rule provides that notwithstanding this matter being placed on the trial list, the plaintiff has a continuing obligation, pursuant to Rule 30.07, to disclose further relevant documents that come into her possession after serving an affidavit of documents or discovers that the affidavit is inaccurate or incomplete. If the plaintiff fails to make production of relevant documents she will be subject to the consequences set out in Rule 30.08. Rule 1.03 provides that a "document" includes data and information in electronic form.

12 The exception allowed in Rule 48.04(2)(b)(i) relates to subsequently discovered documents. The reason for this exception was explained by Master Dash in White v. Winfair Management Ltd., (2006) 16 C.P.C. (6th) (S.C.J.) at 48 as follows:

If a document is discovered and produced by the defendant after the plaintiff has completed his oral and documentary discovery and set the action down, it would constitute an unexpected change in circumstance that could mandate leave for further discovery thereon.

13 The defendants have requested the following documents:

1. a copy of the plaintiff's file from any employment placement agencies;

2. a copy of the plaintiff's current employment file and contact information relative to her immediate supervisor and individual in charge of Human Resources;

3. all photographs and video recordings from trips.

14 The defendants clarified that they were only seeking these documents for the last year and a half.

15 The first two documents set out above were not in the plaintiff's possession at the time of her examination for discovery on October 13, 2005 because they would have been created as a result of her graduating in the summer of 2006 and her subsequent job search. I am inclined to order production of these documents given the change in circumstances in the plaintiff's employment status and the fact that her income and job responsibilities are relevant to the threshold issue and the assessment of damages. Furthermore, there is no evidence before me that the defendants were aware that the plaintiff had graduated and/or had obtained a job at the time of the settlement conference on December 1, 2006. In fact, the plaintiff's evidence is that she did not provide the defendants with a copy of her transcript until December 20, 2006, following the settlement conference, as evidenced by Mr. Lescheid's letter of that date.

16 Regarding the third request above, clearly the photographs and video recordings requested were not in the plaintiff's possession at her examination for discovery such that the defendants could have requested them. The defendants urge me to grant the order based on the reasoning of the Master in the British Columbia case of Watt v. Meier , 2005 CarswellBC 3302 (S.C.) wherein it was the Master's opinion that in the hypothetical case where the main issue were a broken leg, where the plaintiff was claiming a significant disability and the defendant wanting to challenge the extent of the disability, then it would seem inherently possible that photographs from a vacation, where you may find somebody swimming or playing beach volleyball or all sorts of activities traditional on holidays, might be highly relevant to the question of the degree of a broken leg disability. I agree with the Master's reasoning; however, based on the reasons for my decision which follow, I have distinguished the Master's hypothetical case.

17 The defendants also rely on another case from the British Columbia Supreme Court of Tupper (Guardian ad litem of) v. Holding, [2003] B.C.J. No. 216wherein the plaintiff was ordered to produce vacation photographs. In that case the plaintiff sought damages for loss of her ability to enjoy life. The court stated that the documents sought include photographs of the plaintiff on vacation, posing or sitting with friends on the beach, and in front of various tourist sites; that is, they show her enjoying life. The court held that it was reasonable to conclude that the vacation photographs may assist the defendant in its defence of the plaintiff's claim. In both this case, as well as the Watt case, the motions were brought before the actions were set down for trial; therefore, the test for leave was not an issue before those courts.

18 I decline to order production of the photographs and video recordings for several reasons. Firstly, the parties consented to this action being placed on the trial list; therefore, they were deemed to admit that they were ready for trial. Secondly and more importantly, the defendants did not request production of the plaintiff's photographs and video recordings of her trip to Vancouver which she took the year before the examination. I fail to understand how the defendants would be entitled to photographs and video recordings of trips the plaintiff took after her examination for discovery when they did not see the relevancy in seeking production of photographs and video recordings of her pre-examination trips. The change in circumstances of the plaintiff relate to her career and employment status and has no relationship to her ability to travel which she testified to the fact that her injuries do not impact on her ability to travel. Lastly, the defendants have several images of the plaintiff from her MySpace web page with which they can cross examine the plaintiff at trial. This appears to be a form of further discovery to which the defendant is not entitled.

Rule 48.04(2)(b)(iv) exception

19 The defendants submit that this motion falls within the exception set out in subrule 48.04(2)(b)(iv). That rule provides that subrule (1) does not relieve a party from any obligation imposed by Rule 31.09 to correct answers given at an examination for discovery notwithstanding that the case was placed on the trial list. They further submit that in addition to the threshold issue at trial, another issue will be to what extent, if any, the plaintiff's avocational pursuits have been affected by her alleged injuries.

20 The information sought by the defendants is as follows:

1. a list of places the plaintiff sought employment;

2. details of the plaintiff's piano performances and piano lessons including sufficient details to identify and locate the persons for whom the plaintiff performed, along with the amounts received in compensation for services;

3. details of the plaintiff's travels for recreation or otherwise including particulars engaged in during her travels.

21 The defendants clarified that they were only seeking the above information for the last year and a half.

22 The questions and answers at issue are as follows:

Re: Career goals

154. Q. What's your ultimate ambition in terms of a career?

A. I'd like to get into international marketing, work for an international firm.

155. Q. Well, what do you mean by "international marketing"?

A. Global brand strategy.

156. Q. Okay. I'm going to guess that in order to do that you're going to have to potentially move from the city?

A. Yes.

157. Q. And do you have any objection to doing that?

A. No.

Re: Travel since the accident

377. Q. And have you had to travel anywhere since the accident for recreation or otherwise?

A. yes. I've travelled --

378. Q. (Interposing) Where have you been?

A. -- last September. I went to Vancouver last September.

Re: Piano

45. Q. Right, and the material that we've been given indicates that you also like to play piano. You teach piano --

A. (Interposing) I teach piano part-time.

387. Q. And you've got, you're still teaching the kids, right?

A. Correct.

388. Q. And how many hours?

A. Between 12 and 15. It's three, three evenings a week.

23 There is no evidence before me to suggest that these answers were not correct or were incomplete when given and that any time thereafter they became incorrect. Certainly certain aspects of the plaintiff's life have changed since her examination but that alone does not mean that her answers were incorrect or incomplete when made on October 13, 2005.

24 In particular, regarding the request for a list of the places the plaintiff sought employment, it is my view that notwithstanding the fact that there has been a substantial change in circumstances, this information is not relevant to any of the issues in this action therefore it is not to be produced. Regarding the requests for production of information about the plaintiff's piano performances, piano lessons and trips, I refuse to grant these orders because it can hardly be said that the defendants are now entitled to this information when they failed to ask for the same information for the period of time prior to the examination for discovery. To order production of this information would constitute a further form of discovery to which the defendant is not entitled.

Costs

25 Both parties filed Cost Outlines, however neither of them were complete in failing to specify the partial indemnity rate and actual rate or any of the points listed which are to be made in support of the costs sought. Both counsel attached a billing statement; however, a billing statement is not a substitute for setting out the partial indemnity and actual rates. These rates are some of the considerations in determining the cost order and without them an appropriate amount for costs cannot be determined. The Court cannot be expected to extrapolate the hourly rates from the billing statement and then calculate the partial indemnity rates. As the Costs Outlines were essentially useless for the purpose intended by the Rules, and given that the defendants were successful, at least in part, with their motion, costs are fixed at $750.00 payable by the plaintiff and the defendants forthwith.

Order

26 There shall be an order as follows:

1. The plaintiff shall produce the following within 7 days;

a) a copy of the plaintiff's file from any employment placement agencies; and

b) a copy of the plaintiff's current employment file and contact information relative to her immediate supervisor and individual in charge of Human Resources;

2. Costs to the defendants fixed in the amount of $750.00 payable forthwith.

END OF DOCUMENT

Labels: bc, british columbia, facebook, litigation, privacy

The Federal Court of Appeal yesterday released its decision in Blood Tribe Department of Health v. Canada (Privacy Commissioner). This is the important decision in which the Federal Court had held that the Privacy Commissioner had jurisdiction to review documents that are claimed to be privileged to determine if the privilege was properly claimed in a request for access (FCT case).

The Court of Appeal held (and forgive the bad OCR of a faxed copy of the decision -- a cleaned up version will appear shortly):

(e) How to Deal with a Claim of Solicitor-Client Privilege under PIPEDA

[31] Section 15 of PIPEDA permits the Commissioner to apply to the Federal Court in relation to any matter referred to in section 14 which in turn encompasses solicitor-client privilege pursuant to subsection 9(3) of that Act (supra, at paragraph 4).

[32] The Intervener, the Law Society of Alberta, directed the panel to the Supreme Court of Canada of R v, McClure, 2001 SCC 14 [McClure]. That case outlined useful principles to be applied regarding a review of solicitor-client privilege by civil and criminal courts. McClure faced sexual charges from twelve former students, including one 'J.C.' who had also commenced a civil action. In the criminal action, McClure sought production of JC's civil litigation file in order to determine the nature of his allegations and to test his motivation in fabricating or exaggerating incidents of abuse. Major J. outlhed a three stage procedural test to protect the solicitor-client privilege. In the first two stages, the party seeking privileged material must establish that there i s no other compellable source for the privileged information as well as an evidentiary basis upon which to conclude that the information would be legally useful. In the third stage, the judge must then examine the documents and will not release them unless satisfied that they would likely give rise to an issue of relevance pertinent to the ,ultimate disposition of the case.

[33] In my analysis, the Commissioner's ability to conduct her investigation is not fettered by a rule that protects privileged communication. In circumstances where a broad claim of solicitor client privilege is used as a shield to thwart on investigation, judges of the Federal Court are equal to the task of developing procedures that adequately minimize the potential invasion of the privilege (see also Goodis v. Ontario (Ministry of Correctional Services}, 2006 SCC 3 1 at paragraph 2 1).

V. Conclusion

[34] In summay, the Judge erred in adopting a purposive and liberal interpretation of paragraphs 12(l)(a) and (c) of PIPEDA and in adopting AIA principles in a PIPEDA review. The appeal should be allowed, the order of the Judge dated March 8, 2005 should be set aside and the Commissioner's order for production of rccords dated October 22, 2003 should be vacated. Costs to the appellant in this appeal. No costs were sought by the intervener, the Law Society of Alberta.

Labels: alberta, health information, litigation, ontario, pipeda review, privacy

Yesterday, the Office of the Privacy Commissioner of Canada posted a new finding based on two separate complaints related to a law firm conducting credit checks without consent (Commissioner's Findings - PIPEDA Case Summary #340: Law firms collected credit reports without consent (May 2, 2006)).

The Assistant Commissioner concluded that the complaints were well-founded. This represents a very important finding, not so much on the question of the appropriateness of the credit checks but on important questions of jurisdiction raised. The credit checks were apparently contrary to the agreement between the firms and the credit bureaus in question. However, in my humble opinion and with the greatest respect to the Assistant Commissioner, Complaint A was incorrectly decided.

Complaint A

An individual complained that a law firm collected his personal information, by conducting a credit bureau inquiry, without his knowledge and consent.

Summary of Investigation

The law firm confirmed that it did conduct the credit inquiry. It argued, however, that the OPC did not have jurisdiction in this matter, as the information was collected for personal purposes of a client in relation to possible litigation, and it would therefore not provide the Office with access to its records.

The Office asserted its jurisdiction with respect to the complaint on the basis that the collection occurred during the course of the law firm’s commercial activities.

The complainant had also filed a complaint with the credit bureau regarding the collection of his credit information. The credit bureau requires its member companies, such as the law firm in this case, to obtain express consent for the collection of credit information. Since the law firm failed to provide adequate information or cooperate fully with the credit bureau’s inquiries, the credit bureau concluded that the law firm did not have the complainant’s consent to the collection. As a result, the law firm’s membership privileges were suspended.

Findings

Issued May 2, 2006

Application: Paragraph 4(1)(a) establishes that Part I of the Act applies to every organization in respect of personal information that the organization collects, uses or discloses in the course of commercial activities. Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.

The Assistant Commissioner was satisfied that the collection occurred in the course of the firm’s commercial activities, and noted that as there was no general exclusion for the activities of law firms undertaken on behalf of their clients. The Office therefore found that it had jurisdiction in the matter, pursuant to paragraph 4(1)(a).

As for the collection, the law firm admitted that it had collected the complainant’s personal information, by way of credit inquiry. The complainant had alleged that this was done without his consent, and the law firm did not provide any evidence to the contrary.

The Assistant Commissioner therefore concluded that the information was collected without the complainant’s knowledge or consent, in contravention of Principle 4.3. She recommended that the law firm implement a policy that prohibits conducting credit checks without the individual’s consent, unless one of the exceptions to the requirement for consent, as set out in the Act, is applicable. The law firm responded by continuing to challenge this Office’s jurisdiction, maintaining that the issue did not involve any commercial activity. It stated that it continues to comply with the Act, as it has since the Act came into force. It also maintained that it does not collect the personal information of anyone without their consent. The Assistant Commissioner was not satisfied with this response, noting that the Act requires organizations to be open about their privacy policies and practices. The response from the law firm did not address the specific recommendation of the Office to implement a policy for obtaining consent to conduct credit checks. Nor did the response provide any further evidence that the Act was not contravened in this instance.

Accordingly, she concluded that the complaint was well-founded.

In my humble opinion, and based solely on this little snapshot of the facts provided above, the Assistant Commissioner was without jurisdiction to consider this particular complaint. The basis for the Commissioner's jurisdiction is in s. 4(1)(a) of PIPEDA, which states that Part I of the Act applies with respect to the collection, use and disclosure of personal information in the course of “commercial activities”. Commercial activities is further defined to mean an act or transaction or course of conduct that is of a “commercial character”. It is said that the law firm was acting for a client and that the client was engaged in litigation against the complainant. That the law firm is engaged in its own commercial activities should be irrelevant. It is merely the agent for its client.

This position is supported by the decision of Justice Dawson of the Ontario Superior Court of Justice in Ferenczy v. MCI Medical Clinic, [2004] O.J. No. 1775. Justice Dawson concluded that video surveillance of a medical malpractice plaintiff is not “commercial activity” for the purposes of PIPEDA:

25 The plaintiff submits that the private investigator (an organization) retained by the CMPA (an organization) was collecting and making a record (videotape) of the plaintiff's personal information (images) during the course of commercial activity (while being paid), and that as the plaintiff did not consent to the collection and release of the information, the investigator and the CMPA are in contravention of the Act.

26 For a number of reasons I disagree. I will deal with some specific reasons momentarily, but first I will make a few general comments.

27 The legislation in question is complex and so broadly worded that a reasonable argument could be made to extend its reach so far as to transform both civil and criminal litigation into something very different than it is today. The arguments advanced on behalf of the plaintiff here prove that point. On the basis of the plaintiff's argument, Dr. Weinstein might be permitted to take his own video camera and record surveillance evidence in his own defence, but a licenced private investigator could not do so on his behalf if he was being paid to do so.

28 This argument would extend to an accused in a criminal case. While there are exceptions in the Act that allow law enforcement agencies to investigate and collect information about a suspect or an accused, an accused would arguably be prevented from utilizing a private investigator, or other paid agent, to collect information or conduct surveillance that could be vital to his or her defence. …

30 One way to avoid this result, and I conclude it is the correct interpretation of the Act, is to apply the principles of agency. On this analysis it is the defendant in the civil case who is the person collecting the information for his personal use to defend against the allegations brought by the plaintiff. Those whom he employs, or who are employed on his behalf, are merely his agents. On this analysis s. 4(2)(b) of the Act governs. That section reads as follows:

>4(2) This part does not apply to ...

(b) any individual in respect of personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose;

The defendant through his representatives was employing and paying an investigator, to collect information for him. It is the defendant's purpose and intended use of the information that one should have regard to in determining the applicability of the Act. On the basis of this analysis I conclude that the defendant is not collecting or recording personal information in the course of commercial activity. He, through his agents, was collecting information to defend himself against the lawsuit brought by the plaintiff. This is a personal purpose in the context of the civil action brought against him by the plaintiff. In my view, this conclusion is consistent with the overall purpose of the Act which is aimed primarily at information collected as a part of commerce. [emphasis added]

The collection, use and disclosure of personal information in connection with private litigation is a private matter and not "commercial activity". Simply put, a claim for damages under the common law or litigation related to such a claim cannot be reasonably said to be a “commercial activity”. The fact that the relationship between the defendant, on one hand, and the law firm, on the other hand, is commercial is not relevant: As PIPEDA requires a “commercial activity” nexus to be applicable, the fact that the law firm is being paid is immaterial, no such nexus would exist and PIPEDA should not apply.

Parliament limited PIPEDA’s application to “commercial activities” (and federal works, undertakings and businesses) because federal jurisdiction is limited by the Constitution Act, 1867. In passing PIPEDA, Parliament relied upon its jurisdiction over the “Regulation of Trade and Commerce” contained in s. 91(2). A private lawsuit between two individual litigants (and all matters ancillary thereto), are a matter of “Property and Civil Rights in a Province”, which is an area of jurisdiction specifically reserved to the Provinces in s. 92 of the Constitution Act, 1867. Simply put, an attempt to enforce PIPEDA between two private individuals, acting in their private capacities (even if one is acting through a paid agent) would be an unconstitutional application of PIPEDA.

If Section 4(1)(a) is going to be read in such an expansive way, virtually all activities fall within "commercial activities". A public hospital will be engaged in commercial activities because it gets paid by medicare and because most attending physicians are actually incorporated contractors. (Even worse: some hospitals charge for casts and splints and private rooms!) All universities are engaged in commercial activity since they collect tuition and charge room and board. All public schools are engaged in commercial activities because students have to pay for field trips. All provincial government departments are engaged in commercial activity because you have to pay to register your car.

At the end of the finding, the following is noted:

For both complaints the Assistant Commissioner also indicated that she would pursue the matter in accordance with the Act and referred the cases to her litigation counsel. Shortly after being contacted by the Commissioner’s counsel, both law firms agreed to implement the recommendations thus avoiding the need to follow through with an Application in the Federal Court.

I can understand why the firms would not want to be drawn into an expensive proceeding in the courts, but it is regrettable that this finding will remain unchallenged.

Labels: litigation, pipeda findings, privacy, surveillance, video surveillance

The March 2006 edition of the Canadian Privacy Law Review is out and it includes the following article:

(Reprinted by permission of LexisNexis Canada. Inc., from Canadian Privacy Law Review,. edited by Michael Geist, Copyright 2006.)

With so much focus on PIPEDA, the PIPAs, the HIAs, PHIPA and others, the notion that there’s an independent tort of invasion of privacy has been somewhat lost in the shuffle as of late. Newfoundland, Manitoba, Saskatchewan and British Columbia, with their statutory torts for invasion of privacy have settled the debate in those provinces. Observers in the other common law provinces are left, from time to time, scratching their heads as to whether there even is an ability to bring a civil suit for invasion of privacy, independent of any wrong that is addressable under the personal information protection statutes or independent of another actionable wrong, such as trespass.

To use Newfoundland as an example, the Privacy Act[1] makes it an actionable wrong if someone violates the privacy of another:

Violation of privacy

3. (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of an individual.

(2) The nature and degree of privacy to which an individual is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, regard being given to the lawful interests of others; and in determining whether the act or conduct of a person constitutes a violation of the privacy of an individual, regard shall be given to the nature, incidence, and occasion of the act or conduct and to the relationship, whether domestic or other, between the parties.

The Act further clarifies what circumstances are presumed to be an invasion of privacy and also establishes specific defenses to the tort.

In the remaining common law provinces, including Ontario and the Maritimes, the court decisions have gone both ways about whether there is an independent tort of invasion of privacy. The recent case of Somwar v. MacDonald’s Restaurants of Canada Ltd.[2] opens the door further to this possibility in Ontario.

The facts in Somwar are relatively simple: The plaintiff, Mr. Somwar, was a MacDonald’s employee. The company carried out a credit check on Mr. Somwar without his knowledge or consent, and Mr. Somwar brought an action against MacDonald’s for invasion of privacy, seeking general damages and an award of punitive damages to dissuade the company from repeating this again with other employees. The defendant made an application under the Ontario Rules of Civil Procedure[3] to have the plaintiff’s statement of claim struck out as it disclosed no reasonable cause of action. It was argued that the laws of Ontario do not include the common right of action for invasion of privacy.

At this stage in litigation, the task of the Justice sitting in chambers is not to determine liability or even to decide whether the actions complained of are actionable. The sole task is to determine whether it is “plain and obvious” that the plaintiff’s claim could not proceed if the matter were to go to trial. The striking out a plaintiff’s claim is reserved for those circumstances where proceeding any further would be a waste of time for the parties and the courts. If there is a simple possibility that the plaintiff might succeed at trial, the Civil Procedure Rules are designed to allow it to run its course. Any pronouncements from the bench at this stage in the proceeding must be interpreted in light of this context. The question is not whether there is a common law tort of invasion of privacy, but rather whether there might be. In the result, Stinson J. determined that there might be and goes even further to say there should be.

Lacking any clear pronouncement from the appellate courts, Justice Stinson of the Ontario Superior Court of Justice canvassed a range of lower-court decisions dealing with alleged invasions of privacy. To this end, Stinson J. borrowed from the analytical framework set out by Dean William Prosser in his seminal California Law Review article, “Privacy”[4] and considered Ontario cases that addressed “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.”[5]

The cases cited by Stinson J. in Somwar that fall into this category do not provide unequivocal guidance on whether the such a tort exists. A handful of decisions from Ontario’s lower courts have allowed claims or have at least allowed actions to proceed to trial based upon alleged intentional invasions of privacy, many of which are also associated with other causes of action, such as nuisance.[6] On the motion to dismiss the plaintiff’s claim, the cases reviewed provide sufficient grounds for Stinson J. to conclude that it cannot clearly be said that there is no common law tort of invasion of privacy.

The foregoing is sufficient to dismiss the defendant’s motion, but the Court goes further and offers the conclusion that the time is right for a clear recognition of a common law right to privacy. Stinson J. begins this part of his analysis by posing the question: “is there a right to privacy in Canada and how is it protected?”[7]

In the age of the Charter, the Supreme Court of Canada has been explicit that the common law must evolve to become consistent with “Charter values”. The leading case on this point, Hill v. Church of Scientology of Toronto,[8] is cited by Stinson J., who quotes from Cory J.’s majority decision:

Historically, the common law evolved as a result of the courts making those incremental changes, which were necessary in order to make the law comply with current societal values. The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system. It follows that it is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter.[9]

Section 8 of the Charter provides individuals with a constitutional right that is analogous with the “right to be let alone”: “Everyone has the right to be secure against unreasonable search or seizure.” While the Charter only applies to individuals vis-à-vis the state, the Supreme Court’s pronouncements on Section 8 lead to the conclusion that Charter values require that the common law recognize a “right to be let alone” between individuals.

Stinson J. refers to the judgement written by La Forest J. in R. v. Dyment,[10] in which the Court identifies three zones of privacy, one of which is privacy of personal information. La Forest J. rooted this privacy interest in “the notion of the dignity and integrity of the individual.”[11] Recent advances in technology that can be used to collect and disseminate personal information also prompt Stinson J. to recommend that the common law make the incremental changes to keep up with Charter values and with potentially-intrusive technology:

[29] With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual’s personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual’s privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an “incremental revision” and logical extension of the existing jurisprudence.

While the importance of the Somwar case should not be overstated, keeping in mind that it relates to a motion to strike a statement of claim and is not a final, determinative judgement at trial. The test to be applied is only whether there could be such a cause of action, rather than whether there is one. However, the Court made the notable step of going beyond this simple question by propounding that the Charter and advancing technology may necessitate the updating of the common law to incorporate a clear right “to be let alone” between two private actors. Whether Justice Stinson’s decision will be followed by other lower courts and whether the appellate courts will concur are both open questions, but the decision should not be ignored as a simple interlocutory judgement on a low-threshold question. It likely represents part of a trend toward recognizing a free-standing right to privacy in those provinces where the legislatures have not stepped in to provide a statutory one.

* David T.S. Fraser is the chairman of the privacy group at McInnes Cooper and is also a part-time member of the Faculty of Law at Dalhousie University.

[1] R.S.N.L. 1990, c. P-21.

[2] 2006 CanLII 202 (Ont. C.J.) (http://www.canlii.org/on/cas/onsc/2006/2006onsc10045.html) (“Somwar”).

[3] R.R.O. 1990, Reg. 194, Rule 21.01(1)(b).

[4] William L. Prosser, “Privacy” (1960) 48 Cal.L.Rev. 383.

[5] Prosser’s article classifies invasions of privacy in the following categories: “(i) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (ii) public disclosure of embarrassing private facts about the plaintiff; (iii) publicity which places the plaintiff in a false light in the public eye; and (iv) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness”. Quoted in Somwar, at para. 9.

[6] Stinson J. refers to the following cases in this group: Capan v. Capan, [1980] O.J. No. 1361 (H.C.J.) (application to strike statement of claim; defendant did not establish that stalking, harassment and entry into the plaintiff’s home could not found a cause of action); Saccone v. Orr (1981), 34 O.R. (2d) 317 (Co.Ct.) (recording of a private telephone conversation that was subsequently broadcast at a municipal council meeting and then published in a local newspaper; Court concluded that the plaintiff “must be given some right of recovery” for actions of the defendant); Roth v. Roth, (1991), 4 O.R. (3d) 740 (Gen. Div.) (action related to blocking access to property and shutting off electricity of the plaintiff’s cottage; Court concluded that whether the case is actionable depends upon the circumstances and the rights in conflict; invasion of privacy is not derived from a property right and the interests of both the individual and society are served by proceeding); Lipiec v. Borsa, [1996] O.J. No. 3819 (Gen. Div.) (Court awarded damages related to removal of a fence between properties and erection of a surveillance camera pointed at the defendant’s (plaintiff by counterclaim’s) yard); Tran v. Financial Debt Recovery Ltd., [2000] O.J. No. 4293 (S.C.J.) (reversed on other grounds, [2001] O.J. No. 4103 (Div. Ct.)) (collection agency making repeated collection calls to plaintiff’s workplace after being advised to only call home number; plaintiff recovered under defamation, intentional interference with economic interests, intentional infliction of emotional suffering, and invasion of privacy); Garrett v. Mikalachki, [2000] O.J. No. 1326 (S.C.J.) (dispute between neighbours leading to recovery under “intentional infliction of emotional distress, nuisance or invasion of privacy, and harassment”) and Rathmann v. Rudka, [2001] O.J. No. 1334 (S.C.J.) (harassment amounting to nuisance and invasion of privacy).

[7] Somwar at para. 23.

[8] [1995] 2 S.C.R. 1130.

[9] Quoted in Somwar at para 26, from Hill at para 92.

[10] [1988] 2 S.C.R. 417 (“Dyment”).

[11] Quoted in Somwar at para 24, from Dyment at para 22.

Privacy Privacy Law Law Torts Invasion of Privacy

Labels: bc, information breaches, litigation, ontario, phipa, pipa, privacy, surveillance, tort