The document covers privacy issues related to civil litigation in Canada, including pre-litigation access to employee communications, the application of privacy laws, and implications in the discovery and trial stages. It discusses the evolving landscape of privacy law, particularly concerning personal information and evidence, and highlights the need for balancing privacy rights with legal obligations. Various case studies and legal principles are referenced to guide legal professionals in navigating privacy challenges in litigation.

1. CBA Live Online PD - Privacy Issues in Civil Litigation Tuesday, February 9 th , 2010 Presented by the CBA National Privacy and Access Law and the Civil Litigation Sections Alex Cameron Associate Fasken Martineau LLP Dan Michaluk Partner Hicks Morley

2. Overview Overview Privacy law in Canada Pre-litigation Discovery Trial Watch for polls Q&A 2

3. Privacy law in Canada PIPEDA BC, Alberta, Quebec Health information privacy laws Common law tort Statutory privacy torts 4

4. Pre-litigation Access to employee stored communications First step is to determine if there are real rights and obligations Risk of Criminal Code liability limited Application of privacy legislation matters… but note Johnson v. Bell Canada Unionized workplaces are different 6

5. Pre-litigation Access to employee stored communications Most jurisprudence is by labour arbitrators Very strong property based views expressed… no expectation of privacy, no balancing of interests This may be changing Watch Quon in the USSC Watch Cole at the Ont. C.A. 8

6. Pre-litigation Regulation of surveillance – jurisdiction Are lawyers regulated because they engage in commercial activity? What is the affect of agency on PIPEDA application? Commissioner has asserted jurisdiction ( Case Summary 2006-340 ) Being challenged in New Brunswick – State Farm 9

7. Pre-litigation OPC Guidance on Covert Video Surveillance Purpose must be reasonable Consider scope of implied consent Limit collection Avoid third parties and blur third parties’ faces, license plates and addresses Engage private investigators appropriately What about other information gathering? 10

8. Pre-litigation Consider potential common law tort Somwar v. McDonald’s Shred-Tech Corp. v. Viveen plaintiff’s investigator obtained the defendants’ Bell telephone records pleading amended to add privacy tort claim relief from deemed undertaking to file complaint against the investigator under PIPEDA and PISGA 11

9. Pre-litigation Freedom of information/access to information laws P artial head start on discovery or help decide if litigation should be commenced Private sector laws Requests for access to personal information Requests to opposing party, non-parties, and counsel 13

10. Pre-litigation Parties must respond to access requests unless an exemption applies, e.g: Confidential business information Third party personal information Privileged information Information collected for investigation into breach of agreement or contravention of law Respond within 30 days at minimal or no cost How can privilege be protected? 14

11. Discovery Working with others to extract, process and review Confirm consent is not required to outsource Engage in due diligence vendor selection Enter into a vendor contract that limits the vendor’s use, disclosure, storage and retention Enter into a vendor contract that ensures the vendor employs reasonable safeguarding measures Administer the contract in a manner that ensures the vendor employs reasonable safeguarding measures 15

12. Discovery Disclosing party obligations under legislation Will rarely have express or implicit authorization So need to fit within an exception Watch for limitations when dealing with production outside of jurisdiction Watch for the notification requirements

13. Discovery Disclosing party obligations under legislation Protection of “personal information” in records Exceptions apply based on whether information (not records) producible Routine review new norm? (DOB, SIN, credit card) Not all personal information is contained in structured dBase fields… not always discrete…which can cause costs Do non-parties get standing at the motion? ( Angel Acres ) 16

14. Discovery Disclosing party obligations under legislation The deemed/implied undertaking is traditionally about control and not security Do you seek a protective agreement or order? Big questions about who is accountable under privacy legislation 17

15. Discovery M. (A) v. Ryan (SCC, 1997) Sexual assault claim… privileged claimed over psychiatric treatment records We start with a presumption that relevant evidence is producible Case-by-case ( Wigmore ) privilege may apply But based in concern for an over-riding public interest Protective terms “often appropriate” where a privacy interest is “compelling” 18

16. Discovery Social media: control and privacy issues What is in the user’s control vs. the SM site’s control? Check the applicable terms of use Expectations of privacy and public vs. private pages Need more than a bald assertion that a private page must be preserved What inferences can be drawn about what is contained on private pages? 19

17. Discovery Non-party production ISPs, banks and others are aware of their privacy obligations Normal course: contact the non-party and then obtain a court order Exceptional situations: fraud, emergencies and life threatening situations Consider protective orders to protect privacy 20

18. Trial Open courts and the internet “ Practical obscurity” concept – Reporters Committee (USSC, 1989) Relevant to publication bans, sealing orders and orders for in camera proceedings Internet tends to polarize the analysis Argument #1 –It’s on the internet so you have no more privacy claim Argument #2 –We can’t let it out there because it will be highly findable 21

19. Trial Admissibility Is there a privacy violation? ‘ personal purpose’ vs. commercial activity implied consent (OPC surveillance guidelines confirm) What consequences follow? evidence inadmissible? tort claim and privacy complaint Ferenczy v. MCI Medical Clinics 23

20. Summary Overview Privacy law in Canada Pre-litigation Discovery Trial 24

21. Questions? 25 Alex Cameron [email_address] twitter @a_cameron http://www.fasken.com/acameron Daniel Michaluk [email_address] twitter @ danmichaluk http://danmichaluk.wordpress.com

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