Posts Tagged ‘Privacy’

Shafik Bhalloo
Monday, September 29th, 2014    Posted by Shafik Bhalloo (posts) and Alisha Parmar (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.
Alisha Parmar
Alisha joined Kornfeld LLP as an associate in 2015 after completing her articles with the firm.

 

INTRODUCTION

In today’s workplace, privacy is an evolving issue and Canadian privacy law is developing rapidly. Perhaps surprisingly, only a handful of Canadian jurisdictions, (including British Columbia, Saskatchewan, Manitoba and Newfoundland) have privacy legislation that creates a statutory tort or civil right of action for invasion of privacy. Until recently, most Canadian jurisdictions could only rely on legislative schemes that applied in very specific contexts – there was no general remedy for an invasion of privacy, unless the claimant managed to successfully establish the existence of a common law right to bring a civil action.

That changed when the common law tort of invasion of privacy was given teeth by the Ontario Court of Appeal in Jones v Tsige, 2012 ONCA 32 (“Jones”), wherein the Court definitively recognized the common law cause of action for intrusion upon seclusion. In Jones, the tort of intrusion upon seclusion enabled the plaintiff to recover not insignificant damages for the invasion of her privacy where no legislative scheme applied and where she had suffered no pecuniary loss.

But the bite of Jones and the tort of intrusion upon seclusion do not stop there. This year, the Ontario Superior Court of Justice relied on Jones to certify a class action proceeding against an employer for, inter alia, vicarious liability of an employee’s tort of intrusion upon seclusion. While the case, Evans v The Bank of Nova Scotia, 2014 ONSC 2135 (“Evans”), has yet to proceed to trial, the decision is one to watch out for. Whether or not the employer is ultimately found liable for the employee’s breach of privacy, Evans serves as a reminder that the law around breach of privacy is progressing swiftly and that employers must keep up.

JONES V TSIGE

The Facts

The plaintiff, Ms. Jones, and the defendant, Ms. Tsige, were both employees of the Bank of Montreal (“BMO”). Another coincidental common factor was that Ms. Jones’ former husband had formed a common law relationship with Ms. Tsige. However, Ms. Jones and Ms. Tsige did not know each other, and they worked at different branches of the BMO in different positions.

By virtue of her position with the BMO, Ms. Tsige had access to Ms. Jones’ personal information, and on at least 174 occasions, using her computer at her workplace, Ms. Tsige did in fact access Ms. Jones personal information. The information included Ms. Jones’ date of birth, marital status, language spoken, residential address, and details of her financial transactions in her personal accounts with the BMO.

The BMO discovered Ms. Tsige’s activities and confronted her. Ms. Tsige admitted to the BMO that she had no legitimate reason for accessing Ms. Jones’ personal information. Instead, Ms. Tsige explained she had been accessing Ms. Jones’ information since she was in a financial dispute with her common law spouse (Ms. Jones’ former husband) and wanted to find out if he was paying Ms. Jones child support. Notably, Ms. Tsige did not make any copies of or disseminate Ms. Jones’ personal information.

The BMO disciplined Ms. Tsige by meting out a five-day suspension and denying her a yearly bonus. The BMO also issued her a warning that future repetition of her conduct would result in termination of her employment. Ms. Tsige was asked to review and discuss the BMO privacy principles and standards.

The Ontario Superior Court

Ms. Jones lodged an action in the Ontario Superior Court of Justice asserting that her privacy interest in her confidential banking information was “irreversibly destroyed” and claimed damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000 against Ms. Tsige.

The Court held there was no fiduciary duty owed by Ms. Tsige to Ms. Jones and dismissed the breach of fiduciary duty claim, finding there was no fiduciary relationship between them in the traditional or non-traditional sense.

With respect to the invasion of privacy claim, the Court rejected the notion that in Ontario a common law tort of invasion of privacy exists. As a result, the privacy claim was also dismissed. The Court stated that in spite of the dismissal, Ms. Jones was not without remedy because she could bring an action for invasion of privacy under the federal Personal Information Protection and Electronic Documents Act, 2000 c. 5 (“PIPEDA”).

The Ontario Court of Appeal

Ms. Jones appealed the Superior Court’s ruling to the Ontario Court of Appeal only on the ground that Ontario law does not recognize the tort of invasion of privacy. The Court of Appeal reversed the lower Court’s decision, recognized the tort of intrusion upon seclusion, and awarded Ms. Jones damages.

In order to come to the conclusion that the tort of intrusion upon seclusion exists in Ontario, the Court of Appeal conducted an extensive review of Canadian, American, and English jurisprudence on the tort of invasion of privacy. The Court found the comments of Professor Prosser particularly compelling, and stated that if Ms. Jones did have a cause of action for the invasion of her privacy, it would fall in Professor Prosser’s first category of invasion of privacy, namely intrusion upon seclusion.[1]

For her case, Ms. Tsige submitted that the existing Ontario and federal legislative framework addressing privacy is an adequate basis for the Court to refuse to recognize the emerging tort of intrusion upon seclusion. To that end, Ms. Tsige argued that expansion of the law in the area should be left to Parliament and the legislature.

The Court of Appeal considered and rejected this argument, pointing out the various deficiencies in the legislative framework with respect to Ms. Jones’ case. Namely, the legislation that Ms. Jones could use, PIPEDA, only deals with “organizations” that are within federal jurisdiction and does not address the existence of a civil cause of action for invasion of privacy within provincial jurisdiction. In addition, Ms. Jones would only be able to use PIPEDA to lodge an action against the BMO, not Ms. Tsige, and the statute would not permit her to recover damages. Further, the Court of Appeal identified that existing Ontario legislation does not provide for a private cause of action between individuals; it merely addresses individual privacy rights in the context of governmental and other public institutions.

The Court of Appeal then confirmed the existence of a right of action for intrusion upon seclusion, reasoning as follows:

Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.

For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially…

It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

The Legal Elements of Intrusion upon Seclusion

The Ontario Court of Appeal expressly adopted the key features of intrusion upon seclusion as delineated in the Restatement (Second) of Torts (2010). The legal elements are that:

  1. The defendant’s conduct must be intentional, which includes reckless conduct;
  2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
  3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.

The Court of Appeal opined that recognizing intrusion upon seclusion as a cause of action does not pose a serious risk of opening the proverbial “floodgates”. The Court stated only “deliberate and significant invasions of personal privacy” are caught by the tort and not de minimus cases:

Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

Nonetheless, the Court indicated that a plaintiff is not required to establish actual loss or damages as part of the cause of action. In this respect, the tort of intrusion upon seclusion is similar to the statutory causes of action for invasion of privacy which exist under the legislative schemes implemented in the four provinces, including British Columbia.

Having said this, the Court stated that where the plaintiff has suffered no pecuniary loss, only “symbolic” or “moral” damages are appropriate to acknowledge the wrong done. After considering Ontario case law and the Manitoba Privacy Act, the Court of Appeal established the upper range for damages where no pecuniary loss is suffered at $20,000. The Court then awarded Ms. Jones $10,000, the mid-point of the range, stating that Ms. Tsige’s conduct was “highly offensive to the reasonable person and caused humiliation, distress and anguish”, but that it did not qualify as “exceptional circumstances” meriting an award of punitive or exemplary damages – those awards were to be left for “truly exceptional circumstances”.

EVANS V THE BANK OF NOVA SCOTIA

The Facts

Evans also involves another major bank, the Bank of Nova Scotia (“BNS”), where an employee illegitimately accessed customer information. The employee, Mr. Wilson was a mortgage administration officer for the BNS, and as such had access to highly confidential customer information.

Over the course of approximately one year, Mr. Wilson accessed the files of 643 customers of the BNS and forwarded private information to his girlfriend. His girlfriend then distributed the information to individuals who used it to commit identity theft and other fraud. Unlike Jones, it was law enforcement and not the bank that uncovered the scheme. The arrangement and Mr. Wilson’s involvement was exposed by the Calgary Police in the course of executing a search warrant against individuals who were attempting to use the information to perpetrate fraud in Alberta. Mr. Wilson was confronted and confessed to improperly printing and accessing customer profiles for individuals who had applied for mortgages.

The BNS gave notice to the 643 individuals whose profiles had been accessed by Mr. Wilson (the “Notice Group”). Over 130 individuals from the Notice Group have since informed the BNS that they have been victims of identity theft or fraud. The BNS compensated those individuals for their financial losses and offered each individual in the Notice Group a complimentary subscription to credit monitoring and identity-theft protection service.

In spite of these efforts, the BNS, in addition to Mr. Wilson, was named as a defendant in a class action, with the class being the entire Notice Group. The Ontario Superior Court certified the Notice Group’s class action for, inter alia, the BNS’ vicarious liability for intrusion upon seclusion.

Vicarious Liability and Intrusion Upon Seclusion

The Ontario Superior Court relied on the Supreme Court of Canada’s decision Bazley v Curry, [1999] SCR 534 (“Bazley”) for the rationale to impose vicarious liability on an employer. In Bazley, McLaughlin J (as she then was) stated:

The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability…

In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:

    1.  the opportunity that the enterprise afforded the employee to abuse his or her power;
    2.  the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
    3.  the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
    4.  the extent of power conferred on the employee in relation to the victim;
    5.  the vulnerability of potential victims to wrongful exercise of the employee’s power.

[Emphasis in original]

The Ontario Superior Court further specified that “vicarious liability ‘is strict, and does not require any misconduct on the part of the person who is subject to it’: Straus Estate v Decaire, 2011 ONSC 1157, 84 C.C.L.T. (3d) 141 at para. 49.”

Applying this legal test to the conduct of the BNS, the Court found that, at least to the extent required to certify the class action, the BNS had enabled Mr. Wilson to commit the tort of intrusion upon seclusion:

[BNS] created the opportunity for Wilson to abuse his power by allowing him to have unsupervised access to customer’s private information without installing any monitoring system… Wilson was given complete power in relation to the victims’ (customers) confidential information, because of his unsupervised access to their confidential information. Bank customers are entirely vulnerable to an employee releasing their confidential information. Finally, there is a significant connection between the risk created by the employer in this situation and the wrongful conduct of the employee.

Furthermore, the Court’s decision to certify the class action for the tort of intrusion upon seclusion was not influenced by the BNS’ admission of responsibility to compensate the Notice Group for any financial losses. The BNS submitted that it accepted liability for the pecuniary losses of the individuals, as evidenced by the BNS’ willingness to financially compensate the members of the Notice Group that came forward as being victims of fraud. The Court refused to accept the BNS’ argument that it was not liable for further damages through vicarious liability for the tort of intrusion upon seclusion. Conversely, the Court distinguished the two types of damages and stated that the BNS’ “admission of responsibility to pay for the pecuniary damages suffered is a different situation from the absence of claim for compensatory damages”.

COMMENTS

Jones and Evans raise a number of thought-provoking issues for employers to consider, and the ramifications of the two cases extend well beyond Ontario.

Though it has yet to proceed to trial, Evans clearly brings to light the necessity of employers to keep up with the demands of privacy law. Employers who are neglectful in this regard may be held liable for not only the pecuniary damages associated with illegitimate access or use of private information, but also the moral or compensatory damages that may flow from a successful claim of vicariously liability for intrusion upon seclusion or applicable statutory causes of action for invasion of privacy.

In an increasingly technological world, employers have the responsibility to adequately supervise employees in their access to confidential or private information when such access is granted by virtue of employment. To this end, employers should have up-to-date privacy policies in place and ensure that employees are aware of what constitutes unauthorized access or use of private information. Employers should take active measures to ensure that these policies are implemented and followed, and it is recommended that the policies include mechanisms to monitor employee access to private information in order to identify potential abuse. Being proactive and having effective policies in place may assist employers in decreasing liability in the event that a claim of vicarious liability for an invasion of privacy is brought against the employer, or, in any event, may reduce the number and severity of potential claims by exposing unauthorized access sooner rather than later.

In addition, while the courts in British Columbia are not bound by the decisions of Ontario courts, the decision of the Ontario Court of Appeal in Jones and that of the Ontario Superior Court in Evans may still be relied upon as persuasive authority. In particular, the two decisions may be used to delineate the scope of privacy protection afforded in other jurisdictions, including provinces with general privacy legislation, since “privacy” is not defined in the statutes.

Moreover, Jones is a well-reasoned decision with an extensive overview of the relevant jurisprudence, legislation and authoritative academic literature on the tort of invasion of privacy. The Ontario Court of Appeal took judicial notice of the role of technological change and the growing threat it poses for privacy, making a highly persuasive case for other courts to “develop the common law in a manner consistent with changing society”.

Finally, the tort of intrusion upon seclusion may affect individuals outside of Ontario even before a decision is made to import the new cause of action to other jurisdictions. The Notice Group in Evans includes individuals who are residents of British Columbia and New Brunswick. The BNS attempted to argue that as against those 35 individuals, the claim of vicarious liability for intrusion upon seclusion could not disclose a reasonable cause of action, since the two jurisdictions have not yet recognized the tort.

The Ontario Superior Court chose not to preclude these individuals from utilizing the cause of action and instead commented that “[w]hile the Courts in British Columbia and New Brunswick have not as of yet recognized the tort of intrusion upon seclusion, I was not given caselaw to suggest that they have definitively shut the door on this cause of action.” In the end, the courts of British Columbia may decide to open the door to intrusion upon seclusion, and employers should be prepared for if, and when, they do.


[1] William Prosser, Law of Torts, 4th ed. (West Publishing Company, 1971) at p. 389:

  1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about the plaintiff.
  3. Publicity which places the plaintiff in a false light in the public eye.
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

 

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Shafik Bhalloo
Monday, January 7th, 2013    Posted by Shafik Bhalloo (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

By Shafik Bhalloo

In a recent criminal decision, R. v. Cole[1], the Supreme Court of Canada provided much needed guidance on when an employee may reasonably expect  data stored on his work issued computer will be treated as private. In this case, a high school teacher, who also worked with the school’s IT department in supervising computer use by students and staff, had authority to remotely access the data stored on student computers connected to the school network and accessed a student’s email account. The teacher found nude photographs of another student and copied them onto the hard drive of his school-issued laptop. Under the school’s Acceptable Use Agreement (“UA”), the teacher was allowed to use his work-issued laptop for both work and personal purposes. When a technician employed by the school, while performing regular maintenance work on the teacher’s laptop, discovered a hidden folder on the teacher’s laptop containing the said photographs, he notified the school’s principal. Pursuant to the latter’s instructions, the technician copied the pictures to a compact disc. The principal, subsequently, seized the laptop and, thereafter, the technician copied, on a second compact disc, temporary internet files from the laptop. The laptop was then turned over to the police, together with the two discs. The police, without obtaining a search warrant in advance, examined the contents of the laptop and the two discs and created a mirror image of the laptop’s hard drive. The teacher was later charged with possession of child pornography.

At trial, the teacher applied and was successful under section 8 and subsection 24(2) of the Canadian Charter of Rights and Freedoms to have the evidence against him excluded on the basis that it was obtained in a manner violating his constitutional rights under the Charter. On appeal by the Crown, the Ontario High Court of Justice reversed the lower court’s decision, finding that the trial judge erred in law in concluding that Mr. Cole had an objectively reasonable subjective expectation of privacy stating that the judge erroneously ignored the following contextual factors:

  • The teacher’s acceptance of the employer’s UA as terms of his employment, which afforded him knowledge that the data and information on the computer and drives assigned to him by the employer were not private;
  • The teacher also worked with the school’s IT department staff to supervise and monitor both the computer use by students and staff of the high school and the overall integrity of the school’s network, and, in this supervisory capacity, the teacher had domain-wide privileges which demonstrated to him that the data on his computer drives was accessible by employer representatives such as himself;
  • In light of the first two points above, indicators such as the teacher’s password and his exclusive possession of the laptop as part of his employment were not privacy indicators;
  • The teacher’s knowledge that the hardware and software in and connected to the laptop belonged to the employer.

On appeal by the teacher, the Court of Appeal of Ontario set aside the latter decision in part holding that the disc containing the temporary internet files, the laptop and the mirror image of its hard drive should be excluded. The Court of Appeal reasoned as follows:

[76] … the fact that the discs and laptop in this case had been lawfully seized by the principal and the school board and delivered to the police does not affect the continuing privacy expectations of the appellant. Police are not relieved from the stringent standard of obtaining judicial authorization to conduct a search or seizure based on reasonable and probable grounds, simply because they are provided with evidence in circumstances where the accused’s Charter rights were either not engaged or were not infringed in the initial gathering of that evidence….

[77] …The appellant’s privacy interest with respect to his laptop continued throughout its transfer to police, notwithstanding that it was the property of the school board, and already lawfully seized by them. Personal information was also stored on the laptop.

The police conducted a search and seizure of the laptop and seized the mirror image of the hard drive, capturing every piece of personal information the appellant may have stored on it, including the photographs of his wife, without a warrant.

[78] The appellant also had a privacy interest in his personal internet browsing history and what it revealed about his personal predilections and choices. In R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, at para. 3, the Supreme Court referred to this as ‘the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet’. Because the appellant had a continuing privacy interest in this information, the transfer of the disc with the temporary internet files to the police was a ‘seizure’ within the meaning of s. 8 of the Charter.

[79] The police search of the laptop and the disc with the temporary internet files is therefore prima facie unreasonable. The onus shifts to the Crown to establish that this warrantless search by police was nonetheless reasonable. There were no exigent circumstances. Both the school environment and the evidence were secure; the teacher was suspended and the police were in possession of the discs and the laptop. The school board had no authority to consent to the search. This warrantless search was not reasonable. Therefore, the police violated the appellant’s s. 8 rights when they searched the laptop and the disc with the temporary internet files.

However, the Court of Appeal viewed the disc containing images of the student differently, stating:

Given that the photographs were taken from the school’s network, using the school’s computer and were the subject of the privacy interest of a student, the appellant had no personal privacy interest in the data. The photographs were found by the technician in plain view, while engaged in permissible access. They were lawfully seized by the principal and transferred to police. As the functional equivalent of photographs in an envelope, the police did not need to conduct a further search of this evidence. Because the appellant had no privacy interest in the photographs themselves (as opposed to the presence of those photographs in the laptop), the delivery of the disc to police was not a seizure.

On Appeal by the Crown, the Supreme Court of Canada, while agreeing with the Court of Appeal that the teacher had a reasonable expectation of privacy in the circumstances and the police infringed the teacher’s privacy protected under section 8 of the Charter, allowed the appeal and set aside the decision of the Court of Appeal. In arriving at this conclusion, Mr. Justice Fish, writing for the majority of the Supreme Court, delineated the following instructive principles:

  • Whether at home or in the workplace, computers are reasonably used for personal purpose and contain information that is meaningful, intimate and touching on the user’s biographical core;
  • The user may reasonably expect privacy in the information contained on their computer particularly where personal use is permitted or reasonably expected;
  • While ownership of the computer and workplace policies are relevant considerations, neither is determinative of a person’s reasonable expectation of privacy;
  • The totality of all the circumstances will need to be considered to determine whether privacy is a reasonable expectation in any particular case;
  • Workplace policies and practices may diminish an individual’s expectation of privacy in a work computer; however they may not in themselves remove the expectation entirely;
  • A reasonable, though diminished expectation of privacy, is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter and subject only to state intrusion under the authority of a reasonable law.

Applying the above principles to the facts in this case, Fish J. stated the operational realities of the teacher’s workplace consisted of factors that pulled in competing directions. In particular, Fish J. noted that while the written policy, and actual practice at work, permitted the teacher to use his work-issued laptop for personal purpose, the policy and technological reality deprived him of exclusive control and access to the personal information he recorded on the laptop. More particularly, Fish J. noted that the written policy of the school, of which the teacher was reminded by the principal annually, provided that the data and messages generated on or handled by the employer’s equipment was owned by the employer and he was aware that the contents of his hard drive were available to all other users and technicians with domain administration right. On the totality of the circumstances, Fish J. concluded that the teacher had a reasonable subjective expectation of privacy in his internet browsing history and the informational content of his work-issued laptop; it contained information that was meaningful, intimate and touching on his biographical core.

Having said this, however, the Supreme Court did not find the school to have acted unreasonably or in breach of s. 8 of the Charter when its technician inspected the teacher’s laptop in context of routine inspection or when the school subsequently seized the laptop at the instruction of the principal because the school’s principal had a statutory duty to maintain a safe school environment. However, the school’s lawful authority did not afford the police lawful authority to conduct a warrantless search and seizure of the computer material and examine its contents, according to the Supreme Court. In particular, Fish J. reasoned:

[67] In taking possession of the computer material and examining its contents, the police acted independently of the school board (R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20, at pp. 58-60). The fact that the school board had acquired lawful possession of the laptop for its own administrative purposes did not vest in the police a delegated or derivative power to appropriate and search the computer for the purposes of a criminal investigation.

[73] The school board was, of course, legally entitled to inform the police of its discovery of contraband on the laptop. This would doubtless have permitted the police to obtain a warrant to search the computer for the contraband. But receipt of the computer from the school board did not afford the police warrantless access to the personal information contained within it. This information remained subject, at all relevant times, to Mr. Cole’s reasonable and subsisting expectation of privacy.

Having found that the police breached the teacher’s privacy rights under section 8 of the Charter, Fish J. embarked on an inquiry under s. 24(2) of the Charter, namely, whether the unconstitutionally-obtained evidence by the police should be excluded. Here, Fish J. considered a three-part balancing test set out in the Supreme Court’s decision in R. v. Grant[2]. In particular, Fish J. considered (i) the seriousness of the Charter-infringing conduct of the police; (ii) the impact of the breach on the Charter-protected interest of the teacher; and (iii) the society’s interest in the adjudication of the case on its merits. In setting aside the decision of the Court of Appeal and allowing the unconstitutionally-obtained evidence, Fish J. stated with respect to the first part of the Grant test:

[84] Regarding the seriousness of the Charter-infringing conduct, the courts below focused on the actions of Detective Constable Timothy Burtt, the officer who took possession of the computer material, who searched the discs, and who sent the laptop away for forensic examination. The trial judge concluded that this officer’s actions were ‘egregious’ (para. 26), and the Court of Appeal considered his conduct serious enough to favour exclusion.

[85] I am unable to share either conclusion.

[86] The police officer did not knowingly or deliberately disregard the warrant requirement. As events were unfolding in this case, the law governing privacy expectations in work computers was still unsettled. Without the guidance of appellate case law, D.C. Burtt believed, erroneously but understandably, that he had the power to search without a warrant.

[87] He did not act negligently or in bad faith. Nor does his conduct evidence insensitivity to Charter values, or an unacceptable ignorance of Mr. Cole’s rights under the Charter. The officer did not rely exclusively, as the courts below suggested, on his mistaken belief that the ownership of the laptop was necessarily determinative. While this was an important factor underlying his decision not to obtain a search warrant, the officer also turned his mind to whether Mr. Cole had an expectation of privacy in the laptop (p. 130). He was alert to the possibility that the hard drive contained private or privileged material (pp. 130-31 and 164). And he testified that he intended to respect Mr. Cole’s privacy interest in this regard (p. 131).

[89] …Where a police officer could have acted constitutionally but did not, this might indicate that the officer adopted a casual attitude toward — or, still worse, deliberately flouted — the individual’s Charter rights (Buhay, at paras. 63-64). But that is not this case: The officer, as mentioned earlier, appears to have sincerely, though erroneously, considered Mr. Cole’s Charter interests.

[90] Accordingly, in my view, the trial judge’s finding of ‘egregious’ conduct was tainted by clear and determinative error (Côté, at para. 51). On the undisputed evidence, the conduct of the officer was simply not an egregious breach of the Charter. As earlier seen, the officer did attach great importance to the school board’s ownership of the laptop, but not to the exclusion of other considerations. He did not ‘confuse ownership of hardware with privacy in the contents of software’ (trial reasons, para. 29).

With respect to the second part of the Grant test, Fish J. stated:

[91] Turning then to the impact of the breach on Mr. Cole’s Charter-protected interests, the question relates to ‘the extent to which the breach actually undermined the interests protected by the right infringed’ (Grant, at para. 76). In the context of a s. 8 breach, as here, the focus is on the magnitude or intensity of the individual’s reasonable expectation of privacy, and on whether the search demeaned his or her dignity (R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at para. 40; Grant, at para. 78).

[92] In his s. 24(2)analysis, the trial judge neglected entirely to consider the diminished nature of Mr. Cole’s reasonable expectation of privacy. Likewise, the Court of Appeal overlooked the fact that the operational realities of Mr. Cole’s workplace attenuated the effect of the breach on his Charter-protected interests.

[93] Moreover, the courts below failed to consider the impact of the ‘discoverability’ of the computer evidence on the second Grant inquiry. As earlier noted, the officer had reasonable and probable grounds to obtain a warrant. Had he complied with the applicable constitutional requirements, the evidence would necessarily have been discovered. This further attenuated the impact of the breach on Mr. Cole’s Charter-protected interests (Côté, at para. 72).

Finally, with respect to the third part of the Grant test, Fish J. stated:

Finally, I turn to the third Grant inquiry: society’s interest in an adjudication on the merits. The question is ‘whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion’ (Grant, at para. 79).

[95] Not unlike the the considerations under the first and second inquiries, the considerations under this third inquiry must not be permitted to overwhelm the s. 24(2) analysis (Côté, at para. 48; R. v. Harrison, 2009 SCC 34 (CanLII), 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 40). They are nonetheless entitled to appropriate weight and, in the circumstances of this case, they clearly weigh against exclusion of the evidence.

[96] The laptop, the mirror image of its hard drive, and the disc containing Mr. Cole’s temporary Internet files are all highly reliable and probative physical evidence. And while excluding it would not “gut” the prosecution entirely, I accept the Crown’s submission that the forensic examination of the laptop, at least, is “critical”: the metadata on the laptop may allow the Crown to establish, for example, when the photographs were downloaded and whether they have ever been accessed.

[97] In sum, the admission of the evidence would not bring the administration of justice into disrepute. The breach was not high on the scale of seriousness, and its impact was attenuated by both the diminished privacy interest and the discoverability of the evidence. The exclusion of the material would, however, have a marked negative impact on the truth-seeking function of the criminal trial process.

For the above reasons, Fish J. did not exclude the evidence unlawfully obtained by the police.

While the case is a criminal one and engages an individual’s privacy rights under s. 8 of the Charter since it involves state (police) intrusion of an individual’s privacy rights, the privacy principles articulated by Fish J. will undoubtedly be considered by courts in future employment law cases and employers should be mindful of those principles in structuring their relationship with their employees.

It is recommended that employers should implement clear policies that define, in unequivocal terms, the employer’s expectations surrounding workplace computer use, including smartphone use, if employers provide such equipment to employees in an employment context. Although Fish J., in R. v. Cole, stated that workplace policies are not determinative of a person’s reasonable expectation of privacy, if properly drafted a workplace policy combined with consistent employer actions in the workplace, may diminish, objectively, the employee’s reasonable expectation of privacy. For example, where both the employer’s workplace policy and the employer’s actions in the workplace are consistent in prohibiting any personal use by employees of employer-issued computers or smartphones and where the employee has acknowledge receipt of employer’s policy that provides that any data sent, stored or received using the employer’s computer or smartphone is the property of the employer and the employer reserves the right to perform random checks or audits of the employee’s computer or smartphone use, the employee may be hard pressed to argue that he or she has a reasonable expectation of privacy.


[1] 2012 SCC 53

[2] 2009 SCC 32

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Shafik Bhalloo
Monday, February 6th, 2012    Posted by Shafik Bhalloo (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

While British Columbia, Saskatchewan, Manitoba and Newfoundland all have general privacy legislation creating a statutory tort or civil right of action for invasion of privacy (see Business Law Blog publication at http://www.businesslawblog.ca/tag/tort/), most other Canadian jurisdictions do not have comparable legislation although they may have some statutory administrative schemes that govern and regulate privacy issues and disputes in more specific contexts.  Having said this, in these other jurisdictions, absent a specific applicable statutory scheme to protect one’s privacy rights, a claimant may be without a remedy for invasion of her privacy unless she can successfully establish the existence of a common law right to bring a civil action for invasion of privacy. This is precisely what the Plaintiff, Sandra Jones, did in the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 (http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htm), an appeal of the decision of the Ontario Superior Court of Justice.

Facts

In this case, Ms. Jones and the defendant, Ms. Tsige, were both employees of the Bank of Montreal (“BMO”) but worked at different branches of the bank in different positions – Ms. Jones as a Project Manager and Ms. Tsige as a Financial Planner.  The two did not work with or know each other.  However, Ms. Tsige had formed a common law relationship with Ms. Jones’ former husband and, by virtue of her position with the BMO, had access to and did access on her computer at the workplace, on at least 174 occasions, details of financial transactions in Ms. Jones’ personal accounts with the BMO.  She also had access to Ms. Jones’ other personal information with the BMO, such as date of birth, marital status, language spoken and residential address.  It should be noted that Ms. Tsige did not make copies of any of the personal information of Ms. Jones she accessed nor did she distribute the information to anyone.

When the BMO discovered Ms. Tsige’s activities and confronted her, she confirmed that she had no legitimate reason to access Ms. Jones’ accounts and knew what she was doing was contrary to BMO’s policies and her professional training.  However, she explained that she was involved in a financial dispute with her common law spouse (Ms. Jones’ former husband) and she was, by accessing Ms. Jones’ banking records, trying to confirm if he was paying Ms. Jones child support.

BMO discliplined Ms. Tsige by meting out a five-day suspension and denying her a yearly bonus.  The BMO also issued her a warning that any future repetition of her conduct would result in the terminationof her employment.  She was also asked to review and discuss with BMO privacy principles and standards.

The Ontario Superior Court of Justice

Ms. Jones lodged her action in the Ontario Superior Court of Justice asserting that her privacy interest in her confidential banking information was “irreversibly destroyed” and claimed damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000.  The Court held there was not any prior relationship between the parties that may be characterized as fiduciary in nature, whether in the traditional or non-traditional sense or categories, and therefore, Ms. Tsige did not owe Ms. Jones a fiduciary obligation and dismissed that claim.

With respect to her claim for damages for invasion of privacy, the Court reviewed some recent decisions in Ontario and rejected the notion that in Ontario there exists at common law a tort of invasion of privacy.  The Court went on to conclude:

… this is not an area of law that requires “judge-made” rights and obligations.  Statutory schemes that govern privacy issues are, for the most part, carefully nuanced and designed to balance practical concerns and needs in an industry-specific fashion.

In dismissing her claim for damages for invasion of privacy, the Court noted that this was not a case where Ms. Jones was without a remedy.  The Court noted that the Personal Information Protection and Electronic Documents Act, 2000, c. 5 (“PIPEDA”), applied to the banking sector and could have been employed by Ms. Jones to seek a remedy.  She could have filed a complaint with the Commissioner under that statute and ultimately obtained recourse at the Federal Court.

The Ontario Court of Appeal

While Ms. Jones did not appeal the Superior Court’s finding that Ms. Tsige did not owe her a fiduciary obligation, she appealed the Court’s finding that Ontario law does not recognize the tort of breach of privacy and the consequent dismissal of her claim for damages for invasion of her privacy.

The Court conducted an expansive review of the Canadian, American and English jurisprudence concerning the existence of a tort of invasion of privacy and was particularly influenced by Professor Prosser’s “four-tort” classification[1].  More specifically, Professor Prosser, in his review of privacy cases, concluded that the general right to privacy includes four distinct torts, each with its own considerations and rules.  In the case of Ms. Jones, the Court stated that if she has a right of action for invasion of her privacy then it falls within the first category of Professor Prosser’s classification, namely “intrusion upon seclusion” which is adopted by the Restatement (Second) of Torts (2010) and described as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The Court then went on consider and reject Ms. Tsige’s argument that the existing Ontario and federal legislative framework addressing the issue of privacy is a sufficient basis for the court to refuse to recognize the emerging tort of intrusion upon seclusion and that any expansion of the law in the area should be left to the Parliament and the legislature.  The Court also pointed out the deficiencies in the existing framework of privacy legislations as concerns Ms. Jones’ case with particular reference to the example of PIPEDA, which the Superior Court earlier suggested Ms. Jones could have engaged because it applies to the banking sector.  The Court noted that PIPEDA, as a federal legislation deals with “organizations” that are within the federal jurisdiction and does not address the existence of a civil cause of action for invasion of privacy in the province.  Moreover, under PIPEDA, Ms. Jones would be required to lodge a complaint against BMO and not the offender, Ms. Tsige, and the remedies under PIPEDA do not include damages.

In the case of provincial legislation, the Court also pointed out that existing Ontario legislation deals with individual privacy rights in context of governmental and other public institutions but does not provide for private rights of action between individuals.  In the result, the Court went on to confirm the existence of a right of action for intrusion upon seclusion reasoning as follows:

Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.

For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy.  In modern times, the pace of technological change has accelerated exponentially…. The Internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information.  As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable.  Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form.  Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

In so concluding, the Court expressly adopted the elements of the action for intrusion upon seclusion delineated in the Restatement (Second) of Torts set out above and went on to describe the key features of this cause of action as follows:

  1. The defendant’s conduct must be intentional which includes reckless conduct;
  2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
    1. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

In light of the above elements of the cause of action, the Court opined that there is not a serious risk of opening “floodgates” of litigation because a claim of intrusion upon seclusion will only arise where “deliberate and significant invasions of personal privacy” occurs and not in de minimus cases:

Claims from individuals who are sensitive or unusually concerned about their privacy are excluded:  it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

Damages

The Court indicated that it is not an element of the cause of action for intrusion upon seclusion for the Plaintiff to show proof of actual loss or damages.  In this respect, there is a parallel between the common law right of action recognized by the Court and the legislative scheme in the four provinces, including British Columbia, creating a statutory right of action for invasion of privacy.

Having said this, the Court went on to state that where, as in this case, the Plaintiff has suffered no pecuniary loss, only “symbolic” or “moral” damages may be appropriate to acknowledge the wrong done.  In determining what those damages should be in this case, the court considered case law from Ontario and also found helpful and instructive guidance in the Manitoba Privacy Act, which sets out the following catalogue of factors for determining appropriate range of damages:

1. the nature, incidence and occasion of the defendant’s wrongful act;

2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;

3. any relationship, whether domestic or otherwise, between the parties;

4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

The Court then established the upper range for damages where no pecuniary loss is suffered at $20,000 and went on to award Ms. Jones $10,000, the mid-point of the range.  While the Court found Ms. Tsige’s conduct “highly offensive to the reasonable person and caused humiliation, distress and anguish”, it did not qualify as “exceptional circumstances” meriting an award of punitive or exemplary damages.  The Court left open the door for such awards in the “truly exceptional circumstances”.

Comments

While courts in British Columbia are not bound by decisions of courts in other provinces, the decision of the appellate court of another province, the Ontario Court of Appeal in this case, may be relied upon as persuasive in appropriate cases in British Columbia and other provinces. It is, in my view, a very useful decision which lends to the definition of the scope of privacy protection that may be afforded in provinces including those provinces with general privacy legislations such as British Columbia, since privacy is not defined in the legislations.

Further, the decision of the Ontario Court of Appeal, in this case, is a very well reasoned and thoughtful decision that comprehensively considers jurisprudence and legislation in other jurisdictions including some very authoritative academic literature on the subject which only adds to its persuasiveness. I note, in particular, the Court takes judicial notice of the technological change in society and the growing threat this change poses to individual privacy with the introduction of new methods of collecting and storing personal data and information that is highly accessible in electronic form. In this environment, I think, the court makes a persuasive case for “develop(ing) the common law in a manner consistent with changing society” by recognizing a common law cause of action for intrusion upon seclusion.


[1] William Prosser, Law of Torts, 4th ed. (West Publishing Company, 1971) at p. p. 389:

1.      Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2.      Public disclosure of embarrassing private facts about the plaintiff.

3.      Publicity which places the plaintiff in a false light in the public eye.

4.      Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

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Shafik Bhalloo
Wednesday, November 9th, 2011    Posted by Shafik Bhalloo (posts) and Gareth Carline (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

The issue of employees’ misusing company computers is commonplace.  In 2000, Xerox was monitoring all of its 92,000 employees’ computer usage and terminated 40 employees in the United States for accessing pornography on work time[1].  Similarly, the luxury automobile company, Rolls Royce, suspended 14 employees for inappropriate use of the work internet computers[2].  Closer to home, the RCMP very recently suspended a long-standing officer for adult material found on his work computer[3].

Yet, despite the frequency of these events, there remains very little case law in British Columbia on the subject of spyware surveillance.  Largely the issue is raised in an arbitration context in union employment, for which there are distinguishing factors such as provisions in the collective agreements that address the subject.

On the legislative front, however, the applicable law on the subject is found in the Personal Information Protection Act[4] (“BCPIPA”).  The BCPIPA, it should be noted, has been ruled substantially similar to its federal counterpart, the Protection of Personal Information and Electronic Documents Act (“PIPEDA”). Therefore, the BCPIPA supersedes in British Columbia.  It is also noteworthy that the BCPIPA, unlike the PIPEDA, is not restricted to public works; it applies instead to “all organizations” (s. 3).

Also noteworthy in the BCPIPA is an interesting clause, section 13, concerning the collection, use and disclosure, without consent of employee, personal data that essentially states that consent is not required for reasonable collection of information, so long as notification is given.  Section 13 reads, in part:

COLLECTION OF EMPLOYEE PERSONAL INFORMATION

13

(1) Subject to subsection (2), an organization may collect employee personal information without the consent of the individual.

(2)    An organization may not collect employee personal information without the consent of the individual unless

(b)    the collection is reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual.

(3)    An organization must notify an individual that it will be collecting employee personal information about the individual and the purposes for the collection before the organization collects the employee personal information without the consent of the individual.

The onus is on the employer to establish that the personal information it is collecting about its employees, through installation of monitoring software on the company-owned computers, is “reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual”.  Moreover, the employer is required to “notify” the employee, in advance, that it will be collecting employee personal information [S.13 (3)].

An example of where the employer was found to have violated the statute with its spyware surveillance is Re University of British Columbia[5].  In that case, the university had a policy that allowed some incidental personal internet usage so long as it did not interfere with an employee’s work.  However, the university suspected a particular employee was spending too much time on personal internet usage and investigated by placing spyware on the employee’s computer.  The results led the university to terminate the employee, which led to wrongful dismissal arbitration.  The Privacy Commission held that the university had acted unreasonably, particularly in not first warning the employee about the impugned behaviour, and in violation of the notice requirements of the Act.  The Commissioner came short of ordering the evidence inadmissible at the arbitration, but strongly suggested that using such evidence was inappropriate and would undermine the privacy legislation in place.


[1] http://www.theregister.co.uk/2000/07/15/xerox_fires_40_in_porn/

[2] http://www.theregister.co.uk/1999/05/05/rollsroyce_emailers_jobs_still/

[3] http://www.theprovince.com/Senior+Mountie+docked+sexy+videotapes/5621049/story.html

[4] SBC 2003, c. 63

[5] 2007 CanLII 42407 (BC IPC)

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Posted by Shafik Bhalloo (posts) and Gareth Carline (posts) | Filed under Labour & Employment | ....
Shafik Bhalloo
Wednesday, October 26th, 2011    Posted by Shafik Bhalloo (posts) and Gareth Carline (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

In British Columbia, the Privacy Act (“Act”) enacted in 1968 was the first in the country.  It created a statutory tort or civil right of action for an invasion of privacy when the common law did not.  Section 1 of the Act reads:

Violation of Privacy Actionable

1 (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 another.

However, the right of privacy is not absolute, as sections 1(2) and 1(3), together, create a scheme that protects only a certain degree of privacy.  These provisions establish a two-step process to successfully advance a claim under the Act.

Under the first step, a person must establish that the claim of privacy is “reasonable in the circumstances” (s.1(2)).  The Act does not define privacy.  Instead, the Courts have adopted their own definition that it is, “(t)he right to be let alone, the right of a person to be free from unwarranted publicity”[1].

The Court has identified four types of privacy interests to be protected[2]:

  1. Intrusion upon a person’s seclusion or solitude, or into his private affairs;
  2. Public disclosure of embarrassing private facts about the person;
  3. Publicity which places the plaintiff in a false light in the public eye;
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

Perhaps the most important “circumstance” in determining whether the claim to privacy is reasonable, is the nature of the person’s location at the relevant time[3].  For instance, a person has a more reasonable expectation of privacy in their bedroom, than they do on the sidewalk.  In the workplace, there may be a similar difference between an employee’s break area and their work area.  However, while the location is significant, it does not override any other circumstances.  The courts have found a reasonable expectation of privacy despite being in a public location[4].

Under the second step of the test, the Court must consider the “nature, incidence and occasion of the act” and the “relationship between the parties” to determine whether the infringing act is a violation of that privacy.

A specific requirement is that a violation be done “wilfully” and without claim of right[5].  The word “wilfully” is narrowly interpreted to mean that the person must not only have intended to do the alleged act, but also that the person knew or should have known that their act would violate the victim’s privacy[6].  The term “claim of right” means that there must be at least an honest belief in the existence of a state of facts which, if it actually existed, would at law justify or excuse the act done[7].

The Act further circumscribes the scope of “violation” in section 2(2), by deeming specific acts as not violations, which include[8]: acts done with consent; acts incidental to defending one’s person or property; acts authorized by law, court process or court order; and publications that are of public interest or are fair comment on a matter of public interest.

Although the Act creates a potential liability to employers for breach of privacy, the statutory scheme has established several potential defences.  Further, and quite notably, the Act does not necessarily preclude relying on evidence collected in breach of the Act.  The Court has stated that video surveillance of an employee, whether it breached the Act or not, may be used in evidence of the employee’s termination[9].  Similarly, the Privacy Commissioner, in University of British Columbia (Re), 2007 CanLII 42407 (BC IPC) in dealing with the counterpart privacy legislation, the Freedom of Information and Protection of Privacy Act (“FIPPA”), restricted her order so as not to preclude evidence gathered by the employer, using a spyware to surveil an employee, from being used in the arbitration of the employee’s dismissal[10].


[1] Davis v. McArthur, 17 D.L.R. (3d) 760 (CA), paras. 7-8

[2] Heckert v. 5470 Investments Ltd., 2008 BCSC 1298, para. 73.  These four categories were also described as solitude, intimacy, anonymity and reserve by the author in A Preliminary Exploration of Workplace Privacy Issues In Canada, Vance Lockton and Richard S. Rosenberg, April 10, 2006, http://www.cs.ubc.ca/~lockton/workplace.pdf, at pg. 6.

[3] Silber et al. v. British Columbia Television Broadcasting System Ltd. et al., 25 D.L.R. (4th) 345, para. 18

[4] Heckert, supra., para. 81

[5] Section 1 of the Act.

[6] Hollinsworth v. BCTV 1998 CanLII 6527 (BC CA), (1998), 59 B.C.L.R. (3d) 121 (C.A.), at para. 29

[7] Hollinsworth, supra., at para. 13, see also Davis v. McArthur, 10 D.L.R. (3d) (BCSC) (overturned on other grounds)

[8] Section 2(2) and (3) of the Act.

[9] Richardson v. Davis Wire Industries Ltd., 1997 CanLII 4221 (BC SC) at para. 48

[10] University of British Columbia (Re), 2007 CanLII 42407 (BC IPC)

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Posted by Shafik Bhalloo (posts) and Gareth Carline (posts) | Filed under Labour & Employment | ....