Privacy & Freedom of Information

Around this time last year, we blogged about the decision of the Ontario Superior Court of Justice (the “ONSC”) in Jane Doe 464533 v ND (“Jane Doe“), a case that effectively created a new privacy tort – “public disclosure of embarrassing private facts” (you can read our post here). It was a tort that responded to a disturbing trend on the internet where embarrassing images or videos of people are posted without their consent. Continue Reading Privacy Tort Update – Not So Fast on Public Disclosure of Embarrassing Private Stuff

Almost everyone in Canada is using a smart phone. Recent statistics tell us that more than 80% of 18-34 year olds are using smart phones. For each prior generation, 35-44 and 45-54, that number only drops by 10%, and the projection is that at least 85% for all age ranges, and as high as 98% for 18-34 year olds, will be using smart phones by 2018.[1] Or, you can simply check the number of smart phone users when you see anyone having to wait for anything.

Our embrace of connectivity drove businesses to provide employees with company-issued mobile phones. Now there is another shift, where employees are increasingly expecting or expected to use their personal devices for work-related matters.

Continue Reading Joining the BYOD party? Have fun, but be safe!

The U.S. Justice Department announced last week that they were dropping their court action in which they sought to compel Apple to create a backdoor to override their existing iPhone passcode protection software.

If you followed this story, you know that a public and controversial battle ensued between the Justice Department and Apple over access to the iPhone used by Syed Farook, one of the perpetrators of the San Bernardino terrorist attack.

Continue Reading DOJ v. Apple: Key Lessons for Employers

On December 3, 2015, the Ontario Legislature’s Bill 113, the Police Record Checks Reform Act, 2015(the “Act”) received Royal Assent. The Act represents the first provincial legislation of its kind to provide a comprehensive framework aimed at establishing a consistent standard governing how a “police background check” (“PBC”) is requested, conducted and disclosed in the Province.

Continue Reading Police Record Check Reform Act: Restricting Employer Flexibility in Favour of Individual Privacy

On June 30, 2015, the Canadian federal government passed a law (“Bill C-377”) requiring unions to publically disclose sensitive financial information within six months of their year-end.  The information will be published on the internet by the Minister of National Revenue.

Unless this law is repealed, it will come into force on December 30, 2015.  Unions who fail to comply may be fined $1,000 per day of non-compliance, up to a maximum of $25,000. Continue Reading Union Financial Information to be Published Annually on the Internet

Monitoring the use of company-issued technology is controversial.  For some, the notion of monitoring employees’ use of computers, smartphones, and emails is inconsistent with personal privacy.  To others, monitoring employees’ use of technology in the workplace is both the right and the responsibility of the prudent employer.

While Canadian courts and tribunals have generally accepted that employers can monitor employees’ use of technology, the limits on the nature and scope of such monitoring are murky at best.  Employers that have already implemented some form of technological monitoring, or are considering doing so, should keep in mind that the legal landscape is evolving.  There are some best practices to consider that may help to avoid problems. Continue Reading Someone to Watch Over Me: Employer Monitoring of Company Technology

As some of our regular readers might recall, in November 2013, the Supreme Court of Canada (“SCC”) released an interesting decision declaring Alberta’s privacy legislation, the Personal Information Protection Act (“PIPA”) unconstitutional, and giving Alberta’s legislature 12 months to come up with something new. In declaring PIPA unconstitutional, the SCC pitted a union’s freedom of expression against an individual’s right to privacy, holding that privacy legislation must be sufficiently flexible to allow a union to collect, use, and disclose personal information without consent for legitimate purposes, including to protect a union’s ability to communicate, to persuade the public, and to use one of its most effective bargaining tools: picketing.

Last month, the Alberta legislature passed the new PIPA which allows a union to collect, use, and disclose personal information without the consent of the individual to whom the information relates in relation to a labour dispute if the personal information is:

  • For the purpose of informing or persuading the public about a matter of significant public interest or importance relating to a labour relations dispute involving the trade union;
  • Reasonably necessary for that purpose; and
  • It is reasonable to collect the personal information without consent for this purpose, taking into consideration the relevant circumstances including the nature and sensitivity of the information. Continue Reading The Uncertainty of Privacy Law Continues: Alberta Amends its Privacy Legislation

The issue of patient confidentiality has come to the forefront for healthcare organizations after a number of recent privacy breaches in Ontario hospitals have come to light, including hospital staff improperly accessing the medical records of former Toronto mayor Rob Ford.

It is generally accepted that patients seeking healthcare, treatment or advice should be able to expect that their personal information will be kept confidential, and that it will only be disclosed as necessary for their care. Given the sensitive nature of such information, the Government of Ontario passed the Personal Health Information Protection Act, 2004 (the “Act”), which provides both guidance to healthcare professionals and peace of mind to patients.

When it first came into force ten years ago, the Act was Canada’s first consent-based health statute. In the years following its enactment, the Act has been highlighted as a model for personal health information laws in Canada and the United States. Moving forward, employers in healthcare settings must continue to be cognizant of the Act’s requirements, as well as its application in our increasingly digital and interconnected age. The increased use of electronic health records and digital record-sharing systems, for example, may require employers to take additional precautions in the future. The modernization of healthcare provision will necessitate the modernization of privacy policies. Continue Reading Protecting Patient Privacy: What Employers Need to Know

1. Introduction

In recent years, the lack of accountability and transparency of many public and private organizations has been forcefully brought to the forefront of public attention by the actions of Edward Snowden, Catherine Galliford and numerous others. The actions of these individuals have reignited the discussion over legislative protections for those who disclose the wrongdoings of their employers. Continue Reading State of Whistleblowing Legislation in Canada