Wednesday, April 25, 2012

Did Ombudsman Manitoba appeal Justice Saull's ruling in the Vic Toews case?

Good Day Readers:

In early March this year a lawyer representing Vic Toews (Robert Tapper) filed an application in Manitoba Court of Queen's Bench requesting an order allowing Mr. Toews access to a list of names of those who had viewed his divorce file. Such was granted by Justice Richard T. Saull. Shortly thereafter, an article appeared in The Winnipeg Free Press reporting a citizen had contacted Ombudsman Manitoba asking it to appeal the decision. After that the trail went cold.

As fate would have it, we were in the process of contacting an official at Ombudsman Manitoba, as well as, a Queen's Bench administrator when we came upon the following fascinating analysis. Its author Dr. Teresa Scassa certainly doesn't want for credentials. Here's what we're attempting to ascertain:

(1) Is Ombudsman Manitoba empowered to appeal a Queen's Bench court order and if so what criteria does it use deciding which ones to challenge?

(2) Did it appeal Justice Saull's ruling?

We'll let you know what we're able to find out.

Clare L. Pieuk

Troubling Court Order Raises Privacy Concerns
By Teresa Scassa
Wednesday, March 28, 2012

On March 7, 2012, counsel for Tory cabinet Minister Vic Toews made an ex parte application for a court order that would compel the Registrar of the Manitoba Court of Queen’s bench to disclose any logs or requisition forms that would reveal the identities of anyone who had applied to view the files relating to Mr. Toews divorce proceedings. The application made reference to the fact that persons unknown had accessed the files, made copies of some of the documents, and posted them on the Internet. These acts had taken place during the so-called “Vikileaks” scandal; the person who disclosed the information was allegedly responding to the government’s lawful access bill before Parliament which critics have claimed could lead to unprecedented forms and levels of state surveillance of Canadians’ Internet activities. Mr. Toews had attracted a great deal of negative media attention leading up to the Vikileaks scandal when he publicly stated that a critic of the bill could either stand with the government or stand with the child pornographers.

The open courts principle in Canada means that not only the decisions of courts are available to the public, but that court hearings take place in public and that court records may also be consulted by members of the public. There are limits, of course. In appropriate circumstances courts may seal files, limit access to hearings, or place bans on the publication of all or some aspects of court proceedings. The person or persons who accessed the Toews divorce files were within their rights to do so.

The Justice Saull of the Manitoba Court of Queen’s bench granted the application and ordered the Registrar to disclose the information sought by counsel for Toews. This very troubling decision is brief, and offers no explanation of the basis for the order.

Ex parte proceedings are inherently non-adversarial; the opposing party, or the affected party, is not present to participate in the hearing or to provide their own perspective or arguments. In proceedings where an applicant (often seeking to launch a defamation suit) seeks a court order to compel disclosure of the identity of a person who has anonymously posted allegedly defamatory material about them on the Internet, courts have insisted that the applicant meet a stringent test in order to justify the violation of the privacy of the person engaged in the internet communications, and to justify compelling a third party to disclose information that they must otherwise keep in confidence. The elements of this test require the court to assess:

(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim

(ii) Whether the applicant has established a relationship with the third party from whom the information is sought such that it establishes that the third party is somehow involved in the acts complained of

(iii) Whether the third party is the only practicable source of the information available

(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and

(v) Whether the interests of justice favour the obtaining of the disclosure

None of these elements appear to have been considered in this case. Significantly, the applicant did not even allege that any legal wrong, such as defamation, was committed. The brief merely stated that the applicant “had a vital interest in knowing who accessed his personal affairs and published them on the interest [sic] as “retribution” for his fulfilling his mandate as a member of Her Majesty’s government.”

The lack of reasons for the decision to order the release of the information is troubling not just because the issues are important and deserve some articulation. The lack of reasons could also be taken as an acceptance of the assertions advanced by the applicant. Among these is the assertion that “there can be no privacy interests in filing a requisition to view a public document. Nor can there be public policy reasons to provide anonymity to persons who do this.”

Both of these assertions deserve closer scrutiny, something which was not permitted by the ex parte nature of these proceedings. Although Manitoba’s Freedom of Information and Protection of Privacy Act does not apply to “information in a court record,” the names of individuals who have requested access to court documents from the Registrar do not constitute information in a court record. This is information collected by the Registrar regarding access to records under their custody. Under the FOIPP Act, a public body (here the Registrar) may only disclose the personal information it collects in limited circumstances. This would seem, from the outset, to counter the argument that there is no privacy interest in this information. The Registrar is a public body with an obligation to protect and limit disclosure of the personal information which it collects; citizens have an expectation that this obligation will be met in accordance with the terms of the law.

The assertion that there are no “public policy reasons to provide anonymity” to persons who file requisitions to view public documents is quite simply baseless. There is no question of anonymity; individuals are required to provide their name when they access the information. The name becomes part of a record maintained by the institution. The issue is whether other people have any entitlement to access this information. Keep in mind that this information is not about the court proceedings themselves and has nothing to do with the open courts principle. It is information about the personal or professional interest taken by individuals in different court proceedings. Quite apart from the Registrar’s obligation to protect the personal information which it collects from individuals in this manner, one might ask what public interest is served by making such lists presumptively public; and whether a greater public interest is served by protecting individuals from undue scrutiny about what they choose to read.

It would seem that the issue comes down to the same one that arises in Internet defamation suits: under what circumstances should a court order access to records in the hands of third parties in which there is a privacy interest. The test for a Norwich order sets some important guidelines in order to avoid abuse. Perhaps most significantly, it asks whether the applicant has provided sufficient evidence to establish that they have suffered a legal wrong for which they are seeking redress. In this case nothing in the applicant’s brief alleges a legal wrong has been committed, or that legal action is even contemplated by the applicant.

The result in this case is that a Minister of the Crown successfully persuaded a court in an ex parte application which featured no concrete legal arguments and provided no evidence of a legal wrong, to disclose the names of individuals who had sought access to public court records (something which we are all entitled to do under the open courts principle). Although the brief alleges that access to the divorce records had been sought by the unnamed individual for “retribution” against the Minister, the fact that the brief makes no argument about any actual legal proceedings in relation to which the names are sought itself raises the spectre of retribution. Although the issue is one that potentially affects all court records, in this case, the power imbalance between a Minister of the Crown and any citizens who may have chosen to access these records for their own purposes is quite stark. There are much bigger public policy issues at play here and the public interest was not well served by this court decision.
Dr. Scassa began her academic career at Dalhousie Law School (1992-2007), where she taught many courses, including Intellectual Property, Law and Technology, Administrative Law, Public Law, Property Law and Professional Responsibility. She also served as Associate Dean of the Law School (2000-2004), and as Associate Director (2001-2005) and Director (2005-2007) of Dalhousie’s Law and Technology Institute. She joined the Faculty of Law, Common Law Section of the University of Ottawa in July 2007, and was awarded the Canada Research Chair in Information Law in the fall of 2007.  She currently teaches Introduction à la propriété intellectuelle et industrielle. She is also Vice-Dean of Research since July 2010.

She is the author of Canadian Trademark Law (LexisNexis/Butterworths, 2010) and is co-author of the book Electronic Commerce and Internet Law in Canada, (CCH Canadian Ltd., 2004). Her recent research has focused on intellectual property law, privacy law and law and technology. She has published articles on Canada's new Olympic and Paralympic Marks Act, on the protection of compilations of fact in copyright law, on the use of copyright law to restrain the parallel importation of goods (cited by the Supreme Court of Canada in Euro Excellence v. Kraft Canada), on the public domain in copyright law, and on issues relating to copyright in functional literary works and compilations. She has also published several recent articles on geospatial data and privacy. Recent co-authored papers include an article on the extraterritorial application of laws (cited by the Supreme Court of Canada in R. v. Hape), and a study on Radio Frequency Identification (RFID) and privacy. A full list of her publications, with hyperlinks to online materials can be found here.

Currently Dr. Scassa is involved in an interdisciplinary research project on legal issues pertaining to geographical information systems (with a focus on privacy and intellectual property issues). She is also one of a team of researchers funded by a SSHRC grant to explore the extraterritorial application of laws. Her current research also includes work on anti-ambush marketing legislation and the emerging IP right of association. Dr. Scassa is a member of the External Advisory Committee to the Privacy Commissioner of Canada, and sits on the Board of the Canadian Association of Professional Access and Privacy Administrators (CAPAPA). She is an editorial advisor to the girl-positive magazine Girlworks.


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